Re-Conceptualizing Privacy Law in the Age of Drones, Twitter, & Terrorism: The Rebirth of Privacy in the 21st Century

As the power and influence of drone technology continues to expand and ascend to new heights, far-reaching decisions will have to be made by legal experts and policymakers to determine nothing less than the fate and destiny of our American way of life. With our most cherished values and the very character of our nation hanging in the balance, the time has come to act firmly and decisively to revolutionize our laws and renew the spirit of America as a nation deeply and profoundly committed to protecting the principles of privacy embodied in our Fourth Amendment.

In securing these ends, I believe the Supreme Court should not merely tinker within existing bounds of the antediluvian Katz privacy test, but should instead revolutionize the framework from the bottom-up with a fresh, new perspective, predicated upon the “uses” towards which the acquired information is to be employed, and a reasonableness analysis that recognizes the challenging new realities of the digital age. In essence, the court must recognize the indisputable fact that information does not and cannot exist in a vacuum. On the contrary, when gathered, organized and assembled it becomes more than the sum of its parts—in fact a kind of rich, mosaic narrative—depicting a unique human life and experience.

In a nutshell, here’s how the “mosaic” framework works: Traditionally activities like walking to the park, to the bar, to see one’s doctor or to go one’s place of worship have typically been considered “public” activities that do not implicate revealing aspects of one’s intimate life. Nevertheless, in modern times when these isolated comings and goings are collated I would argue they should no longer be subsumed within the traditional province of the public domain but instead be re-conceptualized to be protected within the broader panoply of 21st century privacy law. Accordingly, collating these precious datum of daily activity ought to be recognized for what it is—a violation of a right more fundamental than the individual travel patterns connote in mere isolation: the Brandeisian right to be “left alone.”

To be perfectly clear, I do not seek to diminish one iota the considerable burden placed upon government officials to thwart the increasing threat of terrorist activity both at home and abroad. No doubt, National Security concerns remain daunting and will require a modicum of deference, perhaps even a lesser standard than probable cause in certain circumstances. Yet the specter of a return to the arbitrary and unfettered discretion of “general warrants” originally rejected by the Founding Fathers in colonial times appears all too palpable and probabilistic a threat at this time given the current capabilities of drone technology. Accordingly, law enforcement officials and policymakers must place special priority upon minimization and retention protocols so that private, sensitive information cannot easily be manipulated, misused, abused or misappropriated by unauthorized actors in violation of the rigorous “reasonableness” inquiry demanded by the text of our Fourth Amendment.

As future developments may require reevaluation of the precise contours of this balancing calculus, courts should flexibly apply the standards of reasonableness to accommodate the exigencies of circumstance rather than expect the certainty of exactitude under conditions of considerable uncertainty. In any event, one thing is certain, we can no longer continue to pour new wine into old wineskins, expecting anything less than both our privacy and national security to be utterly compromised. The answer in that regard is now clear—new conceptual wineskins for privacy are needed.

That is to say, at a minimum, we must recognize that drones though powerful and increasingly intelligent, are nothing more than instruments—neither good nor evil in and of themselves. They can be as productive and beneficial or as harmful and destructive as we—the agents who wield their awesome power—permit or direct them to be.

On the one hand, if drones’ technological power continues to expand, unrestrained by legal and social norms the consequences for our nation and our way of life, could be disastrous. On the other hand, if sound and sensible regulatory and jurisprudential changes are effectively implemented, I believe drones could be a major force for good—spurring innovation and prosperity as well supplementing our current national security apparatus as a welcomed bulwark against emerging biological weapons and terroristic threats at home and abroad making our land more safe and free.

Ultimately, the haphazard, piecemeal approach currently governing the regulation of drones is woefully inadequate to meet the task before us. Though the law is ill-equipped at the moment, with strong leadership and a sound strategy we can face these challenges with success—without the high risk attendant to either hastily responding to the next great national emergency, or (even worse) purposively waiting for such an emergency to compel us to act. Instead, we can and must address the future use of drones proactively by grappling with this coming storm head-on in the present—recognizing its significance as the preeminent national security issue of our time.

In conclusion, there are great risks and great rewards in exploring the myriad of applications of drone technology to our modern society. Caution and care ought to be our guiding lights, to be sure. But these prudential constraints should not be blind us to our history and our heritage as Americans. Timidity and fearfulness have never suited the blazing spirit of American exploration. From the wild trails of Lewis and Clark’s Great Expedition, to the sandy beaches of the Wright Brothers’ first flight, to the innovative assembly lines of Ford’s model T, to Armstrong’s triumphant march upon the moon—Americans have always been pioneers blazing new trails and exploring new frontiers. Drones are the next frontier; the only question that remains is how will we respond to the challenge?

Andrew K. Gershenfeld is a 2L at Duke Law School.

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