Privacy is the Problem

Ku, Raymond Shih Ray. “Privacy is the Problem.” Widener Law Journal 19, no. 3(2010): 873-891.

This article discusses how the government and the Supreme Court of the Unites States loosely interpret privacy through the Constitution, specifically the Fourth Amendment of the Constitution. The article takes the perspective that “privacy is the problem” – as illustrated in ways that the United States government attempts to convince the American public how necessary various types of surveillance are to protect our national security, enabling them to position privacy concerns as less salient issues.

The author, Ku, starts the article by citing two recent and relevant examples of the government infringing on individual’s privacy: a school recording student’s behavior through their laptop cameras, even at home in their own bedrooms; increasing government surveillance of telephone and electronic communications. Ku emphasizes that the government is increasing levels of surveillance on Americans in every manner under the guise of protecting national security; to make this possible, the Supreme Court hides behind various interpretations of the Fourth Amendment of the Constitution.

The Supreme Court uses the Constitution to limit privacy of individuals by loosely and semantically defining it from the perspective of how the framers of the constitution originally defined it; furthermore, they use the original language to differentiate invasions of privacy using new technology advances in contrast to the original definition, which involved invasions of privacy relative to that time period (such as rummaging through drawers, trespassing on
property, and the like). This allows the court to determine that invasions of privacy made possible by newer technological advancements do not fall within the realm of the Constitution, effectively allowing these types of privacy invasions to continue, unchecked, and deteriorate citizens’ rights of privacy.

Ku describes this in the following quote from the article:

“Ironically, privacy is also the problem for those interested in protecting privacy. Rather than treating privacy as an underlying interest protected by the Fourth Amendment, the Supreme Court of the United States currently uses it as a limiting principle, narrowing the scope and circumstances in which the Amendment applies. For most of the twentieth century, the right of privacy protected by the Amendment was only implicated when the search conducted by the government invaded privacy in a manner equivalent to the types of searches that troubled the Framers of the Constitution." (Ku 2010)

Ku goes on in the article to summarize various cases dating back to the eighteenth and nineteenth centuries that illustrate the true intent of the Fourth Amendment, which Ku argues is to limit governmental power and authority. The cases are mainly centered around government conducted searches of citizens. He further provides evidence that the government, through rhetoric and semantic language, has made itself the main arbiter and decision maker of what is
appropriate regarding its’ own actions related to the privacy of American citizens.

Ku concludes by stating, “the only legitimate authority for determining the reasonableness of any exercise of governmental power is the people themselves through the Constitution or through their legislative representatives by statute” (Ku 2010). He affirms that the practices mentioned earlier in the article, such as the case of the school spying on students via their laptop webcams is completely contrary to the principles guiding the Fourth Amendment, revealing
his irony intended in the statement, “privacy is the problem”.

This article was an excellent analysis, using legal cases, statutes, and the most sacred of principles governing our country – the Constitution, describing how government has increasingly overstepped its’ boundaries relative to privacy rights of American citizens by interpreting the principles guiding the Fourth Amendment of the Constitution to serve its’ own ends (mainly to increase it’s power). Ku uses historical documents and legal decisions to offer
additional proof to support his argument.

This source is different than the other sources I used because it is not a typical research report, broken up into sections described methodology and other research terminology employed within it. Ku, however, did apply valid research; using textual analysis, he looked at a chronology of cases in history related to the Fourth Amendment of the constitution as proof of the actual intent of the Fourth Amendment in contrast to how those cases and the Fourth Amendment are actually being interpreted by the Supreme Court today.

Although this article did not discuss the internet and the World Wide Web explicitly, the subject matter relates to the overall topic of privacy concerns of individuals relative to my research topic. It specifically mentions increasing government surveillance of electronic communications of individuals, which provides additional evidence that individuals’ right to privacy on-line is decreasing without their knowledge of it.