II. BACKGROUND

II. BACKGROUND

II. BACKGROUND

A comprehensive review of the vast compilation of existing privacy literature was beyond the scope of our research. Instead, we began by focusing on Samuel Warren and Louis Brandeis’s law review article,* The Right to Privacy,* ⁷ which fellow scholars have endlessly referenced. Warren and Brandeis contended that a right to privacy existed within American society and that this right was derived from earlier contract and property common law precedents.⁸ They argued that a right to privacy should be understood as a qualified right, simply meaning “the

⁵ See generally Milton Heumann et al., Privacy and Surveillance: Public Attitudes on Cameras on the Street, in the Home, and in the Workplace, 14 RUTGERS J.L.& PUB. POL’Y 37, 60–74 (2016) (examining the legal issues implicated in the increased use of surveillance).

⁶ See infra Part III.

⁷Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

⁸Id. at 208.

right to be let alone.”⁹ This explicit legal right was deemed fundamentally necessary in response to a multitude of factors:

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.¹⁰

The notion that privacy was a fundamental necessity is one of the central themes of another important piece of the literature on privacy. Alan Westin’s work, Privacy and Freedom, approached the issue of defining privacy and explaining its function within differing societies from a sociological perspective.¹¹ Westin stated that privacy was more than a personal preference, but instead, “an important functional requirement for the effective operation of a social structure.”¹² Warren and Brandeis presented their conception of a right to privacy within the legal understanding that this protection was qualified, not absolute.¹³ Similarly, Westin argued that each society struggles with finding “an overall equilibrium” between demands for privacy balanced with other societal demands.¹⁴ This struggle was conceptualized based on a crucial idea: “[A]ll individuals are constantly engaged in an attempt to find sufficient privacy to serve their general social roles as well as their individual needs of the moment. Either too much or too little privacy can create imbalances which seriously jeopardize the individual’s well-being.”¹⁵

In addition to this sociological conceptualization of privacy, Westin speculated that this endless struggle for achieving a balance between privacy and other societal interests could be seriously complicated by future technological developments.¹⁶ The first possible threat was that technological and legal developments would enable the expansion of sophisticated surveillance capabilities, which would threaten individual

⁹ Id. at 193; see also THOMAS COOLEY, A TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE INDEPENDENT OF CONTRACT 29 (1879) (Warren and Brandeis adopted the phrase from this treatise by Judge Thomas Cooley).

¹⁰ Warren & Brandeis, supra note 7, at 196.

¹¹ ALAN WESTIN, PRIVACY AND FREEDOM 2 (Daniel J. Solove, ed., 2d ed. 2015).

¹² Id. at 64 (quoting ROBERT MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE 375 (1957)).

¹³ Warren & Brandeis,* supra* note 7, at 214–18.

¹⁴ WESTIN, supra note 11, at 27.

¹⁵ Id. at 44.

¹⁶ Id. at 91–95.

and collective privacy.¹⁷ The second was that technological developments could increasingly allow outsiders to access information that an individual desired to remain confidential.¹⁸ Lastly, the already occurring practice of collecting data related to individuals’ activities could be vastly expanded to allow government and private organizations to compile a large collection of data that could effectively lead to a dossier on every individual.¹⁹ Westin’s three predictions proved to be incredibly accurate.

Case law on privacy matters is of comparatively more recent vintage. Initially, the Court gave its attention to matters of personal autonomy—birth control,²⁰ abortion,²¹ and then same-sex marriage.²² Then, more recently and more significantly for this paper, the Court began examining technological issues. In Riley v. California, law enforcement searched the car of appellant David Leon Riley after discovering his possession of an invalid driver’s license.²³ The search of his car was lawful, and led to his arrest for possession of firearms—but this was not the search Riley was appealing.²⁴ Upon searching his car, police confiscated his phone and searched that, as well.²⁵ The contents on his phone provided police with evidence of his gang affiliation, leading to separate charges, including shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm.²⁶ Riley appealed on his Fourth Amendment rights, arguing that the evidence found in his phone should not be admitted at trial.²⁷ The Court ruled in his favor, holding that the warrantless search exception (aimed at protecting law enforcement) did not apply, as digital data cannot possibly harm the officers, and the evidence could have easily been preserved until the officers obtained a search warrant.²⁸ The Court classified cell phones as “minicomputers”²⁹ that contain extensive

¹⁷ Id. at 97–143.

¹⁸ Id. at 145–49.

¹⁹ Id. at 173–84.

²⁰ See Griswold v. Connecticut, 381 U.S. 479, 480 (1965).

²¹ See Roe v. Wade, 410 U.S. 113, 116 (1973).

²² See Obergefell v. Hodges, 576 U.S. 644, 652 (2015).

²³ Riley v. California, 573 U.S. 373, 378 (2014).

²⁴ Id. at 379.

²⁵ Id.

²⁶ Id.

²⁷ Id.

²⁸ Id. at 398–99.

²⁹ Riley, 573 U.S. at 393.

private information and held that any information stored via “cloud computing” is not even technically on the arrestee’s person.³⁰

Chief Justice Roberts, in his opinion for the Court, addressed this concern by stating, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”³¹ Obtaining a warrant is necessary to search a phone, as it is a separate piece of evidence and phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”³² That the Chief Justice would liken cell phones to a person’s anatomy is a testament to the intimacy of the data stored on these devices.

In 2018, in Carpenter v. United States, the Court further distinguished between cell phones and other potential sources of evidence.³³ Rather than examining the protections for information found on a cell phone, as was done in Riley, Carpenter explored the protections for information about a cell phone, including the location and movements of the cell phone (and potentially its user).³⁴ Called “cell site” location information (CSLI), this data provided the evidence needed to charge appellant Timothy Carpenter with aiding and abetting armed robbery involving interstate commerce, making it a federal offense.³⁵ Carpenter appealed, claiming that the warrantless search and seizure of this data was a violation of his Fourth Amendment rights, and the Court agreed.³⁶ In a separate decision, the Court held that Fourth Amendment protections not only include property interests but extend to reasonable expectations of privacy.³⁷ With respect to privacy rights, the Court declined to extend the “third-party doctrine”—which argues that any information disclosed to a third party carries no reasonable expectation of privacy—to CSLI, as this type of location data is more intrusive than the third-party doctrine could reasonably encompass.³⁸ Thus, the Court required a separate warrant for the access of location data, further bolstering privacy rights in an evolving digital age.³⁹

³⁰ Id. at 397–98.

³¹ Id. at 403.

³² Id. at 384.

³³ Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018).

³⁴ Id. at 2214.

³⁵ Id. at 2212–13.

³⁶* Id.* at 2220.

³⁷ See Katz v. United States, 389 U.S. 347, 351–52 (1967).

³⁸ Carpenter, 138 S. Ct. at 2222.

³⁹ Id

Despite the increasing number of privacy-related cases appearing before the Supreme Court, scholars have continued to wrestle with conceptualizing the function of privacy within American society. Judge Richard Posner noted that privacy is simply misunderstood and is fundamentally about concealment.⁴⁰ Posner observed that “[individuals] want to manipulate the world around them by selective disclosure of facts about themselves,” and that this conception of privacy can be considered harmful rather than beneficial for society as a whole.⁴¹ Frequently critiqued by Solove and other fellow scholars, this portrayal of privacy is more controversial than not. In his work, Nothing to Hide: The False Tradeoff Between Privacy and Security, Solove argues that the lack of a definitive conception of privacy has resulted in separate privacy protections being continually balanced against other societal demands.⁴² Contemporary societal issues, particularly issues of national security, have resulted in individuals’ forfeiture of privacy protections for a wide range of benefits.⁴³

The idea that individuals have continued to trade privacy for other perceived benefits has also been addressed in the most recent notable work regarding privacy: Shoshana Zuboff’s *The Age of Surveillance Capitalism. *Individual information has become the fuel driving this new form of “surveillance capitalism,” which Zuboff defined as “parasitic and self-referential. It revives Karl Marx’s old image of capitalism as a vampire that feeds on labor, but with an unexpected turn. Instead of labor, surveillance capitalism feeds on every aspect of human’s experience.”⁴⁴ Furthermore, Zuboff explains how the commodification of individual behavior has created the most valued good within this new form of capitalism at the direct expense of privacy protections within society.⁴⁵

Finally, of importance for our work, we examined two major quantitative studies that presented a glimpse into American attitudes about the issue of privacy. The first study was published in 1981 by Alan Westin in the wake of the passage of the 1974 Federal Privacy Protection Act and the establishment of the Privacy Protection Study

⁴⁰ Richard A. Posner, The Right of Privacy, 12 GA. L. REV. 393, 393 (1978).

⁴¹ Id. at *400. *

⁴² DANIEL SOLOVE, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY 24–26 (2011).

⁴³ Id. at 55–57.

⁴⁴ SHOSHANA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM: THE FIGHT FOR A HUMAN FUTURE AT THE NEW FRONTIER OF POWER 7–8 (2019).

⁴⁵ See id. at 99–102.

Commission.⁴⁶ Westin’s study was designed to evaluate if this unprecedented federal legislation, which included the establishment of the Privacy Protection Study Commission, addressed privacy concerns highlighted in earlier published research.⁴⁷ Additionally, Westin sought to specifically identify “what degree privacy can and should be protected in an intensely service-oriented, technologically-based society—a society whose collective ‘marketplace’ is fundamentally fueled by the collection, storage, and use of the personal information of its citizens.”⁴⁸ The second major quantitative study we examined was the 2019 Pew Privacy Study, which was designed to gauge American attitudes toward specific contemporary privacy issues and potential threats facing them.⁴⁹ Despite being separated by thirty-eight years, data from both studies presented a significant number of interesting correlations that should be further explored in a separate research project examining American attitudes toward privacy over time.

II. BACKGROUND

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