I am all for protecting one’s privacy. Where I differ with folks like the Electronic Frontier Foundation is in the definition of privacy; concept or process. Privacy as a concept is great if you are member of a high school debating society.  It gives liberals something to rail against. But like other great philosophical debates, “how many angels can dance on the head of a pin?”  The answer is unknowable and thus cannot be resolved. As always, I am not a lawyer and have never played one on TV. 

Privacy as a process is measurable and has been for quite sometime. Beginning in the 1960’s the Supreme Court came up with the concept of “a reasonable expectation of privacy”.  It was first advanced in a birth control case and later expanded to include criminal search and seizure issues. Privacy as a process requires a cost benefit analysis as to what is reasonable and unreasonable.

The concept is relatively simple to follow. Individuals have a reasonable expectation of privacy dependent on several factors.  First of all the expectation has to be based on what society as a whole will allow, not individual expectations.  This almost automatically shuts down debate in some areas and frames it in others.  Is it reasonable to expect privacy in the: home, bedroom, office, car, backyard, front yard? Does it offer protection from family members, friends, casual passerby’s, and police? In determining reasonableness the decision maker is not limited to a list but can mix and match factors as the circumstances warrant.

A man’s home is his castle, it provides protection from the elements and prying eyes from outside the family.  What about a glass house? Are there drapes?  Does it sit in the middle of one hundred acres?  Depending on the answers there may still be a reasonable expectation of privacy.

The court put some of the responsibility back on the individual making the claim.  What have you done to protect your privacy? Covering your eyes and shouting “you can’t see me” like a two year old doesn’t make it. Turning away, whispering in the telephone and speaking in code at the police booking desk may be enough to assert that expectation.

Here comes the equivalent of the crying two year old, in the form of the Dave Maass and the Eectronic Frontier Foundation.  It seems EFF is up in arms about License Plate Readers as deployed in Kyle, Texas. 

As an aside, I know Kyle, Texas.  Up until the mid 80’s the City might have encompassed six blocks. Area wise, it is probably now the largest city in Hays County. The county is one of the fastest growing counties in the United States. Since it had no infrastructure, until recently, it is not surprising that what is being put in place has all the modern bells and whistles.

For those of you that don’t know, license plate readers are video cameras that can be mounted on patrol cars, stuck on poles, and traffic lights. I would guess that any entity; government, business, or other wise could link exiting cameras to the system.  The cameras record the license plate number of all vehicles that come within range, enter it in a database and check it against other specified databases and store the results for future inquiry.

In the case of the patrol car mounted system every license plate that comes within view of the patrol car camera is checked.  Stolen cars, cars with expired plates, cars that wanted persons are known to drive are automatically checked and the officer is notified.  The officer is capable of doing the same thing but not at the same volume.

For the fixed cameras the information is much the same.  Since there is nobody to actively exploit the information, habit and memory come into play.  Drive a stolen car through a particular intersection three mornings in a row, there is a good chance a patrol car will be waiting on the forth.

My suspicion is that the system will go even further.  Want to track the movements of a known suspect? Provide a license number and every time that car trips a camera it is noted. Instead of randomly searching a whole city, the search is narrowed to specific points the suspect is known to visit during the time he is known to be there.

Consider your daily commute.  Thousands of people observe you at various points during your trip.  The state requires that your vehicle display license plates. There is no expectation of privacy in the contents of your license plate. Everyone of these thousands of people have the ability to see and copy that number down. They have the ability to observe how you are dressed, do you drink coffee, or if pick your nose at traffic lights.  All of this you have willingly exposed to public view, during your daily commute.

What Mr. Maass is decrying has been done for years on a much smaller basis.  Just ask a recently divorced cheating husband.  Chances are he was done in by a private investigator armed with a Big Chief tablet, #2 pencil and a still camera.

Let’s continue discussing daily life.  Ever bought a book on Amazon?  Searched for a widget on Google? What happened the next time you returned to those sites?

Amazon has suggestions for other books you might like.  It points out that people who bought your book also purchased other books of a like genre and provides a list.  Not only is Amazon playing your reading preferences back at you but they are divulging other’s preferences to you.

Google pop up advertising wants you to know that they have continued the search for widgets, long after you lost interest.  There in the side bar are links to more widgets.

Got a grocery store discount card or pay for your groceries with a check card?  Here’s an exercise for you, grab the weekly flyer from the store and compare it from the weekly values that are mailed to your home.  Chances are the mailed information is specific to the items you regularly purchase.  Is there a reasonable expectation of privacy in purchasing Preparation H?

An anecdotal story told by Target execs is about an irate father. He confronted a local store manager because his minor daughter had received  a personal mailer with coupons for baby clothes, diapers and all the related paraphernalia.  He protested that their advertising was inappropriate for a girl still in high school.  He later called to apologize because the advertising was on track and contrary to his expectations she had a need for such items.

We probably experience true privacy a few minutes a day in the bathroom. After that we’re stuck interacting with other people and that interaction is going to leave a record in the form of a memory, a paper receipt, an electronic transaction or a security video.  When you get right down to it the passive video may be the least intrusive, intrusion of your day. The other transactions are requesting banking and credit card information, personal identification information, and biometric information. The public is willingly giving this information to third parties for our own convenience without regard for our privacy.

The Supreme Court is concerned with government abuse of power.  The concept of “a reasonable expectation of privacy” is bright line law in regards to government intrusion. However, I think an honest appraisal of the “reasonable expectation to privacy”, cannot ignore the 900 pound gorilla in the room.  When all the interactions of daily life are considered surveillance video is not chimera that Mr. Maass imagines it to be.

Using the “totality of circumstances” another Supreme Court construct there is no “reasonable expectation of privacy”  when modern life as a whole is considered. The movements we expose to public view are less intrusive than other information we willingly expose in the course of commerce. In fact, the behavior that Mr. Maass and the Electronic Frontier Foundation complains of has nothing to do with observation but involve the retention and analysis of those observations, after the fact.