Privacy is not just a fundamental right.  Fundamental rights in the United States are natural law derivatives anointed by the Supreme Court as deserving of the highest level of protection from government intrusion.  But the government isn’t the only one intruding here.  Businesses are tracking everything we do online.  Privacy rights do not extend to most of our online activities conducted through private business enterprises.

Despite arguments to the contrary, privacy is not even a natural law right.  In fact, until recently it wasn’t considered a desirable right.  It is not mentioned once in either the Declaration of Independence or the United States’ Constitution.  Society felt through most of history that knowing what your neighbor was up to was good for everyone.  Privacy is not common to all humans and it doesn’t come from nature but rather from societal mandates or positive law.  Accordingly, the definition of privacy or the “right to be let alone” must change with the technology of the age.  

The “right to be let alone” was a sufficient definition based on the technology of that long ago day.  There was no ability to “read our minds.”  But now vast amounts of combined data from thousands of websites are capable, utilizing artificial intelligence (“AI”), to literally read our minds.  AI knows what we want before we do in many cases.  With AI it is almost as if our computers are broadcasting our deepest thoughts and feelings.

Our thoughts have always been our own until now.  So privacy isn’t a mere fundamental right, it is much, much more.  Lack of privacy today means giving up our very right to think what we want.  It impacts the right against self-incrimination, search and seizure, freedom speech, the press, religion and so much more.  It stifles the desire to access information that society in general frowns upon.  

So how do we protect something so basic as freedom of thought?  Because that is the current definition of privacy at its highest level.  What was once science fiction is now very real.  AI can determine based on numerous factors what is likely to influence you, receive your support or disdain, and determine what you want to hear.  It can influence elections, global markets, and be directed at the destruction of an individual, group or ideology.  

Is it possible to protect our private thoughts and inclinations from AI and other technologies?  As with all solutions it will take time and patience; but the right to privacy must be advanced alongside technological innovations.  Protecting privacy will be the Digital Age’s contribution to the rights of humankind.

Published by Julie D. Blake

Julie D. Blake, Counsel Ms. Blake joined Pastore & Dailey LLC in 2013. Prior to 2013, Ms. Blake worked at national and regional law firms and even operated her own rural law office for five years. Her twenty years of experience in business and commercial litigation paired with a new focus on pragmatic cybersecurity and privacy law services, is a unique combination of skills. Ms. Blake earned a B.A. in history at the University of Virginia in Charlottesville, Virginia and a J.D. from Suffolk University Law School in Boston, where she was a McLaughlin Appellate Advocacy Competition winner. She expects an LLM in 2021 from Drexel University School of Law in Cybersecurity and Privacy Law.

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