Expert: Michael Troy - 1/4/2010

Question
Dear Mr. Troy,
I am a senior in high school and I'm doing a research project on the topic of "Big Brother" in the United States and around the world. I was wondering if I could get your opinion (good, bad, unconstitutional? etc.) on increasing security measures such as cameras in public places, the government storing our phone conversations, etc. Also, I wanted to see what you might think implications of current techniques might mean for the future. Thanks for your time and response.

Sincerely,
Dylan  

Answer
Hi Dylan,

This is more of a 4th Amendment issue than a 1st Amendment one.  Most of the criticisms of these measures are that they are unreasonable government searches of innocent people.

That said, I have never been terribly concerned about cameras in public places, and neither have the courts.  There is no reasonable expectation of privacy when one is out in public.  Certainly the government would have the authority to put a Police officer on every block watching what happens.  The fact that technology makes it less expensive to do the same thing effectively with cameras does not really raise much of a Constitutional issue.

Of course, this does give the government more power, which raises concerns that it could be used for bad purposes.  If the government used this power to suppress political dissent or harass political opponents, that would be a problem.  But the issue there is not the technology itself, only how it is used.

Government tapping and recording of private phone conversations and emails of course raises more concerns for me.  These communications do have a reasonable expectation of privacy.  Many of the wiretapping initiatives that have been revealed appear to violate federal laws and traditional Constitutional protections against unreasonable searches.  There certainly may be valid law enforcement reasons for such searches, but the notion that lots of innocent conversations may be searched in hopes that some violations of law might be discovered seems to violate most traditional notions of what constitutes and unreasonable search.  My view is that if such practices continue, they should be done under new laws that put the public on notice about the lack of privacy, and put in place reasonable protections to ensure this information will only be used for certain legitimate law enforcement purposes.  To date, that has not happened.

There are also lots of newer technologies which allow law enforcement authorities to listen in on private conversations inside a home, or even view private activities in a home.  In my view, those should be subject to warrants.  Several courts have held the same way.  However, I expect this will continue to be an issue in many cases.

- Mike