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Susan Estrich: The big joke about privacy

In 1967, Justice John Marshall Harlan (one of the greats) wrote a concurring opinion that, to this day, establishes the constitutional test that protects our privacy from the government.

It happened that one Charles Katz went into a pay telephone booth to make two calls. In the days before cellphones, there were pay phones in translucent stalls, where you could close the door and no one was supposed to hear you.

Katz closed the door and made calls about betting wagers to New York and Los Angeles.

Unbeknownst to him, the government had planted a listening device on the outside of the booth and recorded the calls, which it then used to prosecute him.

On appeal to the United States Supreme Court, that conviction was reversed because it was secured in violation of Katz's 4th Amendment right to be free from unlawful searches and seizures. The test, as Justice Harlan memorably explained, was whether Katz had a "reasonable expectation of privacy" when he made those calls. Yes, it was a public phone booth, but the 4th Amendment protects "people, not places," the court ruled. Yes, there was no physical intrusion into the booth, but the 4th Amendment does not require trespass.

I read Katz when I was in law school, and wiretapping was the big issue. I taught it for decades, when all kinds of undercover investigations were at issue.

Those cases were easy, because in those days, it was reasonable to expect that even if you ventured out of your home, and certainly if you didn't, you did not lose all expectations of privacy.

On the way back from lunch the other day, my assistant and I stopped in a cosmetic store she had never heard of so I could see if it had my shade. She never took out her phone. She certainly wasn't looking for overpriced makeup.

When she got home, she was inundated with ads for the makeup.

Because her phone, supposedly asleep in her purse, was, of course, not asleep at all. It was busy communicating that she was in the store, as well as all the other things they already know about.

Years ago, one of the big-box retailers decided to target pregnant women. It didn't take much to figure out who they were, and once the retailer did, the women were inundated with ads for everything from prenatal vitamins to maternity clothes to strollers. The only problem was that many of these women had not yet told their own families, which made it particularly creepy to see that the retailer knew. The campaign was a failure until the retailer figured out why the women were turned off by it. So it added such things as lawn mowers and garden equipment to the items it was pushing, leaving women to feel very lucky that it was also advertising products they were interested in.

We are so easy to fool. Except now, no one even bothers.

A "reasonable expectation of privacy"? Who but the most naive of us ever has a "reasonable expectation of privacy" when we type on a computer or carry a cellphone into a store? And if you think that's bad, consider what happened to my assistant the next day: A relative mentioned over coffee that she should have gone to a certain orthodontist's office for her braces, and by the time my assistant got home, the advertisements were pouring in for the office, a place she had never set foot in.

Years ago, Derek Bok, then the president of Harvard, lamented that the great minds of my generation were all becoming lawyers.

The great minds of this generation are all doing targeted advertising based on knowing everything there is to know about you.

People worry that the government is "spying" on them. Trust me, the government is not listening to your conversation about your teeth, and couldn't use it in court without a warrant. The Constitution still has some teeth. But it only limits "state action." The Founding Fathers clearly never anticipated that privacy would be destroyed privately, by technology and terms of service that most of us don't even read and couldn't change if we wanted to.