BUNDLES OF STICKS

We end our short series of posts motivated in general by the U.S Supreme Court opening its new term by addressing what will possibly be the most significant, even perilous topic the Court might consider for years to come.

Every first-year law student is told how property rights are like a bundle of sticks, with each stick representing a specific right, all packed together into that concept of “property.”  For example, real property gives you the right to decide who may come on your property and who may not, or for what purpose, all the way down to how to furnish it, and so on and so forth.

So it is for the Court’s most difficult topic: privacy.  In the age of Facebook and other social media on one hand, but also the age of GPS, close-circuit television, and the NSA’s ability to intercept calls on the other, privacy is emerging as a similar combination of rights, its own bundle of sticks, tied together by a rather amorphous concept of “privacy” – a concept that a changing society, let alone the Courts, has yet to define.

That so many put a lot of information out there on social media and other outlets is a given.  But if privacy is akin to property, that means we also should have a right to control how much we divulge and to whom, among other things.  The extent of such a right, from zero to infinity, is yet to be delineated.

Matters are complicated by the fact that the Court’s jurisprudence under the Fourth Amendment, which limits the Government’s right to snoop and is the most likely source of constitutional privacy, is ill-fitted for the challenges created by new technologies.  The Court has struggled to tackle these new challenges.  A guiding principle of “reasonableness,” once fairly workable, has limited value in a fast-changing world, both in terms of technology and the culture shifting around it.  What is reasonable to the average person means little when there are no “average people,” and views on what is or should be private are as varied as the people holding those views.

Worse, many old doctrines have been overcome by events but are still on the books, at least on paper.  The “third-party” doctrine, for instance, can be summarized as “show one, show all.”  If you share information with one person, it is no longer private.  But that flies in the face of expectations that privacy settings can be set to allow some people but not others to share in our information.  And the doctrine goes further.  It could be said that one “shares” information in an email when it transits through Google’s or Yahoo’s servers.  But surely no-one who sends an email expects the governments to have a right to it because we used a third party’s server.

This is important for businesses too.  Most businesses have, and some outright depend on, an on-line presence.  How much is deemed divulged as a result? How much is fair game? Can the government make an end run around trade secrets? A business may share a secret formula with an affiliate or partner but mean it to remain strictly between the two of them, much like two lovers sharing racy pictures only with each other.  How much have they allowed the government to see by sending it through third-party servers?  Does the government heed privacy settings?  How the Court will unscramble the eggs cooked in a constitutional omelet over two centuries ago will be a fascinating – and for some rather scary – topic to follow.

As we started with a few posts ago, all Supreme Court cases start with one lawsuit.  Attorneys and their clients will by necessity be at the forefront of the movements that will define privacy for generations to come.