In his 2017 New York Times Article about the revival of the Wikimedia v. NSA case, Charlie Savage raises a very important question: How do we apply old legal concepts (like the First and Fourth Amendments) to 21st century communications technology?
Maybe we don’t.
In the article, Savage outlines the details of the case, explaining that it was initially dismissed because there was no way to prove that Wikimedia’s messages had been intercepted by the NSA. However, influenced by an earlier New York Times article in 2013, about how the NSA screens for emails and online communications, the three-judge appeals panel decided that based on how many internet communications Wikimedia engages in, it would be impossible for none to have been intercepted. We’re not talking about wiretapping one person’s phone, we’re talking about hundreds of thousands of emails.
Savage talks a lot about the significance of this revival. Reopening this case made it seem possible for internet surveillance by the NSA of companies and citizens to be looked at as a legal privacy issue under the Fourth Amendment. But now, over two years later, internet surveillance isn’t only something that we still experience, it’s something that’s basically common knowledge. According to the Pew Research Center, 78% of 18 to 29-year-old Americans believe that the government is monitoring their calls and emails, yet nothing has really changed, legally speaking.
Everyone covers their webcams and jokes about how their phones are always listening, but nothing ever changes. We’re not asking the question of if surveillance exists anymore. Like Savage, we’re asking the question of how we can uphold privacy laws and regulate surveillance whether it be by advertisers or the government. The more time that goes by, the more advanced technology for internet surveillance becomes.