Eric Posner:

People can more easily find out things about each other today than in 1979, thanks to the Web, and so people now expect strangers—including potential friends, mates, and bosses—to know more about them today than they did in the past. People can also more easily share personal information about themselves, and rather than refrain from doing so in order to protect their privacy, they enthusiastically post photos and videos of themselves on Facebook and other social media sites. Thus, it is possible that people’s sense of privacy is also greatly altered, as if the whole country moved from a big city to a small town, trading in the benefits of anonymity and independence for the advantages of community and security. If we’re going to update Smith to take into account technological change, we also need to update it to take account of changes in social altitudes flowing from that technological change, including the possibility that people’s sense of privacy has shrunk.

I think this rationalization is both stupid and dangerous.

I choose what information I wish to publish on the open internet. Things that I post on Facebook are not published on the open Internet - Facebook as a collection of privacy controls that limit access to that data to people on my friends list. If any of them violated my privacy by sharing that information on the open internet, I might choose not to be friends with that person anymore, and I might even be able to charge them with a privacy tort.

The information that I provide Google is not posted on Facebook nor is it posted on the open internet. I realize that Google has a record of it, but I expect them to use that record for business purposes, and furthermore, they are held to a privacy policy that constricts their use of that information to specific purposes. If they took my search history and posted it to the open internet there is no question that they would face civil liability.

The advocates of government surveillance would like to pretend that there is absolutely no distinction between typing something into a search engine and posting on a blog. Their failure to appreciate this distinction represents something between willful blindness and technical incompetence.

According to a recent Pew poll, while most people wish they could use the Internet anonymously, most people do not expect anonymity ever to be possible and yet use the Web nonetheless.

According to a recent Pew poll, while most people wish they could go downtown at night without being mugged, they know that violent attacks are possible and yet they go downtown nonetheless. Therefore, police brutality is no problem, because people who go downtown have an expectation that they might be victims of violence anyway.

Judge Pauley got it right: The NSA’s metadata program is perfectly constitutional.