Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety
The Court’s Katz opinion notwithstanding, informational privacy is on life support, not only in everyday life but also in constitutional law. “You have zero privacy anyway,” Scott McNealy, CEO of Sun Microsystems, remarked in 1999, “get used to it.” McNealy overstates the case—but his exaggeration is well worth bearing in mind. In the years following McNealy’s comment, it was revealed that the federal government embarked on a program, code-named Operation Stellarwind, which monitored without warrant millions of messages sent overseas. Even after Congress placed limits on this, the federal government continued to monitor—in most cases, subject to statutory authorization—the phone numbers people dial and the email addresses to which they send messages. Late twentieth-century Supreme Court decisions permitted this (though no decision permitted Stellarwind’s practices). As far as constitutional protection for informational privacy is concerned, then, the central question is whether the Court will build on the foundation established in Katz v. United States to protect individuals from the sophisticated technology the government now employs to monitor behavior. The Court must do so while mindful of the genuine threat posed by terrorist organizations. Recently decided cases indicate that a majority of the Court is aware of the need to strike a balance between the public’s interest in national security and each individual’s interest in informational privacy. The chapter outlines a forbearance model of protection for informational privacy that will make it possible to strike this delicate balance.