Public Opinion, Privacy, and the Courts

Under Common Law, rules are formed by reference to previous cases and dominant cultural attitudes. Why do the “nothing to hide-ers” want you to have less privacy than the rules allow?

In the previous post, we inquired into the origin of a stubbornly common cultural assumption, the idea that “you don’t need privacy unless you have something to hide.” This formulation, which is often used to defend covert or intrusive government surveillance, also has the effect of limiting consumer access to privacy-enhancing technology.

The overarching question of this series of posts is, what could be the basis for this attitude, when in fact citizen privacy protection is embedded in both the Constitution and in modern-day judge-made law? Since the law can do no more than encode our shared cultural biases and beliefs, how does this conundrum come to pass?

How The Rules get made under Common Law

Before examining this disparity, let’s cover a little background about how the sausage gets made – that is, how shared cultural expectations get encoded into law. It’s important to understand how laws validate cultural norms, in the context of the Constitution, and how those norms get articulated in judicial decisions and in legislation and regulation.

The United States (like Great Britain, India, and Canada) is a common-law jurisdiction. This means that judges get to decide the outcome of disputes that aren’t clearly covered by existing regulations, and also get to call on the legality of the regulations themselves. To do so, they rely upon the reasoning of previous decisions, as applied to the facts at hand, to arrive at a just result.

When no such guidance exists, or when the circumstances are truly novel, the judge must reach into the quivering grab-bag of cultural norms and reason afresh, to arrive at a defensible and sustainable conclusion. The judges are assisted in this effort by the attorneys on both sides, who craft compelling arguments as to why their clients’ position most closely conforms to the standards of their community and historic norms. Attorneys often apply the “reasonable person” standard; it is the basic tactic used in civil cases to assign blame when someone’s behavior falls outside of what most people in the community would consider reasonable.

(Of course, the judges’ own prejudices and experiences, and occasionally inappropriate political or economic influences, sometimes drive an outcome that does not properly reflect current mores or even the agreed facts of the matter at hand. But that’s a post for another time.)

Culture & The Courts – running off the rails

As a rule, there ought to be a close correlation between shared cultural norms and positive law-making by judges; and by extension, a virtuous cycle among (majority) consumer expectations/legal validation/commercial expectation.

It’s certainly possible to argue the directionality of law and cultural sentiment. In some cases, like the great civil rights decisions of the 50’s and 60’s, the Court seemed to be running ahead of the cultural moment in some states, and we saw results like forced busing and classroom integration, and destructive unrest. At other times, such as the long-running campaign to extend voting rights to women, decisions by the Court had to be overruled by constitutional action (in this case, the 19th Amendment) in order to bring the prevailing rules in step with the times. And of course the Court can sometimes just hit very wide of the mark, as in its Citizens United decision allowing unlimited political spending by corporations, which was opposed by an overwhelming (and bipartisan) majority of Americans.

What about privacy?

But outlying decisions like these are anomalies. The Rules, especially on topics of great public concern, ought to reflect the predominant cultural stance, expressed in the narrowest possible manner – it’s infinitely easier to grant a little bitty exemption from a narrow rule than it is to later rein in a lot of behavior under an excessively lenient rule. But in the case of the basic constitutional privacy rules, we have an unusual situation: the limits on government behavior (restricting government intrusion into private places) are actually more favorable toward citizen privacy than the “nothing to hide” faction would allow.

So, what is The Reasonable Expectation about privacy anyway?

Glad you asked. In the next post, we’ll delve into the landmark case from the 1960’s that transformed the playing field for government intrusion into private life, by setting the “reasonable expectation of privacy” standard, and that (I argue) should set the absolute minimum consumer expectation for privacy in commercial transactions.