Judges have allowed privacy invasions in many public and private forums. Now it may be the judges' turn to lose some digital privacy.
Just look around. There are more police cameras at traffic lights, public parks and buildings. More private surveillance cameras in shopping malls, grocery stores and hotels. More companies that build and swap customers' digital profiles and that track Internet users' "clickstreams" as users visit Web sites and chat rooms.
And a new study from the Privacy Foundation found that 14 million workers--a full third of the on-line work force--"have their Internet or e-mail use under continuous surveillance" and that the main reason for this is that surveillance software is so cheap. Another study found that as many as 72% of employers sometimes read their employees' e-mail.
The U.S. Supreme Court has repeatedly said that we should expect less privacy in public places. This applies to the phone numbers we dial and the addresses we write on envelopes and the trash cans we set out.
And, believe it or not, the 4th Amendment's noble prohibition on unreasonable searches and seizures does not apply to private companies if there is no governmental conduct involved.
The founding fathers missed that one.
But the judges' main argument to permit the explosion in digital surveillance comes down to three words: Use equals consent.
Staying is playing. Don't drive or shop or visit Web sites if you don't want others to see what you do and to record it. And don't work at a company if you don't want to give up your digital privacy.
So even many longtime workers must now "consent" to their company's latest policy of electronic surveillance if they want to keep their jobs. The U.S. Supreme Court has not yet ruled on employee Internet surveillance, but it has upheld the dubious wiretap rule of the "unreliable ear": You assume the risk that everyone you speak to has consented to letting the government wire them to record what you say.
That lays a nice foundation for a surveillance state.
Supreme Court Chief Justice William H. Rehnquist will head the U.S. Judicial Conference, the policymaking body for federal judges and staff, when that panel of federal judges meets in Washington today to vote on a controversial proposal to monitor the e-mail and Internet access of the 30,000 employees of the federal judiciary (although growing criticism may lead to a vote postponement).
