Stanford Law Review Online: The Dead Past

Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.

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4 Responses

  1. S Halayka says:

    Brilliant article, and I do agree. Now, if we could get actual enforcement of laws that forbid people — who clearly have no empirical backing — from including hearsay and false statements in affidavits, we may have a consistent reality.

    Unfortunately, until the professionals step up, I highly doubt that the remainder will follow.

  2. Orin Kerr says:

    Kozinski’s Keynote seems to be based on a questionable premise: That the fact that some people voluntarily give up their privacy somehow lessens or eliminates Fourth Amendment rights of everyone else. As far as I can tell, Kozinski gets this from he assumption that it is inherent in the reasonable expectation of privacy test from Katz. Specifically, he seems to be assuming from the words of the test that it must be based on societal practices, and therefore reflects societal practices.

    But my sense is that if you really get into the cases interpreting the Katz test, it turns out that this is generally not true. The Court’s cases on the reasonable expectation of privacy test sometimes do reflect social realities, to be sure. But more often, they tend to reflect more lasting principles and distinctions like inside surveillance versus outside surveillance, or the need to protect homes and cars and packages and persons. Those latter principles seem to be much less sensitive to the kinds of changing social practices Kozinski is worried about. To the extent that’s right, that seems to undercut Kozinski’s concerns.

  3. Eric Adler says:

    But our “legitimate expectations” shouldn’t be skewed by sampling bias:

    its much easier to count people publicly yakking on cell phones than to count private conversations. And for every bawdy blogger, there may be a thousand politely private affairs.

  4. Brian B says:

    The opinion ignores the fact that our Constitutional Republic was established to protect the rights of individuals. If person A chooses to broadcast their life details person B is not obligated to sacrifice their privacy.

    Further, anonymity is a form of privacy. Speaking in public when you have a reasonable expectation of not being personally identified by those within earshot is not a waiver of privacy.

    Finally using the logic employed and applying it to national security we could conclude as follows:

    a. the US government has failed to secure it’s territorial borders thereby exposing citizens to foreign belligerence.

    b. the US government has allowed foreign governments to hack into defense department information systems and steal design schematics for advanced weapons systems thereby undermining our militarys ability to deter aggression

    c. the US government has ceded its dominion of national security and has no authority to prosecute Bradley Manning as a national security threat.