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- Privacy too vague to be legitimate
- Extensions – Privacy Rights Not Absolute
- The Fourth Amendment does not protect an absolute privacy right
- Fourth Amendment rights and privacy claims are not absolute
Privacy AnswersFrontline Privacy AnswersPrivacy can’t be restored – technological and corporate invasions happen all the time.Lewis 2014 James Andrew Lewis is a senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies. Previously, US Departments of State and Commerce as a Foreign Service officer and as a member of the Senior Executive Service. “Underestimating Risk in the Surveillance Debate” - Center For Strategic & International Studies - Strategic Technologies Program – December - http://csis.org/publication/underestimating-risk-surveillance-debate On average, there are 16 tracking programs on every website.4 This means that when you visit a website, it collects and reports back to 16 companies on what you’ve looked at and what you have done. These programs are invisible to the user. They collect IP address, operating system and browser data, the name of the visiting computer, what you looked at, and how long you stayed. This data can be made even more valuable when it is matched with other data collections. Everything a consumer does online is tracked and collected. There is a thriving and largely invisible market in aggregating data on individuals and then selling it for commercial purposes. Data brokers collect utility bills, addresses, education, arrest records (arrests, not just convictions). All of this data is recorded, stored, and made available for sale. Social networking sites sell user data in some anonymized form so that every tweet or social media entry can be used to calculate market trends and refine advertising strategies. What can be predicted from this social media data is amazing—unemployment trends, disease outbreaks, consumption patterns for different groups, consumer preferences, and political trends. It is often more accurate than polling because it reflects peoples’ actual behavior rather than the answer they think an interviewer wants to hear. Ironically, while the ability of U.S. agencies to use this commercial data is greatly restricted by law and policy, the same restrictions do not apply to foreign governments. The development of the Internet would have been very different and less dynamic if these business models had not been developed. They provide incentives and financial returns to develop or improve Internet services. There is an implicit bargain where you give up privacy in exchange for services, but in bargains between service providers and consumers, one side holds most of the cards and there is little transparency. But the data-driven models of the Internet mean that it is an illusion to think that there is privacy online or that NSA is the only entity harvesting personal data. Privacy is an unobtainable right – it always trades off with itself leading to circumvention of the plan’s effortsDavid Pozen 15, Associate Professor of Law at Columbia University, 6/28/15, 83 U. CHI. L. REV. __ (2015), “Privacy-Privacy Tradeoff,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2624281 Privacy clashes with important social values. We are told as much all the time.1 Commentators struggle to reconcile privacy and security,2 privacy and efficiency,3 privacy and technological innovation,4 and privacy and free speech, among other (real or imagined) antinomies. Privacy is constantly being juxtaposed with competing goods and interests, balanced against alternative needs and demands. Legal and policy debates about privacy revolve around these tradeoffs. But privacy also clashes with itself. That is to say, in myriad social and regulatory contexts, enhancing or preserving privacy along a certain dimension may entail compromising privacy along another dimension. If they wish to be more analytically rigorous, theorists and decisionmakers must take such privacy-privacy tradeoffs into account. If they wish to advance the cause of privacy, civil libertarians must do the same. Privacy-privacy tradeoffs come in a variety of flavors. Sometimes they are unexpected and unwanted. When EU citizens began exercising their right to be forgotten last year and flooded Google with “delete me” requests, the deleted links quickly reappeared—in more concentrated form—on a website devoted to documenting Internet censorship.7 Other times, privacy-privacy tradeoffs are consciously cultivated and promoted. The Transportation Security Administration’s PreCheck program invites travelers to “volunteer personal information in advance” if they wish “to leave on their shoes, belts and light outerwear and keep their laptops in their bags.” 8 Enhanced governmental access to your data can be traded for reduced access to your body and belongings. In many cases, privacy-privacy tradeoffs simply follow from scarce resources and opportunity costs. A tenant on a fixed budget who spends money soundproofing her walls will have less to spend on mending her window curtains or protecting her online identity. Alternatively, these tradeoffs may be caused by behavioral responses and dynamic feedback effects. Increasing airline-passenger privacy levels from X at Time 1 to a multiple of X at Time 2 may increase the odds of a terrorist attack, with the consequence that passengers’ privacy levels will be reduced to a fraction of X at Time 3. In still other cases, risk is redistributed across different aspects or bearers of privacy. By establishing a forensic DNA database, law enforcement officials may impair the privacy of everyone whose DNA is included but protect the privacy of a smaller group who will not be needlessly investigated for the crimes of others. By stripping its analysts of “any privacy or anonymity when they look at [collected] data,”9 an intelligence agency may deter them from exceeding their investigative mandates and thereby secure a measure of privacy for the rest of society—or at least for the analysts’ love interests. 10 Privacy too vague to be legitimateChris DL Hunt 11, PhD Candidate in law and WM Tapp Scholar, Gonville & Caius College, University of Cambridge, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort”, http://queensu.ca/lawjournal/issues/pastissues/Volume37a/5-Hunt.pdf) The “right to be let alone” occupies a hallowed place in privacy discourse. Although the phrase was coined by Judge Cooley42—who used it not to justify a right to privacy, but rather to explain why tort law regards trespass to the person as wrongful—it is now generally attributed to Warren and Brandeis, who invoked it throughout their seminal 1890 article.43 The latter authors analyzed numerous cases of trespass, defamation, confidence, and especially common law copyright, and identified a latent principle of privacy—operating unarticulated— which they argued should thenceforth be protected independently, as a distinct tort.44 This principle of privacy, expressed as a “right to be let alone”, is anchored in the more fundamental interest of an “inviolate personality”.4 The Warren and Brandeis formulation has come under much academic criticism. The first problem is its vagueness.46 Because neither the “right to be let alone” nor the concept of “inviolate personality” is adequately defined, 47 the article gives no practical or conceptual guidance on the scope of the right.48 A related criticism is that the phrase “right to be let alone” itself appears to be less a definition of privacy than simply a description of one example of it. Extensions – Privacy Rights Not AbsoluteThe right to privacy can’t be absoluteRobert Gerstein, Professor of Political Science, UCLA, PHILOSOPHICAL DIMENSIONS OF PRIVACY, Ferdinand Schoeman, ed., 1984, p.247-8. If privacy is a constitutional right it is immediately apparent that it cannot be an absolute right. Governments have always compelled people to disclose some sorts of information about themselves, and it is hard to see how they could get along effectively without the ability to do so. If the argument for privacy is made so broadly as to sweep away tax returns, accident reports, and the capacity to compel testimony on personal matters in civil cases, for example, it must surely be rejected. The right of privacy cannot be understood as embodying the rule that “privacy may never be violated. Privacy is not an absolute right – government must violate it to function Robert Gerstein, Professor of Political Science, UCLA, PHILOSOPHICAL DIMENSIONS OF PRIVACY, Ferdinand Schoeman, ed., 1984, p.247-8. If privacy is a constitutional right it is immediately apparent that it cannot be an absolute right. Governments have always compelled people to disclose some sorts of information about themselves, and it is hard to see how they could get along effectively without the ability to do so. If the argument for privacy is made so broadly as to sweep away tax returns, accident reports, and the capacity to compel testimony on personal matters in civil cases, for example, it must surely be rejected. The right of privacy cannot be understood as embodying the rule that “privacy may never be violated.” The Fourth Amendment does not protect an absolute privacy rightSilas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, pp. 61-2 Unfortunately, however, a rights-based approach does not mesh very well with the structure of the fourth amendment. The amendment, as commonly understood, does not provide an absolute shield against even the most extreme invasions of privacy and liberty. It does not establish a right to privacy that trumps competing policy concerns. Instead, the fourth amendment prohibits searches only when the likelihood that the invasion will be productive fails to justify the cost. In its most general form, this translates into an insistence that the search be reasonable. When the Court attempts to give the requirement a somewhat more determinate content, it insists that the search be supported by "probable cause" or "reasonable suspicion." In either case, however, the amendment requires no more than that the invasion be cost-justified in some sense. Fourth Amendment rights and privacy claims are not absoluteSilas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, p. 62 In this respect, the fourth amendment is crucially different from other constitutional guarantees, such as the freedom of speech, press, and religion, which may be more compatible with rights-based Kantian approaches. Of course, the rights protected by these provisions, as commonly understood, also may on occasion give way to especially compelling countervailing interests. But first amendment analysis does begin from the premise that there is a right to free speech, press, and religious worship, with a strong burden of proof on the party wishing to overcome the right. There is no comparable premise concerning a right to personal privacy built into the fourth amendment and no presumption against the validity of reasonable privacy invasions. 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