Roosevelt Institute | Cornell University

The Evolving Right to Privacy

By Kyle OefeleinPublished February 25, 2016

Recent events have brought the issue of privacy front and center in american politics. With the passing of Justice Scalia, the future of american privacy seems more murky than ever.

    The Fourth Amendment guarantees a U.S. citizen the right to be secure against unreasonable search and seizure without probable cause. This provision established by our Founders has come under fire in a variety of contexts in the 21st century. As advances in technology pervade all aspects of our lives, our government is incentivized to take advantage of the increase in available information by the looming threat of terrorism.

    With the death of Justice Scalia, we lose an avid protector of the Fourth Amendment's protection of privacy. In Kyllo v. United States (2001), police illegally took thermal images of a man's home to discover a marijuana growing operation. In Kyllo, Scalia wrote for a divided 5-4 majority, asserting, "the Fourth Amendment's protection of the home has never been tied to the measurement of the quality or quantity of information obtained….In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes." Scalia reaffirmed this defense of the Fourth Amendment right to privacy In Florida v. Jardines (2013), when police brought a drug dog onto a man's porch to indicate drug activity inside, again, a marijuana grow operation, and in United States v. Jones (2012), when a man had his Jeep tracked with GPS devices without a warrant, leading to a drug trafficking conviction.

    Additionally, the battle over this very issue between the Obama Administration and Apple continues to escalate with the recent ruling of a federal magistrate judge in California. The court order demanded that Apple help write software to disable the defenses of the now nearly ubiquitous iPhone. Pressure has been mounting from the Justice Department for Apple to create a way for the F.B.I to break into the iPhone for months.  Apple has thus far refused, claiming the future of privacy is at stake. Pitted against the might of the government, the iPhone may no longer protect all our secrets.

    However, a recently declassified report from the National Security Agency's Office of the Inspector General seems to indicate that the government receives less data from American internet communications than many suspected. The report suggests that when the N.S.A. conducts internet surveillance, the network companies that operate the Internet are probably only turning over correspondence to, from, and about the N.S.A.'s specific foreign targets, rather than all the data they had access to, as many privacy advocates had assumed.
With so many issues of privacy unfolding on the world stage, the future of the issue seems unclear. Does the U.S. government's relative restraint in internet surveillance indicate it can be trusted to limit its level of invasiveness? Or instead, that a more transparent policy is needed? How do we balance safety with the right to protection from unreasonable search and seizure?

    Regardless, the question of privacy will be one of the most pressing of the 21st century.  With the Supreme Court in the midst of a crucial change, the future of this issue in the courts is murky at best.  In a country constantly threatened by terrorism, it seems only practical that privacy must be somewhat sacrificed to prioritize safety.  Yet where do we draw the line?  The Supreme Court will handle many questions along this vein in the upcoming decades, and the policies established will affect all citizens of the United States.