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privacy_history.html
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<title>A Legal History of Privacy</title>
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<h3><a href="index.html">Home</a></h3>
<h1>A Legal History of Privacy</h1>
<h2><a name="fourthamendment">The 4th Amendment</a></h2>
<p>The 4th amendment to the Constitution of the United States reads:</p>
<blockquote>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote>
<p>The 4th amendment is used to create system of ‘warrants’, where police have to obtain written permission from a court before searching or seizing property. To obtain a warrant, the requesting party must establish ‘probable cause’, meaning that it is reasonable to believe that the search will yield evidence.</p>
<p>Over the decades, the Supreme court has interpreted the Fourth Amendment’s text as explicitly protecting privacy as control over one’s personal information. As such it has been instrumental in guiding new legislation for privacy and technology. However, the Fourth Amendment is part of the Bill of Rights, which was drafted in 1789. It's hard to imagine the founding fathers had email in mind when designing this amendment protecting against unreasonable search and seizure. While progressing technology creates more and more expectations of privacy and opportunities for that privacy to be violated, the Fourth Amendment is applied in more and more ways that it was not intended to be applied. Indeed, the Fourth Amendment is hardly a solid foundation for privacy in the modern age.</p>
<h2><a name="katzvusa">Katz vs. USA - 1967</a></h2>
<p>In 1967 Charles Katz was using a public phone booth to phone in illegal gambling wagers. Unbeknownst to him, he was also being recorded by an eavesdropping device attached to the outside of the phone booth by the FBI. Katz was convicted based on recordings gathered by the device but he appealed his conviction, arguing that the recordings were obtained in a manner that violated his fourth amendment rights. His appeal made it to the Supreme Court, which ruled in favor of Katz, making electronic wiretapping subject to the warrant requirements of the Fourth Amendment.</p>
<p>The ruling in Katz vs USA established a two-part test for determining the privacy of a situation. First, the individual must have a subjective expectation of privacy in the situation. So, in the case of Charles Katz, he had an expectation that his conversations could not be heard outside of the phone booth once he closed its door. The second requirement is that society at large must recognize that this expectation is reasonable, so society must also agree with Mr. Katz. This two-part test is still used extensively today in privacy litigation</p>
<img src="http://shark-tank.net/wp-content/uploads/2011/04/patriot-act.bmp" alt="USA Patriot Act" style="margin-left: auto; margin-right: auto; display: block;">
<p>Img 1. Illustration of the Patriot Act. Src: sharktank.net
<h2><a name="patriotact">The USA PATRIOT Act</a></h2>
<p>In 2001 after the events of September 11, President George W. Bush passed the <a href="http://en.wikipedia.org/wiki/Patriot_act">USA Patriot Act</a>. Although the act's primary purpose was to improve national security and reduce the possibility of terrorist attacks, the wording of the act left room for the law to be abused. Several portions of the act are ethically questionable at best, and unethical at worst.
<p>In the past, for federal investigators to perform a wiretap on an individual, they needed to obtain one warrant per device which they wanted to observe. With the Patriot Act, investigators can apply for a single warrant which allows <a href="http://www.fed-soc.org/doclib/20070326_rovingsur.pdf">roving wiretaps</a>, wiretaps which apply to multiple devices. While law enforcement officials argue that roving wiretaps help them pursue tech-savvy criminals, critics of the Patriot Act feel that roving wiretaps can lead to the violation of the privacy of non-criminals.
<p>Another important feature of the USA Patriot Act is its so-called "library records provision," a part of the act which allows for easier searches of business records by the government. This portion of the Patriot Act got its name when the F.B.I. <a href="http://www.nytimes.com/2005/08/26/politics/26patriot.html?_r=0">demanded library records</a> from a library for an individual under investigation. Unfortunately, the library records provision is particularly vague, meaning that a wide range of personal and business-related materials which may be investigated.
<p>The Patriot Act and its unfortunate provision erode the average American citizen's reasonable expectation of privacy. With roving wiretaps and easy access to business records, it is nearly impossible for Americans to know when their private information is being compromised by the government. Furthermore, although the Patriot Act was set to expire in 2011, and despite heavy opposition from civil liberties groups, President Obama authorized that the <a href="http://articles.washingtonpost.com/2011-05-27/politics/35263903_1_patriot-act-key-provisions-extension">act be extended</a> through 2015.
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