In Code 2.0, Lawrence Lessig says that a good argument against invasion of privacy in cyberspace can be to think of it as an affront to personal dignity protected by the fourth amendment:
But it may be that we understand the Fourth Amendment to protect a kind of dignity. Even if a search does not burden anyone, or even if one doesn’t notice the search at all, this conception of privacy holds that the very idea of a search is an offense to dignity. That dignity interest is only matched if the state has a good reason to search before it searches. From this perspective, a search without justification harms your dignity whether it interfaces with your life or not.
Although I generally agree with this interpretation of the fourth amendment, I disagree with the argument made that all digital survellance violates the amendment. If a worm or a bot is installed on your computer and it is programmed to performed just one query, I don’t see it as being in violation because even though that search might have been performed without your knowledge, there’s a good chance that it wasn’t performed without your permission. Everyday, we give permission to monitoring mechanisms by using the technologies that we use. We might not know that we are giving permission to the government and to corporations to put us under constant surveillance. We might know and agree to use these technologies anyway, thinking of it as a price to pay for the conveniences that they offer. In this respect, in the corporations’ view at least, dignity isn’t being violated because you sign user agreements that give them the permission to do that. Where one can strongly argue that dignity is being violated is when the technology involved isn’t technology that you agree to use or had the option to sign a user agreement for. Methods produced by these technologies might be unobtrusive but the feeling of knowing that the sole purpose of this technology is surveillance and that there’s nothing you’re getting in return might create a clear feeling that your dignity is being violated.
If the argument is that the fourth amendment protects against offenses to human dignity, what exactly does dignity mean and how is it violated? Digital surveillance and search occur en masse unobtrusively because new technologies make it easy to do this. If they occur en masse, I don’t think personal dignity is an issue because it isn’t like being singled out, monitored and searched. There’s an example Lessig gives which I don’t think is a very good example because it doesn’t factor in the massive aspect of modern-day surveillance. To explain how search can be undignified even if the person being searched doesn’t feel like it is intrusive, Lessig uses the example of young teens being stopped and searched by police officers after an incident was reported nearby. Simply put, there were singled out and searched. There were probably bystanders, onlookers and passers-by present during the search. Online, there are no bystanders, onlookers or passers-by, we are all subjected to the same search and monitoring. In Lessig’s example, I think the youth who vividly expresses his outrage is also accounting for bystanders, onlookers, and passers-by when he feels his dignity is being violated. Online, digital surveillance is a shared experience and to me, doesn’t feel like an affront to dignity so long as when I find out that I’m being searched, I don’t feel singled out.
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