An immigration law colleague asked me to comment on his paper about privacy rights in the immigration context. As I read his paper, in which he argued that the traditional "border" for immigration enforcement purposes has shifted, several thoughts came to mind about two seismic shifts in American political and legal culture that conspire to increase government surveillance power and decrease individual privacy rights.
First, certainly the advancement of technology such as GPS, digital tracking etc. makes surveillance possible, easier, and more invasive. But the spread of surveillance techniques has been also due to public acquiesce to it or at the very least, a lack of resistance. The rise of technological innovation paralleled the largest expansion of government power since FDR and the New Deal. The 9/11 attacks precipitated the second largest expansion of national (and really specifically Executive power) since the 1930s. Even the federal courts have been diffident and complicit in this Executive power grab. As the Executive branch repeatedly throws down the national security trump card, the federal courts seem to weigh in only when there is a particularly egregious due process violation. The public also seems willing to endure rollback of individual rights and privacy “to make us all safer.”
Second, as Executive power has expanded, there is also a generational shift underway on a growing tolerance of
invasions of privacy because of the rise of social media. The generation of students I teach now (undergraduates born in the early 1990s) are the
Facebook/Twitter generation in which many previously private thought is now
shared to the public. It is
actually tricky to teach privacy to my undergrads because they don’t understand
what all the fuss is about. Their
thinking is, “I have nothing to hide.
I’m not doing anything bad, the government can watch me all they
want.” The mentality about privacy
these days among the younger generation is very nonchalant; their threshold for
surveillance, I would argue, is very high because of the ubiquitousness of what they view as benign social
media in their lives.
I actually have to push them and ask why they have drapes or curtains in their homes and why they don’t leave the doors wide open when they use the restroom, or allow an installation of a webcam in their bedroom, if indeed they have “nothing to hide.” Only then do they realize privacy is also about, “I really have nothing to hide, but it’s also none of your business” and that they wouldn’t want Peeping Toms watching them.
Given these shifts in legal and political culture, how do those who still value privacy and want to reign in state power accomplish their goals? Is law and the Fourth Amendment on unreasonable search and seizure even a sufficient tool for checking government surveillance in the face of these social forces? I don't have a good answer for either question.