Justice Brandeis famously called privacy "the most comprehensive of rights, and the right most valued by a free people." The Fourth Amendment embodies this right, requiring a judicial warrant for most searches or seizures, and Congress has enacted numerous laws affording privacy protections going beyond those mandated by the Constitution.
In setting rules for electronic surveillance, the courts and Congress have sought to balance two critical interests: the individual's right to privacy and the government's need to obtain evidence to prevent and investigate crimes, respond to emergency circumstances and protect the public. More recently, as technological developments have opened vast new opportunities for communication and commerce, Congress has added a third goal: providing a sound trust framework for communications technology and affording companies the clarity and certainty they need to invest in the development of innovative new services.
Today, it is clear that the balance among these three interests – the individual's right to privacy, the government's need for tools to conduct investigations, and the interest of service providers in clarity and customer trust – has been lost as powerful new technologies create and store more and more information about our daily lives. The protections provided by judicial precedent and statute have failed to keep pace, and important information is falling outside the traditional warrant standard.
The personal and economic benefits of technological development should not come at the price of privacy. In the absence of judicial protections, it is time for Congress to respond, as it has in the past, to afford adequate privacy protections, while preserving law enforcement tools and providing clarity to service providers.