Establishing norms of privacy in an era of surveillance technology: A role for psychologists

One morning a couple of years ago my family and I awoke to the shocking realization that intruders had broken into our home and entered the very rooms where we lay asleep.

Although we lost several items of significant material and sentimental value in the burglary, I believe the most disturbing aspect of the crime was the feeling that my family and I had been violated, that we had suffered a loss of privacy and security. It would be months before we would again begin to feel safe and secure within our own home.

People generally place great value on privacy. It is one of those commodities we tend to take for granted. Who among us wants strangers snooping through our private belongings, reading our correspondence, listening in on our phone calls, watching us, intruding upon our personal life? We Americans, however, recently learned that our government is engaged in just that sort of snooping.

Americans, it seems, are a very forgiving people, at least with regard to the errant behavior of our president. The limits of our willingness to forgive and forget, however, appear to have been severely tested by recent revelations of electronic eavesdropping on American citizens, authorized by President Bush in 2002, and without the legal safeguards established to monitor and control such intrusions. Out of the array of issues facing the Bush presidency, it is interesting that the issue of privacy would finally be the one that produces a broad bipartisan public outcry and demands for the investigation and reigning in of presidential powers.

The Fourth Amendment to the U.S. Constitution was established to protect the people of our country from unreasonable searches. Searches are generally considered reasonable only if they are conducted pursuant to a warrant which has been issued by a court based upon probable cause. If an activity is not a search, it is not governed by the Fourth Amendment. Thus, the question of what constitutes a search becomes very important.

Originally the word “search” was considered to necessarily involve a physical intrusion into some place. It eventually became apparent that emerging technologies like telephone “bugs” provided means of conducting surveillance that did not necessarily involve a physical intrusion.

In a 1967 decision, the U.S. Supreme Court held that what an individual "seeks to preserve as private" is to be afforded constitutional protection, regardless of whether a physical intrusion is involved. In the words of the court, the Fourth Amendment "protects people, not places." In order to be protected, the individual must 1) have an expectation of privacy, and 2) this expectation must be considered reasonable by society.

This determination by the Court has raised questions for psychologists to address: What do individuals seek to preserve as private, and what privacy expectations does society consider to be reasonable?

Psychologists have identified some of the variables that influence people’s perceptions of the degree of intrusiveness of surveillance activities. For example, Dorothy Kagehiro and Ralph Taylor reported that undergraduates tended to view searches of their own property as more intrusive than searches of others’ property. Furthermore, roving, searches in the absence of suspicion were deemed more intrusive than searches directed toward acquiring specified evidence.

Some have theorized that people tend to view the intrusiveness of surveillance activities as a function of the strength of the presumption of guilt. For example, in a case where a suspect is handcuffed and detained, the presumption of guilt is high, and searches would be considered less intrusive. When a search relates to a serious crime, and when the motives of law enforcement officials are judged to be protective, the theory would predict a tendency to view the search as less intrusive.

In general, psychological research has agreed with Supreme Court decisions concerning the degree of perceived intrusiveness of various search activities. In some cases, however, research has revealed social sensitivities in areas not yet protected by the Court. For example, the public seems to view drug testing by employers, and activities by undercover agents and dogs as highly intrusive. Nevertheless, the Court has yet to establish a substantial privacy issue pertaining to such tactics.

Psychological research will, no doubt, continue to explore factors that influence people’s notions of privacy and the perception of intrusiveness by law enforcement officials. For example, to what extent do the nature of the measures used influence their perceived intrusiveness by the public? Does the nature of the place being searched make a difference? Does the degree of physical intrusion have an effect upon the public’s perception? How do privacy expectations change in response to advances in surveillance technologies? Questions like these are well suited to psychological investigation.