Zuckerberg may have been onto something earlier this year when he declared that privacy is dead. Although digital privacy expectations may not be entirely dead, the California courtroom and corporate worlds have both done their part this month to bring privacy to extinction.

spyApple is thinking about patenting spyware that would allow it to spy on and punish those who use its devices in “unauthorized” ways. Although the company claims that its spyware would protect customers who fall victim to device theft, it is likely that Apple also plans to use it as “traitorware” to battle “unauthorized,” yet perfectly legal, activities like jailbreaking. What is most disturbing is not what the spyware would be aimed at preventing, but how it would work. The proposed spyware would be capable of taking  pictures of a user, recording a user’s voice, or even capturing a user’s heartbeat, all without the user knowing that the data capture was taking place. If Apple were to store this data for any length of time, users would be vulnerable to very personal information being intercepted by a third party, including law enforcement. But could the government really reach beyond the protections of the Fourth Amendment to access this kind of data?

Although not directly answering the question, a decision by the Ninth Circuit Court of Appeals earlier this week demonstrated, like other recent digital privacy cases, that our expectation of privacy in our digital footprints may not be as great as we think. In response to the Obama administration’s urging, the Ninth Circuit overturned its own 2004 computer-privacy ruling, which required law enforcement to take particular steps when copying hard drives to ensure copied data was covered by search warrant.

In the 2004 case, federal agents who suspected ten baseball players of steroid use copied an Excel spreadsheet containing urine test results of the entire 104-player baseball team. The government attempted to use the spreadsheet as grounds to prosecute players who were not among the original suspects. The Ninth Circuit excluded the evidence, admonishing the government from turning a warranted search into a “fishing expedition.” Although the Ninth Circuit’s new ruling does not permit government fishing expeditions, it removes the specific requirements mandated by the 2004 opinion, deferring more to the judgment of law enforcement with respect to privacy protection.

With all the hurdles Apple would face, including patent prosecution and publicity challenges, we probably need not worry about the government accessing our heartbeat recordings anytime soon. But if the next MacBook Pro does come loaded with BigBrotherWare, I might finally have a reason to consider switching to a PC.

– Jordan Teague

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