A few months ago in U.S. v. Jones, the Supreme Court found that the government’s warrantless attachment of a Global Positioning System (GPS) tracking device to a vehicle to monitor its movement constituted a Fourth Amendment violation. You can find the Court’s opinions in their entirety here. Or, for those of you looking for a quicker summary, I wrote about the case for Harvard Law School’s Journal of Law and Technology here.
In this post, I want to focus on one point Justice Alito made in his concurrence.
Justice Alito explained that while the Fourth Amendment protects our reasonable expectation of privacy, technological changes may fundamentally alter our privacy expectations in the future such that, one day, Fourth Amendment protection for GPS-like data may disappear.
At oral arguments, Justice Alito said:
“You know, I don’t know what society expects, and I think it’s changing. Technology is changing people’s expectations of privacy. Suppose we look forward ten years, and maybe ten years from now, 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then — what would the expectation of privacy be then?”
Justice Alito’s comments make the situation clear: the more we voluntarily share with each other, the less the Fourth Amendment will protect.
With that, the question becomes: will the generation that comes to age in the next ten years – a generation that may well let 500 “friends” monitor their location 24/7 – even care if the government tracks their every move? Would they find that sort of surveillance creepy? Un-American? Are they uncomfortable that a company like Target buys and aggregates large amounts of data about customers to figure out when they’re pregnant in order to clandestinely send them not-too-obviously-targeted-but-definitely-targeted coupons? In sum, what is it that makes some people cringe at the thought of constant surveillance while others barely care? And, whatever that “thing” is that encourages the cringing, is the youngest generation losing it?
One obvious answer is that first-hand experience with government surveillance is likely to leave a lasting (and negative) impression. In another GPS case, one judge noted that for “those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.”
Experience works for some, but what about the rest of us? What can make the risks feel real to the millions of kids who haven’t experienced a totalitarian regime? The very kids who, shaped by the technologies they’ve been brought up with, are, in turn, shaping future constitutional jurisprudence.
When I was a kid, I read my fair share of science fiction and fantasy. I read one novel about the government putting nanotech tracers in vaccines and categorically refused to get vaccinated until going to college. I watched one too many episodes of The X-Files and, convinced the government may be monitoring what books people checked out from the library, made sure, at the ripe old age of 8, that I put all my books on my mom’s card. I saw The Lives of Others and felt the privacy invasions at my core. While a bit tin-foil-like at times, I also wanted to be space traveler after watching Star Trek, and understand computer programming after The Matrix. I watched The Wire and really wanted the police to make their case – and if that meant GPS tracking, so be it. Point being: these different types of stories made be both incredibly excited about the potential of technology while also helping me be cognizant of potential dangers; the stories helped me understand the complexities in a way I might not otherwise have.
Will books and TV shows be able to do the same for the next generation? By growing up before the likes of Twitter and Facebook and Google, before Amazon knew more about what I thought about than anyone but my boyfriend, speculative fiction had a head start – the fiction got me to think about what could happen long before it was actually happening in real life. Today’s teens send an average of over 3300 text messages a month. They’re used to online companies constantly serving them ads. They won’t remember a time when cameras at intersections were hotly contested and just plain creepy. Given all that, the power of fiction might change.
The status quo is techno-entrenchment. Researchers know that we associate what is with what ought to be. Does fiction have the power to overcome that? Do we need it to?