Back in the Stone Age of the online privacy debate, in 1999, Sun's then-CEO, Scott McNealy, raised the hackles of privacy advocates when he said about being on the Internet, "You have zero privacy, anyway. Get over it."
If McNealy was right 13 years ago, then we have less than zero privacy today. And things are just going to get worse.
In 1999, some marketers might have been able to make hay by using your search history and browsing habits. Now, more than a decade after 9/11, the government can easily access those things, along with your text messages and emails, and it can, without a warrant, use your cellphone to pinpoint your location. And take a look at what's coming: One day, the devices in your home will gather and transmit information about the most intimate parts of your life. This will ostensibly be for your convenience ("Hi, Preston, it's your refrigerator. Did you know you're almost out of milk?"), but various government agencies are going to covet all that data. They're going to feel the same about all the personal documents we'll be storing in the cloud, just begging to be perused.
The courts and federal and state laws have not kept pace with the privacy issues raised by the fact that so much of our data exists in a realm beyond our complete control. And the limits on government's ability to access that data are not well defined. For example, in Louisiana, a federal appeals court is in the process of deciding whether the data gathered by your cellphone as it tracks your location constitutes business records that belong to the phone company or personal records that require greater privacy protections. Meanwhile, in Rhode Island, a judge disallowed evidence that police had gathered from cellphones, some with a warrant, because an officer had read a text message during the initial investigation into the death of a six-year-old boy without first getting a warrant. That case led Rhode Island lawmakers to approve legislation requiring the police to obtain a warrant prior to searching a cellphone, but the governor vetoed the bill, preferring to defer to the courts' discretion in such cases. And while much has been written about the downfall of David Petraeus, we have not reached consensus on what circumstances would justify the unobstructed access to personal email that the FBI utilized while investigating matters involving the former CIA director.
Though the law remains unsettled, we are all accelerating our exposure in the cloud. It's not just our Web browsing, our online searches, our cloud-based storage and our cellphones. Everything we download to an e-reader leaves a trace, and the same is true of streaming music and videos.
So, when you get down to it, what is going to keep your refrigerator from talking to the IRS? How is it, the taxman might want to know, that you report only $35,000 in income, yet your fridge is stocked with caviar and Dom Perignon?
A good place to start to clear things up would be with the Electronic Communications Privacy Act, which hasn't been updated since 1986. The Senate Judiciary Committee recently voted in favor of a change, written by committee chairman Patrick Leahy (D-Vt.), that would require agencies to show probable cause that you've committed a crime and obtain a search warrant before they can snoop on your cloud-based data. But that proposal is going nowhere this year, and the committee's ranking Republican, Chuck Grassley of Iowa, hints that he's not in favor of it.
Leahy is right and Grassley is wrong. Next year, Congress should adopt Leahy's amendment. If it doesn't, you'd better be careful about how you stock your smart fridge.
Preston Gralla is a Computerworld.com contributing editor and the author of more than 35 books, including How the Internet Works (Que, 2006).