I‘m no fan of reality TV, but I was sufficiently intrigued by the premise of CBS’ “Hunted,” which promises $250,000 to any of nine teams of contestants who can go “on the run,” evading detection and capture for 28 days.
From a policy perspective, the show offers a startling illustration of how little privacy citizens have today. As the “hunters” in the show say, everything you do leaves a digital footprint. Everywhere you go, everything you buy, every email you send, and every website you visit is recorded and searchable.
OK, “Hunted” is still a TV show and entertainment is its priority. We know the contestants and the hunters have camera crews with them. That changes the dynamic considerably, especially when contestants must ask strangers for help. As part of the deal, contestants also had to agree to furnish access to personal records that might otherwise (but not always) require a search warrant.
That’s not to say the show doesn’t offer a picture of how pervasive surveillance is in 2017 and how easily law enforcement (and private parties) can use surveillance cameras and license-plate readers, combined with the personal information collected from a subject’s emails, texts, social media, and offline sources, to create a profile accurate enough to predict behavior and decisions correctly.
These ubiquitous digital footprints also have profound significance for Fourth Amendment rights, particularly when it comes to search and seizure of evidence. Police must obtain a search warrant to enter a suspect’s home, office or vehicle. The warrant must be signed by a judge and must specify the item or items being sought. Evidence could be thrown out if obtained improperly. However, the law has given prosecutors leeway in certain situations:
- Evidence in plain view. An officer can conduct a search if an illegal item is plainly visible. For example, if, during a traffic stop, an officer sees illegal drugs or firearms on the front seat of a car.
- Evidence gathered or found in a public place where anyone can see it or find it.
- The suspect turns over evidence to a third party.
In these cases, the courts generally say a suspect’s protection against search and seizure do not apply and there is “no expectation of privacy.”
Alas, today, the government is changing the “basic expectation of technology” unilaterally: Technology has made surveillance more intrusive and data collection and cross-referencing faster, easier and cheaper.
Ten years ago, I could sit in a public park and read a private letter with an expectation that no one else would be able to see it. Today, a high-resolution camera mounted 50 feet away can zoom in over my shoulder and capture an image of that letter in clear enough resolution for someone to read it. Video cameras embedded in contact lenses may not be far away. The state can soon argue that anything and everything is “in plain view.”
If, to navigate my daily routine—work, shop, travel and shelter myself—I must provide details of my transactions, communications and location to third parties, can it be truly said I am voluntarily surrendering a “basic expectation of privacy?”
We need a new legal test for privacy, something that balances the immense advantage technology gives the government to snoop in places it never could before.
Under the Fifth Amendment, you cannot be compelled to testify against yourself. Yet, isn’t that what’s happening here, albeit a priori? Should you ever be accused of something every personal surveillance image, bank transaction, email, web search and more can be used against you without your consent. It may be a stretch, but I’d be interested in what some legal minds think.
Steven Titch is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an associate fellow at the R Street Institute.
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