Establishing A Reasonable Right to Privacy In An Age of Big Data and Big Government

​“Big Brother” is a colorful way of describing government intrusion into the private lives of citizens.  It also alludes to the innate fear of government that democratized populations share.  Although this fear is fairly tempered among most people, it does shape their attitudes toward government and public policies.  Americans, for example, tend to sympathize with corporations facing hefty tax bills and the wraith of regulators.  Traditionally, they have been willing to accept tax cuts that help big corporations at their expense as well as the weakening of regulator bodies that protect their interests, such as the Consumer Financial Protection Bureau.  It also inspires the “no snitch” mentality that prevents the victims of crimes from seeking police protection.  

Government can crush a person’s life over the simplest of issues, which is why the US Constitution outlines an array of prohibitions on what government can do.  It is why citizens need legal protections from government.  It is also why court cases like Carpenter v. United States are so important.  The underlying issue behind Carpenter v. United States is whether or not government can compel third parties telecommunication companies to preserve and turn over the cellphone records of suspects.  When dealing with a known drug dealer, the easy answer seems to be a clear “yes,” but not when that same answer applies to the general population.  It is especially true in an era when technology is rapidly changing the expectations of privacy.
 
Most Americans probably find it hard to sympathize with a drug dealer.  Frankly, not many people care about the rights of criminals, because the government and legal system exist precisely to protect people from criminals, not protect criminals from government.  Government must, however, also protect people from government.  To do that, it must protect the rights of accused criminals, whether innocent or guilty, by affording them the same legal protections as law abiding citizens.  In the case of Carpenter v. United States, the question before the Supreme Court is whether or not government needs a warrant to access cellphone records and other data captured by service providers.  
 
In the modern digital age, many believe a right to privacy does not exist.  They argue that people expect someone to be watching.  With no expectation of privacy, there is no right to privacy.  Fortunately, the legal system is bound by a higher standard than the rationales of technology enthusiasts who ignore social, moral, and legal concerns out of convenience.  Digital technology may make it harder to secure the private data of individuals, but it does not negate the rights of individuals to privacy.  It actually places a burden on technology firms to properly handle the private data of individuals they amass.  It also forces government to create new prohibitions on itself.  Consequently, how the Supreme Court decides Carpenter v. United States will help determine the burden placed on technology firms and government.
 
If the Supreme Court decides that the data captured while using a smartphone, or any other digital device, is the property of individual users, it will prevent authorities from accessing that data without a warrant.  It will also force technology companies to either secure or omit that data from their record keeping.  Where US laws force technology companies to collect data, it will place a costly legal burden on them, thereby generating lobbying and legal precedent against such laws.  In addition, it could transform the economics of the internet by prohibiting certain commercial uses of users data.  Ultimately, what matters is the rights of individuals.  The ability to seek solitude and avoid the public spotlight is an important human need, so there needs to be a right to privacy and the legal system needs to uphold that right.