Privacy in Public

Abstract

As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development in the public nature of personal information culminating in the ubiquitous transparency of citizens. This ubiquitous transparency destroys any “reasonable expectation of privacy.” The essay then argues that transparency without privacy protection challenges the democratic values of public safety and fair governance. To restore the balance and relocate privacy away from the no longer workable “reasonable expectation” standard, the essay argues for a new normative approach to privacy that would protect observable activity where such activity is not “governance related,” but rather “private regarding.” The essay concludes by showing that this distinction is consistent with the First Amendment and draws on established doctrines in tort law and First Amendment jurisprudence.

Keywords: privacy, reasonable expectation of privacy, surveillance, U.S. v. Jones, Kyllo v. U.S., public significance

JEL Classification: K00, K10, K13, K30