Facebook, Privacy, and the Constitution

I have to admit I’ve never been a big fan of Facebook, primarily for issues of privacy. I’ve largely avoided it altogether since 2016, and I consider it useful for only a few things: as a place to digitally grieve with old friends (my sister passed away recently, and Facebook is one of the places I will visit to remember her) and perhaps as a place to promote this blog. But then I will likely leave it be for another year.

With all the false facts published on Facebook about health and nutrition (topics about which I care deeply), I consider it a public health nuisance. With all the divisive political misinformation published by Russian troll farms, it has further degraded respect in the US for opposition viewpoints. And given that some of my own high school friends transformed into political trolls during the 2016 Presidential campaign, I now cheerfully view Facebook as the social media version of a Zombie Apocalypse.

But most of all, I despise Facebook itself for pretending that we are its audience. Facebook offers a Devil’s bargain, where we sell our privacy for the ability to connect with long-lost friends and a dilute backwash of digital acquaintances. In truth, we are just a commodity being trafficked amongst marketers and political operatives.

So given the current debacle around private data from 50 million Facebook users that was sold to the Steve Bannon company Cambridge Analytics, I am glad that some lawmakers are calling for Zuckerberg to appear before Congress. This may be a Facebook first: bringing both Republicans and Democrats together on an issue.

I just hope we see some real leadership in this regard. And by leadership, I don’t mean spanking Zuckerberg or demanding apologies, because those would just result in passing headlines. The real question is not whether Facebook committed wrongdoing, but whether we will finally admit that it’s time to decide what privacy really means to America.

To that end, I decided to look into just what Rights of Privacy a US citizen has. First off, you may be surprised that the US doesn’t have an explicit Constitutional right to privacy at all. Here is a brief refresher of what the Constitution’s Bill of Rights affords:

• The Fourth Amendment protects us against unreasonable search and seizure: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” But that is really a civil protection directed toward the government (especially law enforcement), not Facebook marketers.
• The Fifth Amendment protects against self-incrimination, particularly information that may be legally incriminating. However, it doesn’t state that we are protected in our otherwise lawful private affairs. Again, nothing to prevent our Internet provider from tracking, cataloguing and marketing every Google search made from the supposed privacy of our homes. Even the embarrassing ones.
• The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, it officially recognizes that we absolutely do have other rights, even if the Constitution doesn’t explicitly discuss them.
• Generally the Ninth, along with the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”), means that while the States may legislate certain rights, there are certain rights that simply cannot be denied by the government because they are inalienable rights of the people.

One example of a commonly understood “inalienable right” is the right of marital privacy. This isn’t actually protected in the Constitution, and at the State level it can be subject to wide legal interpretation, as well as “evolving standards of decency” which affect how our laws and rights are interpreted over time.

Today, we stand on the nexus of both an evolving standard of decency (social norms) as well as a fundamental shift in how technology effects the very fabric and definition of our society. As we face these shifts, our right to privacy finds itself standing on shaky ground.

As long ago as December 15, 1890 the Harvard Law Review published an article by Samuel Warren and Louis Brandeis titled “The Right to Privacy” wherein Brandeis (the primary contributor) set forth some of our foundational principles in defining this right in a technological age (Brandeis later became a Supreme Court Justice).

Brandeis “defined protection of the private realm as the foundation of individual freedom in the modern age.  Given the increasing capacity of government, the press, and other agencies and institutions to invade previously inaccessible aspects of personal activity, they argued that the law must evolve in response to technological change.” (See The Right to Privacy)

In 1928, in the face of telephone wiretapping technology, the Supreme court heard the case of Olmstead v. United States where they upheld the government’s right to wiretap. As the dissenting voice, Brandeis here again championed the right to privacy, declaring the “right to be let alone” as “the most comprehensive of rights, and the right most valued by civilized men.” (Read that again, it’s good, the “right to be let alone.” Pertains of course not just to men, but this was a long time ago, before American teenagers made it their own rallying cry.)

Today, isn’t it time we take a stand on defining our right to privacy in the Digital Age? I would argue that it is time we consider this as a new Constitutional Amendment. To quote from George Washington’s 1789 inauguration speech, in speaking about the deliberations surrounding the Bill of Rights amendments to the Constitution:

For I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an United and effective Government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for the public harmony, will sufficiently influence your deliberations on the question how far the former can be more impregnably fortified, or the latter be safely and advantageously promoted.

In other words, the Founding Fathers knew we would have to adapt (amend) the Constitution based on these “future lessons of experience.” And most important, Washington offered the guidance that our rights must always be impregnably fortified. Not reduced or diluted.

India recently established the pre-eminent right to privacy: “A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar, ruled on August 24, 2017 that the Right to Privacy is a fundamental right for Indian citizens under the Constitution of India…. Thus no legislation passed by the government can unduly violate it.”

If the largest democracy in the world can finally recognize this right, isn’t it about time that we take it up as well? After all, aren’t we supposed to be leaders ourselves? Where indeed are our leaders?