A Sci-Fi Future Awaits the Court
At John Roberts’ confirmation hearings last week, there weren’t enough discussions about science fiction. Technologies that are science fiction today will become constitutional questions before Roberts retires from the bench. The same goes for technologies that cannot even be conceived of now. And many of these questions involve privacy.
According to Roberts, there is a “right to privacy” in the Constitution. At least, that’s what he said during his Senate hearings last week. It’s a politically charged question, because the two decisions that established the right to contraceptives and abortion — Griswold v. Connecticut (1965) and Roe v. Wade (1973) — are based in part on a right to privacy. “Where do you stand on privacy?” can be code for “Where do you stand on abortion?”
But constitutional questions on privacy have far more extensive reach. Recent advances in technology have already had profound privacy implications, and there’s every reason to believe that this trend will continue into the foreseeable future. Roberts is 50 years old. If confirmed, he could be chief justice for the next 30 years. That’s a lot of future.
Privacy questions will arise from government actions in the “War on Terror”; they will arise from the actions of corporations and individuals. They will include questions of surveillance, profiling and search and seizure. And the decisions of the Supreme Court on these questions will have a profound effect on society.
Here are some examples. Advances in genetic mapping continue, and someday it will be easy, cheap and detailed — and will be able to be performed without the subject’s knowledge. What privacy protections do people have for their genetic map, given that they leave copies of their genome in every dead skin cell that they leave behind? What protections do people have against government actions based on this data? Against private actions?
Should a customer’s genetics be considered when granting a mortgage, or determining its interest rate?
Surveillance is another area where technological advances will raise new constitutional questions. I’ve written about wholesale surveillance, the ability of the government to collect data on everyone and then search that data looking for certain people. We’re already seeing this kind of surveillance by automatic license plate readers and aerial photographs.
In the future, this will become more personal. New technologies will be able to peer through walls, under clothing, beneath skin, perhaps even into the activity of the brain. Sen. Joseph Biden (D-Delaware) rhetorically asked Roberts: “Can microscopic tags be implanted in a person’s body to track his every movement…. Can brain scans be used to determine whether a person is inclined toward criminal or violent behavior?” What should be the limits on what the police can do without a warrant?
Quoted in a New York Times article (.pdf), privacy advocate Marc Rotenberg laid out this scenario: Sometime in the near future, a young man is walking around the Washington Monument for 30 minutes. Cameras capture his face, which yields an identity. That identity is queried in a series of commercial databases, producing his travel records, his magazine subscriptions and other personal details. This is all fed into a computerized scoring system, which singles him out as a potential terrorist threat. He is stopped by the police, who open his backpack and find a bag of marijuana. Is the opening of that backpack a legal search as defined by the Constitution?
That story illustrates a number of technologies that might become commonplace over the next several decades. Automatic face recognition will allow police, businesses and individuals to identify people without their knowledge or consent. Data-mining programs will sift through mountains of data, both real-time and historical, and select people for further investigation. And people might even be accused of conspiracy based on nothing more than a nebulous pattern of events.
Similarly, can corporations engage in the same sort of data mining, and use the results to deny someone a job, or health insurance, or a mortgage?
The Supreme Court will face questions like these in the years to come. Complicating matters, the right to privacy is not explicitly enumerated in the Constitution. Instead, Supreme Court decisions have held that the First, Third, Fourth, Ninth and 14th Amendments implicitly grant a right to privacy against government intrusion. But some legal scholars believe that the basis for privacy law is obsolete, and needs to be completely rethought.
Unfortunately, there’s not a whole lot out there by which to judge Roberts’ views. The Electronic Privacy Information Center, or EPIC, published a survey (.pdf) of Roberts’ scant writings on privacy, and found many causes for concern. (I am a member of EPIC’s advisory board, and a signatory to that letter.) In a 1981 memo, he referred to (.pdf) the “so-called ‘right to privacy.'” And others have analyzed his Senate hearing comments and concluded that his views haven’t changed much since then.
Between “natural” erosion through the advance of technology and government erosion in its fervor to pursue terrorists, we as a country are likely to face enormous challenges to personal privacy in the decades ahead. And the Supreme Court will increasingly have to rule on questions so far only discussed in science fiction books.