A debate is underway between the FBI and the Internet carrier Apple- centered on a cell phone belonging to one of the San Bernadino shooters- about whether the right to privacy, guaranteed, we thought, by the Fourth Amendment, should be protected by encryption that even the carrier can't read, let alone an intelligence agency. This is a perfect case for opponents of old school Fourth Amendment privacy laws because the protected material is stored on a terrorist's cell phone, a formulation conducive to public acceptance of the government's right to snoop. Is Apple taking the hit in conservative public opinion as a tit-for-tat for future good relations with the Feds? Is it expressing fear of losing customers? Or is Apple run by ideological purists who refuse to let lust for money cloud their moral judgement? Time will tell, or not.
I've made up my own mind anyway, at least regarding encryption. The battle for the Fourth Amendment is over, lost. Even privacy proponents are moving away from arcane assertions about the Fourth Amendment, which no government would adopt today as written, including ours. The situation is something of an embarrassment that we'll need to figure out at some point, though it's hard to see how we could endure the commotion of a Constitutional process removing the privacy protections of a bygone age. We'll probably just have to live with this inconsistency in the Constitution.
I've decided I don't care who or what reads my formerly private communications because I have something more protective than the Fourth Amendment: public and private indifference. Consider Dexter Filkins' revelations about covert CIA funding of the Taliban (“The Afghan Bank Heist” (http://www.newyorker.com/magazine/2011/02/14/the-afghan-bank-heist) which claimed that without truckloads of cash delivered by the CIA, the Taliban could not have survived our war against it. After they were published in the New Yorker Magazine, which has over a million readers, there was silence from every quarter. Even veterans groups were unmoved by news that thousands of American troops were killed and wounded for a war that was, at times, fake. Why do you need Big Brother to censor the news when no one cares anyway?
Americans, it seems, are so sated by surplus that we can't rouse ourselves to consider anything theoretical, like the idea that the American government might unnecessarily prolong or start wars to serve the economic interests of what President Eisenhower, in a moment of bravery that no current politician dares emulate, called the military-industrial complex (I've added to Eisenhower's formulation: the military-media-industrial complex, since the leading facilitator of war today is media).
Because of this indifference, I don't anticipate interference with my own free speech, just as the other estimated 20 million bloggers in the world are left to spout as they please. Who cares? The reading audience is so fragmented that nothing like a political response to anything currently on the Internet seems likely to emerge.
Without a real Fourth Amendment (i.e. one that has to be obeyed) the Founding Fathers are out of the picture, and we are back to square one on privacy. The time may come when people wish privacy rights would return. At the moment we don't even know they are gone.