Whatever anyone may think of the rulings made by Supreme Court Chief Justice John G. Roberts Jr., the nation’s top jurist clearly understands the issues. Asked last fall about the biggest constitutional challenges the court faced, Roberts was categorical: The issue, he said, is privacy.
He’s right. The question of privacy has grown more wrinkles than a shar-pei since the advent of the Internet, social media, cellphones and other mobile technology. Our own devices leave an electronic trail of where we’ve been, what we’ve seen, who we’ve been with, even what we like and don’t like.
That information is priceless to advertisers, to whom we give it away, but also to the government and especially law enforcement, which can use it to pursue its interests, legitimate or otherwise.
Among the privacy questions that courts have considered:
• Can police attach a GPS device to the vehicle of someone they want to track without first obtaining a warrant? In a ruling early last year, the Supreme Court said no. To do so is a violation of the expectation of privacy and, thus, of the Fourth Amendment.
• Can police take DNA samples from those arrested, but not convicted, of serious crimes? The Supreme Court said yes, in a ruling this spring.
• Are personal emails protected by federal privacy laws, such as those that cover traditional mail? Different courts have reached different conclusions. In April, the Supreme Court refused to take up the case. So who knows?
• Can police search cellphone data of people they have arrested? Again, courts have issued different rulings. The Supreme Court has not considered the issue yet.
Other issues: Can employers demand to see the private Facebook accounts of job applicants? Can they discipline employees for what they say on social media?
Questions such as these have developed quickly over the past 10 to 20 years and there is no reason to think the pace of change will slow down, such is the rapidity with which technology continues to evolve. The courts can barely keep up, which helps explain Roberts’ view of the issue.
These are important, bedrock issues that will continue to work their way through the courts for decades to come. That is not simply an issue for judges, but for presidents, senators and, at root, voters. Americans necessarily consider many issues when they go to the polls, but privacy is surely one of them. Presidents nominate the federal judges who hear these cases and senators approve them. Voters select those public officials; their fingerprints are all over this matter.
Consider the Supreme Court. Ruth Bader Ginsburg is 80 years old and in questionable health. Two other justices, Antonin Scalia and Anthony Kennedy, are 77. Stephen Breyer is 74. Between now and the end of the next president’s first term in office, one or more vacancies are likely to open up.
Control of the Senate is up for grabs next year. That will influence the kind of judges who are nominated and who can be confirmed. And, of course, the beliefs of the next president will inform the nominations he – or she – makes.
Those races will be dominated by the economy, health care, national security and other issues. But privacy should rank prominently among them. Technology may be posing a threat to our notions of privacy, but we have tools to hold it at bay – if we elect leaders who understand the importance of that issue.