Computers, Privacy & the Constitution


-- TaehyoungKwon - 23 Mar 2008

New York Gov. Eliot Spitzer resigned on March 12. amid a scandal over a $1,000-an-hour prostitute, ending a career built on pugnacious investigations of Wall Street crimes and an image of moral rectitude. The Democratic governor had faced intense pressure to resign and impeachment threats from Republicans since the New York Times reported Monday he was caught on a federal wiretap arranging to meet a prostitute in a Washington hotel room. AP reported. He proved not only he is stupid enough to be trapped in a classic Spitzer-type investigation, but also there is no privacy at all in this world. It seems that there is nowhere to hide for the people who live in our time because its implication is that “It can also happen to you.” Also, recent statistics by the Ministry of Information and Communication in Korea have revealed that e-mails and telephone messages intercepted by the government authorities such as the National Intelligence Service, prosecutors and the police in cooperation with a telecommunication service provider are sharply increasing in number. Specifically, according to Chosun Daily, intercepted telephone conversations totaled up to 528 in the first half of the year, up 18 percent from the previous year.

Where has gone the 4th Amendment protection? Where has gone the right of privacy which enshrined in the Constitution? Apart from the legitimacy of wiretapping, and the fact that Spitzer was a public figure who committed the crime, isn’t it worth thinking that Spitzer deserves a minimum expectation of his “private” life? (Let’s assume that he only bought porn magazines, and the authority found out the fact through wiretapping or monitoring, thereby he ruined his career and lost his family. The phenomenon that people are monitored by the government authority and do not have the least private lives at all reminds me of what George Orwell depicted in his novel “1984”. ) In Katz v. United States, the Supreme Court first held that government wiretaps constituted a “seizure” under the Fourth Amendment, yet expressly excluded “national security” wiretaps from its holding. The Court emphasized both subjective and objective “reasonable expectation of privacy.” A reasonable expectation of the privacy from intrusion and surveillance by government is essential to the exercise of those kinds of rights- freedom of speech, assembly, and religion. Of course, this analysis based on the “expectation of privacy” test for Fourth Amendment protection could makes little sense in many situations in which citizen are living their lives in this electronic communication society. For example, if we communicate by e-mails as opposed to phone, it does not mean that we have lesser expectation of privacy only because e-mail transmission travels through ISP over which we have no control.

The past decades has seen the enormous changes in the field of electronic communication. The internet has played the most important part in that change and the technology also has opened new scope of snooping. The development of new means of communication, combined by the improvements in surveillance technology, has undermine the reasonableness of our expectation of privacy. However, individuals using the Internet as a mode of communication have “reasonable expectations of privacy”, just like anybody utilizing other mode of communication is entitled to a assumption of confidentiality, and the reasonable expectations of the individuals using internet must be respected.

The state authority is easily led into temptation of maintaining its power through monitoring or surveillance, and it can easily erode our free communication with one another, increasing the need to safeguard constitutional freedom from encroachment by government in the name of national security or the prevention of crime. This is especially true in light of the fact that advances in technology and science enable government authority to secretly invade a citizen's privacy to the extent it desires. When President Bush authorized a program of electronic surveillance of Americans saying that it was necessary to “protect ourselves” from acts of terrorism, it goes without saying that it surely will threaten the private area of our lives. The age of the Internet has transformed our social conditions respecting the freedom of speech and privacy, as well as our public needs respecting national security. The most important thing is balancing the needs of national security with the freedom of speech and privacy secured by 4th Amendment protection.

Therefore, even if public investigators’ eavesdropping is sometimes inevitable for the sake of fulfilling their duties and for national security, that should really be the last resort because most citizens will feel uneasy before the news that personal messages or communications are being intercepted by public investigators, which essentially means that anybody can be under government surveillance anytime. Considering the abovementioned, public investigators should act with utmost cautions in performing their duties that require wiretapping. If adverse social and economic effects caused by rising public uneasiness about the possibility of government’s interference in personal privacy outweigh the advantages from succeeding in investigating a criminal case through wiretapping, the wiretapping will be only for the convenience of investigators and nothing but an indiscriminating method, thus it should be banned.

-- TaehyoungKwon - 23 Mar 2008

  • The problem with taking this position on the basis of the Spitzer case is that the Governor, a public official, was subjected to surveillance under court order, namely properly-issued warrants, upon probable cause shown, in an investigation undertaken by prosecutors who had every reason to believe they were investigating bribery or other official corruption, which is an appropriate occasion for the use of the tools they took in hand. Even the original warrantless financial surveillance to which Spitzer was subjected, and which was the only part of the surveillance not classically permitted under the fourth amendment, was specially applied to him because he was a high public official, and of the rules subjecting him to that surveillance he had actual knowledge. To treat him as an example of the unfairness and constitutional invalidity of current investigative practices is really quite difficult in view of the facts.

  • But without the Spitzer example, the essay is not fresh in any way--it merely repeats, with one interleaved statistic on Korean telephone interceptions, the argument I made in class. I agree as a political matter with everything you've said, but I think you would have had a stronger essay if you had used other illustrations and sought to go beyond our class conversation in your chosen direction.


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r16 - 30 Apr 2017 - 22:11:13 - EbenMoglen
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