Privacy has long been a contested subject in American law. The Constitution does not explicitly guarantee a right to privacy—the word itself never appears in the text—and courts have spent decades debating whether such a right can be derived from its provisions and, if so, whom and what it protects. The Fourth Amendment’s prohibition against unreasonable government searches and seizures is considered the foundation of American privacy law, and courts have, over time, extended protections to one’s cellphone and to reproductive and sexual behavior. But the concept of privacy, like that of freedom or of justice, is a supple one. The legal definition of the concept has shrunk or ballooned to meet the needs of political and capitalist forces, proving how malleable the notion could be when needed. As Jeannie Suk Gersen wrote for The New Yorker, in 2022, “The right to privacy should have been understood from the start as a prerogative of the people, establishing a zone where the state cannot readily trespass,” but, instead, became “a prerogative of the privileged, intent on keeping the general public at bay.” This tension—privacy as a right or as a privilege—has been intensified by national-security powers and by revolutions in digital technology. Writing for n+1, in 2013, Jill Priluck noted that “the expanded privacy rights of the 20th century have with the transition to digital data become obsolete in many situations.” She referred to Justice Samuel Alito’s concurrence in the case United States v. Jones, from 2012, which held that the Fourth Amendment applied to G.P.S. surveillance. “New technology may provide increased convenience or security at the expense of privacy,” Alito warned. “Many people may find the tradeoff worthwhile.”
Trade-off, security, safety—this was the language of the post-9/11 surveillance boom, and, lucky us, it never left. The journalist Richard Beck, in his book “Homeland: The War on Terror in American Life,” from 2024, summarizes the ends to which the fear of terrorism drove an unimpeded and irreversible increase in mass surveillance within the U.S. When the Patriot Act was introduced to Congress, a month after 9/11, a “remarkable spirit of bipartisan unity” allowed for “the biggest expansion of law enforcement detention and surveillance powers in history.” Even so, some Democratic senators, such as Pat Leahy, though they broadly supported the bill, were concerned that it granted the intelligence agencies too much power, and lacked sufficient transparency measures and judicial oversight. As the bill reached a logjam in Congress, Attorney General John Ashcroft began publicly to put pressure on the senators holding it up. “We think that there is a very serious threat of additional problems now,” he said during an appearance on “Face the Nation.” Later, he told CNN that he was “deeply concerned about the rather slow pace at which we seem to be making this come true for America. . . . Talk won’t prevent terrorism; tools can help prevent terrorism.” The tools Ashcroft was referring to were being developed in tandem with Silicon Valley executives—biometric data, facial-recognition software, omnipresent CCTV cameras, electronic-communication surveillance. “The kinds of surveillance the government wanted to implement dovetailed nicely” with Silicon Valley’s own goals, Beck observed, noting how these surveillance systems required unfettered digital access to everyone, not just perceived foreign antagonizers or known criminals. Anyone could be a terrorist, the thinking went, and so everyone must be monitored.
Mass surveillance can be difficult to comprehend or think plainly about, ensconced as we are in the digital cocoon of contemporary life. How are we to understand the scope, nature, and threat of systems we cannot see or touch? When we use social media, or accept online privacy-policy updates and agreements, it can be unclear how, exactly, we are being violated. Are we not consenting to these services? Are we not uploading images of ourselves and freely conversing with friends and colleagues, knowing the potential risks of being tracked by our government and tech overlords? How are we to engage with these digital platforms without feeling paranoid, or dissociating from the fact that we are potentially being watched by law-enforcement agencies and large corporations? Zuboff, in her book, described this quandary as “a psychic numbing that inures us to the realities of being tracked, parsed, mined, and codified.” In other words, we must convince ourselves that the digital communication and information systems we use are harmless and, indeed, beneficial, in order to keep using them. Opting out of online life has become nearly impossible given how crucial these tools have become in many professional, academic, and personal contexts. We’ve accepted the compromises of the internet mostly out of submission; there is no visible or viable path for existing in the modern world without in some way resigning ourselves to the realities of surveillance.