In my latest FindLaw column, I consider the legal implications of the President's use of a Blackberry. (President-elect Obama is apparently being told that he has to stop using his once he's President because of security concerns and the requirements of the Presidential Records Act). The core point I make in the column is that legal duties to disclose information---whether those that apply to govt officials or private firms---should not depend on the medium in which the particular information happens to be stored but instead, on whether the information is of the sort that should be disclosed. In particular, I note that email and text messaging can, in different circumstances, be more like documents or more like oral speech, and I conclude that in some respects it is its own unique method of communication.
Here I want to play the futurist for a moment and ask about a dystopia of total recall. Already, so-called "life bloggers" attempt to record nearly their entire lives, either photographically or in text. Technology now exists so that a person who wanted to could, in fact, record his entire life. Let's suppose such technology becomes cheap and unobtrusive: perhaps a very small audiovisual device implanted in the forehead subcutaneously. Could firms or persons be required to record their entire lives---with searchable records generated automatically?
Consider the benefits: Credibility contests would disappear, as would the ability to dissemble. Crime more broadly would decline dramatically, as anyone who is deterrable would see the near-impossibility of detection.
Of course the idea of mandatory total recall and total disclosure is totalitarian and repugnant. Or at least so it may seem to those of us who grew up in a world in which we believed in the value of privacy. But the popularity of personal blogs, myspace, facebook, etc., and the willingness, indeed eagerness, of large numbers of young people to broadcast what my generation would regard as private details of their lives, suggests that this norm may be changing. (Needless to say, I consider blogging about law and politics more "public," although there are many people who do not voluntarily disclose their views about such matters, regarding them as private.)
From a constitutional perspective, the erosion of privacy norms is potentially significant. To determine whether government activity constitutes a "search" requiring probable cause and a warrant, Fourth Amendment doctrine inquires into whether the activity probes an area where there is a "reasonable expectation of privacy." That term, in turn, depends on whether people subjectively expect privacy and whether they objectively have privacy in the relevant domain. As social norms and technology change, this area may gradually shrink to zero.
Posted by Mike Dorf