Reasonable Expectations of Privacy in the Digital Age

In this digital age of smart phones, global positioning systems, cloud computing, and social networking, determining what constitutes private information and what lengths our legal system will go to protect it is increasingly challenging. The reality is that our legal framework lags behind our rapidly changing, technology-driven world. And it is unclear whether and how our legislatures and courts will tackle the "vexing problems"1 caused by the increasingly complex intersection of privacy and technology.

Despite the lack of clear guidance, each day businesses confront difficult questions on what constitutes private information and to what extent the law protects it. This means that we must not only understand the current framework, but also anticipate the next, new privacy issue. The following discussion focuses on three emerging topics in this area—(1) tracking one's public movements via global positioning systems, (2) restrictions on accessing data posted on social networking websites, and (3) employees' unauthorized computer activity during work hours. In each instance, the only clear conclusions are that the law struggles to keep up with technology and that until the courts or legislatures are ready and willing to tackle these issues, there is unlikely to be meaningful guidance on how to handle these situations. In other words, the reality will continue to be rapidly evolving technology and a legal system that is not agile enough to quickly adapt.

Bread Crumbs from Space

As recently as January 2012, the Supreme Court admitted that it would rather not wrestle with difficult questions relating to privacy. In United States v. Jones, the Court addressed the scope of the Fourth Amendment's prohibition against unreasonable searches in relation to GPS surveillance.2 But instead of deciding whether tracking a vehicle's every move for four weeks violated one's reasonable expectation of privacy, the majority reverted to 18th Century trespass law. Although this kind of physical intrusion is precisely the kind of conduct the Fourth Amendment sought to protect against at the time it was adopted in 1791, Justice Scalia acknowledged that physical contact is no longer necessary to find a Fourth Amendment violation. Indeed, many cases discussing search and seizure in the last fifty years have relied upon the "reasonable-expectation-of-privacy" test and have expressly recognized that a trespass is unnecessary to find a constitutional violation. But by narrowing the analysis to a question of trespass, Justice Scalia avoided what he deemed to be "thorny problems" of whether or not long-term electronic surveillance without an accompanying physical intrusion is an unconstitutional invasion of privacy. Thus, this opinion rested on the narrowest possible grounds, raising more questions than it provides answers. For today, the Supreme Court appears content to let these questions lie, perhaps hoping that time and technology will provide more durable answers to navigating this thorny thicket.

In the private sector, the few courts that have opined on an employee's privacy right when it comes to the tracking of employer-owned vehicles have found unanimously that those rights are limited. For example, a federal court in Missouri found that because the vehicle's movement was public, the plaintiff had not established that there had been an intrusion upon his private affairs.3 This was true...