Schneier: It’s Time to Drop the ‘Expectation of Privacy’ Test
In his Wired column, security expert Bruce Schneier discusses the expectation of privacy test and how changing technology implicates this legal test.
Based on the 1967 Katz v. United States Supreme Court decision, this ["expectation of privacy"] test actually has two parts. First, the government’s action can’t contravene an individual’s subjective expectation of privacy; and second, that expectation of privacy must be one that society in general recognizes as reasonable. That second part isn’t based on anything like polling data; it is more of a normative idea of what level of privacy people should be allowed to expect, given the competing importance of personal privacy on one hand and the government’s interest in public safety on the other.
The problem is, in today’s information society, that definition test will rapidly leave us with no privacy at all.
In Katz, the Court ruled that the police could not eavesdrop on a phone call without a warrant: Katz expected his phone conversations to be private and this expectation resulted from a reasonable balance between personal privacy and societal security. Given NSA’s large-scale warrantless eavesdropping, and the previous administration’s continual insistence that it was necessary to keep America safe from terrorism, is it still reasonable to expect that our phone conversations are private? [...]
Even if society still has some small expectation of digital privacy, that will change as these and other technologies become ubiquitous. In short, the problem with a normative expectation of privacy is that it changes with perceived threats, technology and large-scale abuses.
Possibly related posts: