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Does Private Mean Secret?

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24 January 2012
Michael Fitzgerald

Today, the U.S. Supreme Court issued a very interesting decision which identifies, but does not resolve, the complicated issues of privacy in the digital age (U.S. v. Jones, opinion found at http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf ). The case deals with the use of a GPS monitoring device to gather information about a suspect.A concurring opinion issued by Justice Sotomayor foreshadows the work that will eventually need to be done regarding the privacy conundrum in the age of smartphones, blogs, and big data mining.She recognizes that, in the past, the Fourth Amendment protection against unreasonable search and seizure has assumed “secrecy as a prerequisite for privacy.” She points out that, in today’s society, we all provide data in public exchanges of emails, social network postings, etc., when we engage in commerce, communication, or for convenience. However, her opinion is that persons providing data in this manner may not want the data used for broader purposes. The current law of the land as interpreted through past judicial decisions does not limit the use of the data if it was voluntarily (eg. not secretly) given / obtained.She, and other justices on the court, use the Jones decision to highlight the need to bring clarity to privacy issues in the digital / mobile age.

These decisions will directly impact the use of data in insurance transactions such as claims investigations and underwriting.Not being a lawyer, I cannot weigh in with an informed prediction about which way the court will rule, but my intuition is that it is going to be difficult to establish a standard of privacy that can be applied based on the intent of the person offering the information. When and where we can expect privacy is very different in this age of digital communication and I can tell that the issue will be difficult to resolve.

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