Omniveillance: Alito Recognizes Why The Google Generation Is Different

November 8th, 2011

From United States v. Jones:

JUSTICE ALITO: Well, that seems to get -to me to get to what’s really involved here, the issue of whether there is a technical trespass or not is potentially a ground for deciding this particular case, but it seems to me the heart of the problem that’s presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy — I would say most of the privacy — that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information. But with computers, it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public. If — if this case is decided on the ground that there was a technical trespass, I don’t have much doubt that in the near future it will be probable — I think it’s possible now in many instances — for law enforcement to monitor people’s movements on — on public streets without committing a technical trespass. So how do we deal with this? Do we just say, well, nothing is changed, so that all the information that people expose to the public — is, is fair game? There is no — there is no search or seizure when that is — when that is obtained, because there isn’t a reasonable expectation of privacy? But isn’t there a real change in — in this regard?


JUSTICE ALITO: You know, I don’t know what society expects and I think it’s changing. Technology is changing people’s expectations of privacy. Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then — what would the expectation of privacy be then?

I couldn’t have said it any better myself:

When these torts were developed, the level of invasion into an individual’s privacy was limited by photographers making a choice to photograph an individual at the opportunity cost of not photographing someone else. With new technology, the choice is no longer which individual to photograph, but which city to photograph in its entirety. Each individual could be not only indiscriminately photographed, but also persistently filmed, leading to a state of constant monitoring. This is an undesirable state, and will only get worse as new technology develops.

And relatedly:

Another key distinction between previous technologies and omniveillance is that images are now broadcasted throughout multiple electronic media without any concern for newsworthiness. The most insignificant, inconsequential, and ostensibly private facts can be instantly littered all over the information superhighway. Traditional media editors were limited by space as to how much information could be reproduced. Specifically, an editor would be constrained by the amount of space and time available, whether it was the number of minutes on the evening newscast, or the amount of columns in a newspaper. As a result, only a certain amount of information about people involved with certain events could possibly have been thrust into the spotlight. Traditionally, when courts deferred to an editor to help determine whether reproduction was appropriate,126 the judge could reasonably rely on the economics of the media as a check on what could be published and as a limitation on invasions of privacy.127 However, with omniveillance, no such editorial board exists. Rather, high-capacity hard drives and blazing-fast Internet servers128 break free content providers from the traditional chains of columns in a newspaper or seconds in a television spot. The essence of omniveillance— instantaneous worldwide distribution, indefinite retention, and ease of access—rewards content providers for posting the maximum amount of information possible, without any restrictions.

The SG used the term “universal surveillance.” Omniveillance is just such a better word:

MR. DREEBEN: Justice Kagan, I think the Court should decide that case when it comes to it. This was my fundamental point: this case does not involve universal surveillance of every member of this Court or every member of the society. It involves limited surveillance of somebody who was suspected of drug activity