Reexamining the right to privacy in light of ICT

The recent case of US v. Barrows, decided by the U.S. Court of Appeals on April 3, 2007, has similar factual circumstances to the case mentioned by Sir Alampay. However, in this case, the gadget searched was a personal computer.

In the case, City Treasurer Barrows brings his personal computer to City Hall,placed it in an area which was accessible to the public, and had it connected with the city’s network. Barrows did not have a password to prevent access by third persons and he left the computer running at all times. When there were glitches in the network, a policeman and computer salesman went to check the Treasurer’s PC without permission and found child pornography. A warrant was obtained thereafter.

The Court acknowledged that people have a reasonable expectation of privacy in their home computers. However, they went on to say that no such expectation exists if the person uses his personal computer in a public place. Barrows could not claim that the data in his PC should remain private because he placed the PC in a public place and failed to prevent other people from accessing his files.

In my opinion, this decision carves out a dangerous precedent. The right to privacy should not be dependent on a determination of the physical surroundings. The fact that the computer of Barrow’s was in a “public place” or did not have a password shouldn’t thereby transform his computer into something entirely devoid of any expectation of privacy. If such were the case, then any laptop left in SBC without a password would necessarily be fair game. It places the burden of protecting one’s right to privacy on the individual thus stretching the Constitutional guarantee of the right to privacy to the point where it begins to be useless.This shouldn’t be the case.

In portraying the right to privacy as a personal zone of seclusion, Justice Brandeis in Olmstead vs US stated:

" They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men... "
Thus, we should discontinue the notion as espoused by the Court in this case and dissociate expectations of privacy from place and zone altogether.