I am greatly encouraged by the Supreme Court’s unanimous decision in U.S. v. Jones (PDF). In particular, these remarks by Justice Sotomayor seem to recognize that technology changes the very definition of privacy:
[P]hysical intrusion is now unnecessary to many forms of surveillance. … With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones.
[…]
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. … This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable” … and perhaps not.
Here’s the part that really resonates with me:
I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Meanwhile, I can count on the fingers of one hand the number of Congresspersons and Senators who understand these issues with even a fraction of Justice Sotomayor’s depth.
(h/t Forbes)
Ed Bott (@ wordpress.com) 
Ed, do you know what a complicated issues you’ve just stepped into? Most Americans probably believe in a right to privacy. However, most Americans are also unaware that “privacy” has become a fiercely-fought campaign in the culture wars.
Notice that Justice Sotomayor wrote alone, and that no other justice signed on to her opinion. The problem is not that Congress is clueless — or even misguided. The problem is that many of them actively oppose the right to privacy — for reasons that have very little to do with privacy itself.
You see, the problem is that the “right to privacy” has become a codeword in the culture wars. The right to privacy forms a key pillar of Roe v. Wade (establishing the right to an abortion) and Lawrence v. Texas (decriminalizing homosexual activities). It also creates problems for things like the PATRIOT Act.
Rick Santorum is well-known for explicitly rejecting the right to privacy. Newt Gingrich has also said similar things. At this moment, Newt Gingrich stands a real chance of being elected — which means that he stands a real chance of nominating Supreme Court Justices who also oppose the right to privacy.
I’m well aware of the dog whistle around that word. Sotomayor’s was a concurring opinion. I didn’t read any contradictions elsewhere.
And no, I don’t have such confidence in our legislators, most of whom wouldn’t know the difference between an URL and an earlybird special.
The way I see it, unless you make an effort to gain privacy then anything you do online (which is basically the same as doing something in public unless encrypted) then you should not expect privacy. Once you make an effort to obtain privacy then the 4h Amendment should apply in full. Seems trivial to me. Amazing that it is not.
Ed, SCOTUS cases are rarely what they appear to be on the surface. The decision in the case was unanimous. The support for expanding privacy rights, however, was only 5-4 — and Scalia’s majority opinion took pains to avoid expanding the right to privacy.
It looks like there was some sort of backroom deal, in which Sotomayor would join Scalia’s strict-constructionist opinion in return for Alito deserting the conservatives and letting his libertarian half speak up for privacy rights.
When you have a 5-4 Court, and when the next President of the United States might very well be Newt Gingrich — a man who has been staunch in his opposition to privacy rights …
We would actually be better off if Congress merely doesn’t know “the difference between a URL and an earlybird special.” Cluelessness implies that they might one day be persuaded to vote the right way.