Protect Your Privacy
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Protect Your Privacy

Friday, May 09, 2008By Richard Alexander

Congress must make Internet privacy a national priority.

The U.S. Supreme Court has done little to protecting individual privacy and since 1976 it routinely has sided with government over the rights of individuals.In 1976 The U.S. Supreme Court held in Miller v. United States that the right to privacy does not protect checks written by individuals on their individual checking accounts. In short, every time a check is written in the United States, there is no expectation of privacy in what many believe are their personal bank records.

The Miller decision was startling because the Supreme Court ignored a mew approach to privacy it had recognized in 1965 and the subsequent strong support the concept has received from distinguished jurists who have recognized that respect for individual privacy must keep pace with the perils of new technology.

The Fourth Amendment was intended to make sure that no one in government could search private homes on a whim.. The Founders outlawed all searches unless there was a specific court order identifying the persons and places to be searched.

Over the years Fourth Amendment court cases show law enforcement employing new technology to gather information without physically searching a particular place. Without a rule addressing how new technology should be treated, the resulting decisions developed along inconsistent lines.

In 1967 the Supreme Court solve the problem in Katz v. United States with a new rule addressing the right to privacy in a time of rapidly changing technology.

In Katz a telephone booth was bugged by attaching a device to its exterior without physically penetrating the enclosure. The Court held the Fourth Amendment protects people, not places, and the bugging, while not invading the physical space of the telephone booth, violated the privacy "upon which [the defendant] justifiably relied."

The Court rejected a traditional 18th century analysis protecting property rights from physical intrusion and adopted the justifiable expectation of privacy approach as the new standard to apply to searches by increasingly sophisticated technology.

Similarly in Griswold v. Connecticut (1965) the Supreme Court, in holding unconstitutional a statute prohibiting the dissemination of birth control information, based its reasoning upon the constitutional right of privacy emanating from the "penumbras" of the first, third, fourth, fifth, and ninth amendments.

In Miller, the Court reversed itself and ignored the expectations of privacy of bank customers in the handling of their personal accounts and held that cancelled checks are the business records of banks. They dont belong to the customers.

Since the Miller decision the Supreme Court consistently has endorsed an Orwellian approach where the constitutional privacy rights of individuals are subjugated to police supervision and government intrusion.

Despite claims by Supreme Court nominees to respect the prior decisions of the court, the Supreme Court substantially has ignored the "justifiable expectation of privacy" standard and has sided with government intrusion over individual rights.

The expectations of privacy rule protects the rights of citizens and directly addresses the intent of the framers, the impact of increasingly sophisticated technology used to spy on citizens and the reasonable expectation of privacy that people have in using email for their daily business and personal communications.

Congress should adopt the expectations of privacy standard for all government investigations and to preserve the privacy of Internet communications.

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