Is Technology Creating Reduced Expectations of Privacy?

September 21st, 2009 | By David Elkanich

Over the past few weeks, a couple experiences have me thinking about how technology may be affecting our collective expectations of privacy.

First, I was recently one of the lawyer participants at an Oregon law school’s professionalism program. It was held on one of the first days of school, and the intent, at least partly, was to bring real life experience to incoming first years. It was a blast and the kids were great. During the hour or so with the students, we used hypothetical fact patterns to discuss ethics and professionalism. One fact pattern dealt with a Bar’s viewing an applicant’s Facebook page during the application process. I may not Facebook, but incoming first years sure do, which in turn led to a discussion concerning how private we can expect information to remain when one voluntarily places it on the web.

I think this led to a realization for some of them that the wild exploits they post online may now be available for anyone to see: including bar associations, opposing counsel, clients, and employers. Is it any wonder then that the Florida Bar wants to view an applicant’s Facebook page? Or that the Philadelphia Bar Association was asked to opine on how a  lawyer may investigate online information.

Second, I was recently speaking to someone about technology use in the courts. This person — who works in the courts — told me that one of the bigger surprises he sees, is with jurors who want to keep and use their phones during deliberations. This person told me that younger jurors question why they cannot use their phones to research and/or investigate any questions they may arise while considering a case.

Maybe these are just two random examples, or maybe they are emblematic of something more. Either way, they demonstrate the pervasive nature of technology. Like metadata, it is everywhere. We can’t run from it — but maybe we should sometimes take a break from it. This reminds me of what Google chairman and CEO Eric Schmidt told recent graduates at the University of Pennsylvania:

“Turn off your computer. You’re actually going to have to turn off your phone and discover all that is human around us,” Schmidt said. “Nothing beats holding the hand of your grandchild as he walks his first steps.”

(See here for an article discussing the speech.)

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