A Reasonable Expectation of Privacy
If, without breaking any property laws, one person is able to easily observe another, the latter has no right to claim an expectation of privacy. When an individual can be seen by anyone, they should assume that they could be seen by everyone. A reasonable expectation of privacy can be assumed only when a physical transgression is required for information to be obtained. If someone must trespass or otherwise violate property rights in order to conduct surveillance, then a general expectation of privacy is reasonable. This is because, in the physical world, an underlying reason for privacy is a concern for bodily security. A stalker isn’t just a stalker, they are also a potential assailant or even murderer. It is a stalker’s inclination (if not actual ability) to penetrate spaces that we thought were ours alone that disturbs us. Privacy in the virtual realm lacks the same justification. Data collection on the Internet severs the connection between potential violence and the acquisition of information. By its nature, virtual surveillance is less physically invasive and thus warrants a more limited expectation of privacy.
Leaving the personal domain of the home has always carried with it the presumption that an individual could be seen by the public. Historically, this may have meant that a handful of neighbors or acquaintances might be aware of one’s movements. Today, it means that one might be under constant CCTV surveillance. Even though outcomes are different, privacy rights are no more infringed upon today than they were previously. In any public space, where one can be easily observed the reasonable expectation of privacy evaporates. Any non-invasive (purely sensory) observation that is conducted in public cannot constitute the violation of the surveilled individual’s privacy. No one has a right to monopolize their own image, or information about themselves that has been acquired in a non-invasive manner.
However, surveillance in the real world often requires the use of more invasive measures because the ability to physically intrude on one’s privacy necessitates an uncomfortable degree of geographic proximity. Suppose someone discovers themselves in the background of a photo taken at Grand Central Station. This picture was taken without their consent or knowledge, yet they likely wouldn’t feel as though their privacy had been violated. Many photographs are taken everyday in which strangers are unwitting subjects. Yet if they were to stumble upon another picture of themselves, taken as they slept in their bed, the reaction would likely be one of immense violation, if not outright fear. This photograph, unlike the other, implies physical vulnerability — the photographer was close enough that they either were trespassing or could have, had they chosen to. Invasions of privacy in the physical world carry with them the latent threat of physical violence. Thus a reasonable expectation of privacy exists in spaces where we are vulnerable or intimate and where access is restricted, such as the home or the bathroom.
Attempts to analogize the privacy protections that are warranted in the physical world to the digital realm necessarily lead to faulty conclusions. In the digital world, what constitutes a violation of privacy changes from physical intrusion and the specter of violence to the pure collection of information. Suppose a woman is browsing a website in the comfort of her own home. As the she uses the site, her behavior is tracked. Usage information, like the type of device she is using, the amount of time she spends on the site and her most frequently visited pages, is recorded in the background. If this type of information had been acquired by a person surreptitiously lurking behind her, having broken into her home and hidden in her closet, we could comfortably say the woman’s privacy had been invaded. However, as this data is collected digitally, the collection process is less invasive – no direct physical threat is posed to the subject of the surveillance.
Though she in her home, which in the case of physical surveillance would grant this woman a reasonable expectation of privacy, when she uses the Internet, her behavior can no longer be thought of as taking place within the privileged space of her domicile, but rather on the unrestricted web. Browsing the Internet should be understood as equivalent to strolling across the public square. Just as in the physical world, if an individual is in a public space, then passive observation is not an invasion of privacy, the same holds true on the Internet. It is the means of acquisition that constitutes the violation, not the information itself that is collected.
In the real world, difficulty of access is what underpins a reasonable expectation of privacy and the delineation between the public and private sphere is simply the threshold of one’s house. Digital surveillance affords no easy distinction, and because data collection on the Internet lacks the threat of violence, it is less invasive. We need to recalibrate our expectations and acknowledge that the Internet is public by default.