Is The Right to Privacy Compromised via Emails, Text, Cell Phones or Browsing the Internet?

Dating back to 1789, the Bill of Rights was enacted establishing personal freedoms to protect the public from and thereby limit the Federal Government. Not very long after, the states ratified these laws so these freedoms applied equally to action by state governments. The Fourth Amendment to the U.S. Constitution was adopted in response to the abuses of the British government and to prevent unlawful searches and seizures. The earlier decisions of the U.S. Supreme Court interpreted the 4th Amendment to bar actual and physical intrusion by law enforcement into &/or on one’s private property. Later decisions, however, rightfully expanded the limitations on the government to our individual rights to privacy.

But the question of governmental intrusion is no longer the only conundrum we face in society. There is what could be labeled a scourge of interference in our right to privacy through expanded and invisible electronic surveillance (for the purpose of this blog, however, the author is not referencing CCTV or other types of concealed commercial video cameras).

Focusing instead on the internet, our email, cell phones and text messages, have you given any thought to the impact on our right to privacy, a concern that did not exist during the previous four centuries? Today, businesses are extracting information from the content of our messages, whether email, text, cell phone or simply browsing (surfing) the internet. They are recording the words we use and the places we visit to build profiles of who we are and our interests, collecting the data and selling it to other companies.

Should you have a concern that businesses and individuals are able to and actually monitor and secretly eavesdrop into our private lives? For example, one decides to go online to research the availability and prices for binoculars for an outdoor event they intend to obtain tickets for, an otherwise ordinary and uneventful activity. The next time that individual searches the internet for something totally different, even a newsworthy article, there will be advertisement banners for binoculars in the headers of the pages. Similarly, customer data in our emails are scanned by the various email providers and soon thereafter one will view contextual advertisements dealing with words and subjects that otherwise one might believe his/her emails were totally private and protected.

What do you think? Should your personal information be your own? Should you have a right to privacy and expect that what you view online, what you write or receive in an email or text is not accessed by anyone, whether government, business or any private individual? Should heretofore unidentified companies know everything about us, our interests, our family and friends, under the stated goal to sell advertisements that are intended to solicit our business? Is there a risk of fraud &/or unlawful activity well beyond what may seem an ostensible commercial purpose when data mining produces what we heretofore believed were our very private personal profiles? You be the judge.

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

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