The Brownie Camera, Texting, and Edward Snowden
In 2010 the U.S. Supreme Court issued a ruling in the case of City of Ontario v. Quon on the government’s right to private messages sent from a police officer’s text-message pager. When privacy experts convened April 6 at Colby to discuss “Techno-Snooping: Privacy, Technology, and the Evolving Rule of Law,” one panelist pointed out the irony that it took 20 years for the highest court to rule, and that by then the technology—an alphanumeric pager—was long since obsolete.
J. Trevor Hughes, president and CEO of the International Association of Privacy Professionals and a law professor at the University of Maine, cited the pager case as he discussed the evolution of technology. He began with Justice Louis Brandeis writing in 1891 about the threat to privacy posed by the Kodak Brownie camera. America’s policymakers and courts always have struggled to keep up with emerging technology, he said. “Today we are at an inflection point where technology is challenging us once again. In fact technology is not just challenging us, it’s really overwhelming us.”
The panel preceded Colby’s 2014 Brody Award ceremony, where Colby recognized the Honorable D. Brock Hornby, a federal judge in the U.S. District Court of Maine, as the eighth recipient of the biennial Morton A. Brody Distinguished Judicial Service Award. Goldfarb Center Director Dan Shea described the four-person panel as “some of the best in the nation” when it comes to the intersection of privacy and American law.
Moderator William P. Marshall, the William Rand Kenan Jr. Distinguished Professor of Law at the University of North Carolina, started the discussion asking, “Why does the government decide to invade privacy?” He proceeded to offer three reasons: actual threats to security, the tendency of U.S. presidents to overreach to prevent attacks (the “not on my watch” syndrome), and the public’s proclivity for finding someone to blame after any breach of security.
The Honorable Leonie M. Brinkema, a U.S. Federal Court judge in Virginia who won the Brody Award in 2008, followed Hughes up with a review of court decisions where technology and privacy intersect. The word “privacy,” she noted, does not appear in the Bill of Rights. “The expectation of privacy is a moving target,” she concluded. “This is a really complicated area where judges are just part of the solution and, we hope, not part of the problem.”
Ginger McCall, director of the Electronic Privacy Information Center Open Government Project, called for legislation to limit what the government can see and what the government and third parties such as Google and Facebook can collect. She advocated more government transparency: “We cannot have an informed discussion about it if the public doesn’t know the technology exists,” she said.
Asked about Edward Snowden and his revelations about NSA data collection, McCall said she couldn’t speak about Snowden’s motivations, but, she said, “He was a necessary part of the ecosystem in order for us to have this debate.”
After receiving the award and an honorary doctor of laws degree from President William D. Adams, Judge Hornby said, “This is the greatest compliment I can imagine, and it’s also a daunting standard for me to live up to for the rest of my career.”
Hornby, who was a colleague of the late Judge Brody, drew on 38 years as a judge to talk about five significant shifts he’s seen in his time on the bench: a precipitous decline in the number of cases that actually go to trial, a big decline in news media coverage of trials in Maine, the effects of budget pressures and new technologies in the courtroom, changes in our understanding of cognitive psychology (e.g. the unreliability of eyewitness testimony), and changes in sentencing guidelines over the last several decades.
Asked about the impact of television court dramas on perceptions of the justice system, Hornby said he typically meets with jurors after trials. Almost all of them say, “‘This is not at all what we expected. This is not at all like on television. Our system works. I’m so glad I got to be a juror,’” he said.
Full audio of the Brody panel discussion is online.