The Internet

The Internet is our cyberspace. The Internet is a collection of computer networks that are all connected together. Computers connected to the Internet can provide services or utilize services, and usually they do both. Computers on one side of the world can make requests of computers on the other side of the world. The application most people are familiar with is the World Wide Web, and its associated web pages and web sites.

Computers and the Internet: Privacy’s Brave New World

All Constitutions, Federal and State, have been tested by the advance of technology. Many of the technological innovations over the years could not have been imagined by the original authors our Constitutions. Nevertheless, Courts are required to apply their respective Constitutions to circumstances and situations that occur only because of new technologies.

Computers and the Internet are two of the many new technologies that together have changed how much of the world communicates, stores information, finds information, and conducts business. “[T]otal interconnectedness of human beings through computers and telecommunication without regard to physical geography.” William Gibson, Neuromancer, Ace Science Fiction, 1984.

Next, I will describe some attributes of the Internet to help the reader appreciate the challenges to the law this new technology presents.

A Common Understanding of Privacy

Though lawyers and judges, alike, may not appreciate it much, people know what privacy means. Ask a non-lawyer what privacy means and they will likely come up with a definition similar to these:

Privacy:

1 a: the quality or state of being apart from company or observation: SECLUSION b: freedom from unauthorized intrusion (one's right to privacy)
Merriam Webster Online Dictionary

The condition or state of being free from public attention to intrusion into or interference with one's acts or decisions.
Black’s Law Dictionary (8th ed. 2004).

Non-lawyers likely believe that their mail is private; they believe that their e-mail is private; they believe that their bank statements are private; and depending how much they know about the USA Patriot Act, they probably believe that their library records are private. This may seem obvious, but I believe it is critical for lawyers and judges to remind themselves of what privacy means in the “real-world.”

I believe that where the Law’s understanding of privacy differs from the citizenry’s view privacy, the public’s trust and confidence in Law is eroded. This is one reason why lawyers should work to make the Law’s view of privacy consistent with the citizenry’s view.

Introduction to Privacy

Most Americans believe that privacy, to one degree or another, is an inherent right. While there may be disagreements among persons as to the breadth, scope, and source of the right of privacy it is clear that they believe in such a right. The average person, no doubt, has a “gut feeling” of what is private and what is not. They can easily identify whether something should be considered private. Unfortunately, the same cannot be said for judges and lawyers. At least this is the conclusion one can come to after reading how the US Supreme court and others have struggled to define privacy.

Courts have had difficulty dealing with advances in technologies that challenge legal formulations and tests regarding privacy. Lately, the emergence of computers and the Internet as common fixtures of society have continued to push the current state of privacy jurisprudence to its extents. In this paper I will make an attempt to examine: how the current privacy law has developed in response to advancing technologies; where the Federal interpretation has gone astray; and how Washington State’s constitution, can be used to move the law of privacy closer to something that approaches how the persons subject to such laws, actually understand privacy.

The Issue

How can Washington State’s perspective on privacy be used to illuminate the path towards a Federal understanding of privacy that makes sense in the age of computers and the Internet?