"The right to be let alone is indeed the beginning of all freedom."

Somewhere, Justice William O. Douglas is puking his guts up. Why? Because privacy as we know it is a thing of the past. At least possibly.

Donald Kerr, Deputy Director of National Intelligence says that we, as Americans, need to simply rethink what we mean by privacy. It seems that the restraints created by the current notion of privacy are not working for the government. This comes in response to the debate centering around FISA, or the Foreign Intelligence Surveillance Act.

You see FISA was enacted to prescribe procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers.” This law has been in the news for years now in light of the Administration’s apparent reliance upon it to justify warrantless domestic wiretapping. That’s not really the point.

Mr. Kerr recently commented on the controversy by suggesting instead of trying to deal with the constitutional issues involved, that we as Americans should simply rethink our notion of privacy. Think about that for a second.

According to a report on CNN.com, Mr. Kerr thinks that privacy in this day and age should mean that government and business properly safeguard people’s private communications and financial information. I don’t know about you, but I’m not sure the word privacy means the same thing to Mr. Kerr that it does to me.

So Mr. Kerr wants us to define privacy as that information relating to an individual held in trust by the government. I get it. That way, when the government wants the information, they don’t have to, you know, go out and get it under constitutional restraints, because they’ve already got it. So it’s private because it’s been disclosed to the government? Isn’t there a name for this type of argument?

But that’s not all. Perhaps Justice Douglas could live with that. Maybe not. But combine the idea that apparently “privacy” is the new “disclosure” with an idea right out of 1984. And I don’t mean the year I was wearing parachute pants.

From Stephen Gustitis at The Defense Perspective comes a story that defendants might have to worry about what they think. It seems that if certain neuroscientists have their way, we might just have mandatory, court-ordered MRI lie detectors for our thoughts.

According to an article in The Stanford Daily, research is underway to determine how to hold people responsible for their thoughts. “Neuroscience has a number of applications to the law, mainly involving lie detection and personal responsibility for criminal behavior, which could raise serious ethical questions for judges and juries in the future.” No kidding. You think?

According to Hank Greely, a law professor, “A judge could conceivably issue a warrant on someone’s mind.” How is this possible, you ask? According to the article, “[c]urrent constitutional protections were not written in anticipation of advances in neuroscience and would not offer much defense against the aggressive use of neuroscience in trials. Greely argued that the First Amendment does not currently guarantee freedom of thought, and that the Fifth Amendment protection against self-incrimination only applies to testimony.”

So not only is today’s privacy not my grandfather’s privacy, but now I have to be worried about a judge issuing a search warrant for my client’s brain? Boy, these times are a-changing. I wonder what Justice Douglas would say about all of this this.