If the NSA wants to read my emails, that's pretty much okay by me. I know I'm not alone in this sentiment, but I am surprised at how many people seem to disagree.
I've been using email since the early '80s, when I accessed it at Tufts University's "Computer Lab," down in some godforsaken basement in the Engineering School (I was Liberal Arts, but I had been studying computer programming in "BASIC" language since 1981, and I was excited to try my hand at "FORTRAN" in college). A lot of shenanigans went on via email even back then, and I even recall receiving several obscenity-laced communications from an obviously prescient junior Computer Science major (he already understood email's sexy future). I also remember wondering if he realized that there was a pretty decent chance that his emails would eventually make their way into the wrong hands.
I discovered the Internet while in my last year of law school at NYU in 1990. I remember discussing the merits of Prodigy versus AOL as dial-up Internet "portals" and suggesting to a friend that the fact that AOL offered anonymous "handles" might not make much difference when it came to true anonymity and privacy concerns: All data would eventually link back to the dial-up you used and then ultimately, to your telephone.
I became an avid user of the Internet in 1994, when I began doing legal work for a small Internet Service Provider. There were message boards and chat rooms, and I dove right in, although I was never not wary of the risks I was taking with respect to my privacy. I mean, basically, I had little expectation of privacy, but I didn't let that stop me from exploring this cool, new "information superhighway."
Fast forward now to May of this year, when Edward Snowden disclosed to the media classified information regarding PRISM, the once-top-secret American program that is now known to collect, among other things, Internet data on American citizens. Some see Snowden as a hero for casting "sunlight" on a what they see as a systematic violation of what they also see as constitutionally protected privacy rights of individuals. Others see Snowden as a villain for disclosing and causing the dissemination of classified information with respect which he was under a moral and legal obligation to maintain confidentiality. Regardless of how any of us may feel about Snowden, 48 percent of Americans see an "unnecessary intrusion into Americans' lives," and 32 percent see a "justified as a way to combat terrorism," according to a Huffpost/YouGov poll conducted the second week of August and reported on August 17 (reflecting a change from the 55/22 ratio noted in an earlier poll).
Those who oppose the NSA's data-collection activities tend to do so on the basis of what they believe to be a constitutionally based "right to privacy." At the same time, and perhaps somewhat paradoxically, they tend to call for a high level of disclosure by the government, even where its activities are deemed sensitive and in need of security classification -- such activities being essentially the governmental equivalent of what individuals might consider to be private matters. Those who support -- or who, like myself, simply do not oppose -- the NSA's data-collection activities, tend to see it through a different "prism," if you will.
As for me, from what I learned in Constitutional Law, as well as Torts, Civil Procedure and Criminal Procedure, among others, I can tell you with absolute certainty that the Constitution makes no specific reference to any "Right of Privacy." Rather, the "right to privacy" is a construct that grew out of Supreme Court case law. Although it had its roots in earlier cases, it was first described in 1965's Griswold v. Connecticut as a "zone of privacy" emanating from specific rights granted expressly by the Bill of Rights. While the "zone of privacy" is acknowledged, it is nevertheless not without borders. The Supreme Court's 1967 Katz decision established that the "zone" of privacy ends where an individual has no "reasonable expectation" of privacy.
And even where a "right of privacy" has been found to exist, it is not unfettered. Rather, it is limited by law and public policy. Thus, while generally speaking, no one can stop you from watching port in your house, it's illegal to watch child pornography no matter where you are.
Similarly, although your home is generally within your "zone of privacy," your right to do as you please is limited. Murder is prohibited, for example, and if law enforcement finds probable cause to search your home for evidence of a murder -- or other crime -- they can. And when they do, you should expect they'll take your hard drive and search that too. And your emails, texts and phone records, including a record of cell phone towers off of which your cell phone received its signal. Even if law enforcement is unable to obtain a warrant, they can still follow you down the sidewalk (based on the Katz decision), and if you discard a cigarette butt or a Kleenex, they can pick it up and have it tested for fingerprints and DNA.
Next time you go to a convenience store, you might notice that a video surveillance camera. Now, if you're there to rob the place, you might be annoyed. But most likely, you won't give it a second thought because you recognize the necessity, plus you have no expectation of not being recorded while at a convenience store.
The way I see it, the same rules apply to governmental Internet surveillance. As I said before, intuitively, I just sensed that "privacy" didn't go well with something called an "information superhighway" or a "world wide web." And as an attorney for an ISP, I had occasion to peruse many an Internet Provider's Terms of Service, which tend to include a statement to the effect that "online communications and other information may be disclosed under certain circumstances -- including governmental requests and legal process." Same with browsers, email services, social media networks and other websites.
But let's say that you're someone who never met a Terms of Service that you thought was worth reading. Your common sense must still remind you that all it takes is one errant "Reply All" or "Forward" destroy a career or a reputation. Who amongst us has not texted the precisely wrong person exactly what we did not want them to read? And anyone who knows the origins of the word "dooced," will probably recall that people were getting fired for what they posted on the Internet long before you were blocking your boss from seeing your Facebook page.
I'm not saying I embrace the idea of the government collecting data on me. But when I read about the reports of the NSA's, I yawned. And I scratched my head at all the fuss some of my more secretive acquaintances were making. Did they actually expect their emails were private? As I tell my teenage children: Kids, just please don't don't put anything on the Internet that you don't want everyone in the world to see.
Still, they use the Internet. So do I, and so does everyone I know -- even the people who complain about the NSA. Most of my friends shrug and and say, "I got nothing to hide." Sure, most of us can think of a few emails we wish weren't floating in the ether. But the reality is that "embarrassing emails" do not rise to the level of "something to hide" unless they criminal behavior is involved. On the other hand, the purpose of the NSA's surveillance is to catch terrorists. So, personally, considering that I never expected Internet privacy, that I have no criminal activity to hide and that I lived on East 79th Street on 9/11, I'm willing to let it slide.
Lauren Cahn graduated from NYU School of Law and worked as an attorney in New York City from 1990 through 2003.