In just the next few years, advances in technology could raise new privacy questions that the U.S. Supreme Court – and new Chief Justice John Roberts – will have to answer.
Just a few weeks ago, before John Roberts was sworn in as the 17th chief justice, he faced some tough questions. Conservatives and liberals alike baited breath during the confirmation hearings, particularly when Roberts addressed the “right to privacy” issue.
“Do you believe today that the right to privacy exists?” asked Senate Judiciary Committee Chairman Arlen Spector, R-Pa.
Roberts responded almost immediately that he did believe that there is a right to privacy, adding that this had been established by a series of court decisions over the past 80 years.
Those on the right and the left were perhaps most interested in Roberts’ position on the issue because of its implications for Roe v. Wade, the landmark 1973 decision that overturned state laws against abortion on the grounds that they violated constitutional privacy rights.
But the right to privacy is sure to have even broader connotations during the new chief justice’s tenure. In coming years, the War on Terror is likely to elicit many questions regarding search and seizure, surveillance and profiling.
For instance, someday genetic mapping will be easy, cheap and detailed – and will be able to be performed without the subject’s knowledge. What privacy protections will people have for their genetic map or others’ use of such data remains unclear.
The questions do not end there.
Future surveillance technologies and techniques stand to pose a number of challenges for individual privacy protections. Automatic face recognition technologies will soon allow corporations and law enforcement to identify people at will, without their knowledge or consent.
In a recent New York Times article, Mark Rotenberg, head of the civil liberties organization the Electronic Privacy Information Center, described how technology like this may be used in law enforcement. Cameras might capture the face of a young man walking around in public, identify him and query his name through a series of commercial databases, yielding information such as his travel records, magazine subscriptions and other personal details.
After vetting such information, a computerized scoring system would then process it and potentially single out the individual as a potential terrorist threat. Police could then apprehend him and search his backpack. Should they find a bag of marijuana, he would be subject to charges.
Would such a search be constitutional? Situations like these used to thicken the plot of action movies, but are increasingly becoming real-life possibilities.
As for Roberts, many remain unsure about where exactly he stands on issues of privacy rights, despite his responses from the confirmation hearings. In a 1981 memo, he wrote about the issue as the “so-called ‘right to privacy,'” giving some rights advocates reason for pause.
There appears to be even more mystery surrounding Harriet Miers, President Bush’s nominee to replace Justice Sandra Day O’Conner. Miers has drawn skepticism from both Democrats and Republicans, who are puzzled over her legal philosophy since she has not served as a judge before.