No Love For the 4th Amendment?

Who here wrote a thesis? That’s nice. A lot of hard work went into that thesis. And no one is ever going to care. I wrote a thesis—this is true, I don’t lie—“Literary Progeria in the Works of Flannery O’Connor and William Faulkner.” Let’s just say that during my discussions with Pauly Shore, it doesn’t come up much. For three years after graduation I wanted to show it to everyone, and so I kept my thesis in the glove compartment of my car, so that I could show it to a policeman in case I was pulled over.”  -Conan O’Brien, 2000 Harvard Class Day Speech

About fifteen years ago, I wrote my college thesis on the rise of digital rights management (then called trusted systems) and targeted digital advertising as technologies that collectively protect intellectual property and promote data gathering at the expense of privacy, whose economic value (and legal protection) is hard to pin down. In my opinion, these technological advances cast a new light on the relation between speech, privacy, and property in American political thought, and as such, I felt we could use them to think more deeply about what we really value as human beings. Unfortunately, all we’ve really learned is how to value human beings according to their data footprint. I even got to go along for the ride (see also, my work experience).

One of the things I want to do with this blog (while I fight against a lot of bird traffic through Vent No. 5) is revisit my thoughts from fifteen years ago and update them. Because the issues haven’t really changed, and the rise of “big data” and the advertising technology industry has been more pervasive than just managing access to digital media—now our communication is ad-supported too. In fact, if anything, media has been a victim of the ad tech industry (a subject for another time). The normative state of privacy, especially in private transactions governed by Google, Facebook, Amazon, et al., may be dead for now, as they love to tell us. But the societal desire for privacy is alive, and it can be characterized, at its heart, by the rights-based thinking and philosophy that underpins the US Constitution.

Why do we support the First Amendment with such gusto and we often turn a blind eye toward violations of the Fourth Amendment? Why do we think of the First Amendment as a firmly American value that we take with us into the private sphere (where the right has no bearing), and we ignore the values underlying the Fourth Amendment when we transact there? Why do we build technology that supports free speech (bringing wonderful gains the world over), and then we ignore the right to privacy in the technology we build? Perhaps there’s a like a step function in the bill of rights. 100% of Americans like free speech. 50% of people like guns. No one gives one whit about quartering soldiers (Raise your hand if you even know what the Third Amendment protected. Thought so.)  and so on down. In my next post on this subject, I’ll delve into the history of a right to privacy with a special emphasis on Warren & Brandeis.


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