Privacy Degree Zero
We all know that reading medical books can make the world appear awash in disease. Is the same true of books on privacy? Was it because Daniel Solove's Understanding Privacy was sitting on my desk during the winter that the news seemed awash with stories about challenges to privacy? No sooner were the private "Climategate" e-mails splashed across front pages than the Guardian published a secret climate agreement among the rich nations. Facebook, not for the first time, embarrassed itself by changing its privacy settings--perhaps better called publicity settings--with minimal notification to its members. If that weren't enough, we learned that Yahoo was selling details of subscribers' accounts and Sprint was releasing location data of its cellphone users. (For the latter, the police only had to ask for the data, and they did so some 8 million times.) Showing evenhandedness in whom they investigate, a police department in Southern California sought permission to read private text messages on the pagers of its officers. Meanwhile, the Department of Homeland Security was once again caught gathering and circulating information on innocuous citizens.
My paranoia did not ease during a trip to England, where closed-circuit television cameras pretty much eliminate the enjoyment of privacy in public space. Signs forbidding hooded sweatshirts were not, I discovered, a fashion statement but a means to ensure a clean headshot for the camera. Then there's the London Congestion Charge. Admirably, it has reduced traffic and pollution and promoted public transport. It has also blanketed the city with cameras. These monitor travel aboveground, while the convenient Oyster travel card tracks Tube and rail travelers underground. You can barely move in London without being recorded. "Locational privacy" has all but disappeared, as my hosts learned when they received a £12 ($20) fine for straying into a bus lane. The summons arrived with evidence--photographs of the car moving in the forbidden zone shot from one of London Transport's ubiquitous cameras.
Privacy International rates Britain among the "endemic surveillance societies," while a candid report from the House of Lords in 2009 concluded that "successive UK governments have gradually constructed one of the most extensive and technologically advanced surveillance systems." Surveillance in England grew dramatically following the Irish Republican Army's attempt to assassinate Margaret Thatcher in Brighton twenty-five years ago and the related IRA "mainland" campaign. Before we get too complacent, Privacy International gave the same dismal rating to the United States. If there is a difference, it may be that in Britain, no one can doubt that they are under surveillance. Here, such thoughts can still be dismissed as paranoia.
Should we care? In 1999 Scott McNealy, co-founder of Sun Microsystems, famously declared, "You have zero privacy.... Get over it!" During my paranoid winter, Google CEO Eric Schmidt offered a creepier argument in a CNBC interview: "If you have something you don't want anyone to know, maybe you shouldn't be doing it in the first place." These reprimands are self-serving: Sun Microsystems and Google have an interest in persuading us to accept their intrusiveness and portraying resistance as, if not futile, then a matter of our wrongs, not of our rights. And whatever these private companies say about personal privacy, they are vigilant about guarding the corporate variety. I doubt Schmidt would believe that protecting Google's search and ranking strategies from prying eyes is a sign of Google doing something it "shouldn't be doing in the first place." Most of us probably would believe, however, that Yahoo shouldn't be selling its users' private information in the first place. But when this came to light, Yahoo effortlessly deflected complaints by denouncing the violation of its trade secrets.
If there's comfort in any of this, it may be that eleven years after McNealy's comment, a statement like Schmidt's can still shock. Privacy is something we haven't gotten over. For that reason, there's comfort too in David Solove's thoughtful examination of the concept of privacy: what it is, why it seems forever under threat and why we continue to fight for it. Solove's approach is primarily a legal one. It is not, though, legalistic. He is determined to avoid the trap of trying to define privacy. This only leads, he argues, to "disarray." He makes his point by surveying some of the standard accounts of the principle, starting with the claim of Samuel Warren and Louis Brandeis in the Harvard Law Review in 1890 that privacy is the "right to be let alone." This definition, he argues, "fails to provide much guidance about what privacy entails." More generally, he shows not that definitions are necessarily bad but that they don't facilitate negotiation between privacy and other rights. Our intuitive understanding of the Fourth, Fifth and Fourteenth Amendments, after all, tends to clash with our sense of the First. The right to conceal confronts the right to know and to reveal, and vice versa.
In response to top-down definitions, Solove offers what he calls a bottom-up approach: he traces the different things that we call privacy, searching for family resemblances and trying to understand "the origin of the desire for privacy in particular situations." In short, his is a pragmatic, contextual approach that tries to understand privacy in practice rather than in theory--even if that practice is primarily legal practice. His approach allows him to consider how our ideas of privacy--and the laws addressing it--change over time. Some of these changes are evident in the ways privacy is discussed. Ideas of "invasion," "breach" and even "trespass" seem oddly antiquated, locating privacy in a particular place, usually the home (which is then compared to a castle). The shift to a more personal idea of privacy is conveyed by words such as "violation" and "assault." As the philosopher Luciano Floridi argues, violations of privacy now seem closer to kidnapping than trespassing. Yet even the personal has been pushed to the background in the digital age: terms like "theft," "appropriation" and "leak" identify information, almost impersonally, as an object that is itself at risk of being violated.
Such shifts often stem from changes in technology that disrupt our expectations of privacy. In 1838 Samuel Morse sent a letter to Congress listing the virtues of his electronic telegraph. It offered, Morse claimed, the "fullest and most precise information" and a "record...in a permanent manner." Furthermore, he added, perhaps as an afterthought, that its "communications are secret." Henry James explored a glitch in Morse's claim in his story "In the Cage." A man and a woman arrange their affair by telegraph, passing their intimate arrangements to the "girl" in the telegraph cage, almost as if she "had no more feeling than a letter-box." When a crisis occurs, because she has "tracked and stored" their "secrets and love-affairs," the girl is able to assure the couple, paradoxically, that their assignations have not been detected.
Warren and Brandeis wrote about the right to privacy, Solove reminds us, in the context of the new, intrusive technology of snapshot photography, which enabled newspapers to make and publish photos of people without their consent. Much as Warren, Brandeis and James were marking changes in our assumptions about the privacy of communication, so are McNealy and Schmidt. Like Morse, they see no tension. Unlike him, they promise no secrecy. They aren't even offering a compromise between ease and secrecy. Rather, they suggest that everyone's privacy is compromised. Get over it.
Haven't the "digital natives" done just that? Whenever an adult is flustered by new technology, it has become commonplace to say, "The kids are hip to this stuff." That excuses a lot of poor technology. But it also makes it hard to argue that young people are unaware of what they are doing when they post indiscreet photographs on Flickr or confuse genuine friendship with social networking. Instead, we are told they have gotten beyond privacy. The occasions of my teenage angst are distant, but they are not much less painful for that. So it is hard to believe that today's teenagers have magically shed their sense of mortification simply by acquiring an iPhone and a Facebook account. If we learn anything in becoming adults, it may be to consider the night before what the consequences will feel like the morning after. The teenage years remain a time when it is often hard to weigh consequences in advance but also the time when, in retrospect, consequences are felt most deeply. If only because of the way they fence off Facebook pages from their parents, young adults, it seems, are keenly aware of privacy and surveillance, and resent the unexpected exposure that Facebook's capricious changes can subject them to.
Why do they care, and why should we? As we experiment with our identities--something particularly important for teenagers--privacy offers the promise of an escape clause. It allows us to avoid being stigmatized through life for failed experiments, poor choices and poor life chances. The nineteenth-century European novel offered immigration to America as the ultimate escape clause and second chance. Similarly, privacy is a passport that allows for emigration from the dead weight of our past. More significant, as Solove notes in one of the most important passages in the book, such experimentation has not just individual but social consequences, as people resist society's pressures to conform. He quotes an insightful judgment from the Supreme Court of India ruling that "individuals need a place of sanctuary where they can be free from social control...can drop the mask, desist for a while from projecting to the world the image...that may reflect the values of their peers rather than the realities of their natures." As the House of Lords report on surveillance explained, "Privacy and the principle of restraint in the use of surveillance and data" are "central to individual freedom."
This is not simply an individual matter. Pushing against stifling social norms is a way of reinventing society, a process that can begin only outside a society's persistent gaze. (Transforming figures in the nineteenth-century novel often begin by moving from the claustrophobia of the village to the useful anonymity of the city.) Of course, not all resistance to norms is good; the same privacy that provides space for beneficial social experiments provides cover for criminal ones. But in dealing with the latter, it should be up to the law to justify the intrusions of surveillance rather than up to us to surrender our privacy. Given the praise lavished on the inventiveness and boundary-breaking of companies like Sun Microsystems and Google, it is notable how conservative their chairmen's views of society are. They reserve the space and secrecy necessary for reinvention for their private businesses alone.
Solove's legal view of these complex issues is insightful, but it raises questions of jurisdiction. Though Solove aspires to an international perspective, Understanding Privacy is rooted in the United States and reflects its distinctive view of privacy. James, again, noted an American characteristic when, returning after twenty-one years abroad, he commented on the absence of penetralia--places to hide away. Today, visitors are still struck by our open-plan houses, unfenced garden lawns that flow from one house to the next and "open-door" office policies. Certainly, these can be signs of admirable openness. But they are also signs of a society that is suspicious of people who seek privacy. This suspicion is perhaps a vestige of a Puritan assumption that what went on behind closed doors were primarily matters of sin and shame, deserving public scrutiny and stigma.
There are other distinctive features of the American attitude toward privacy. Here the general view tends to be deeply suspicious of government and much more sanguine about private corporations. (The Roberts Supreme Court epitomizes this view.) In the healthcare debate, much more has been made about the government possibly prying into our health records in the future than about private insurers doing so in the present. Europeans, by contrast, tend to be far more suspicious of corporations and more deferential to government--deference that, as I have suggested, is particularly disturbing in the case of British surveillance. The effects of 9/11 have lessened the difference. US citizens have been persuaded to accept, in the name of pursuing the "bad guys," surveillance of us all.
The contrasts suggest to me that, while we should continue to resist the intrusiveness of government in the American way, we would be wise to import a little more suspicion of corporations from the other side of the Atlantic. One reason is that companies are not only collecting information about us but also processing it in ways that lead to "decisional interference." Search engines make money by matching our desire to buy with someone else's interest in selling. They are coming to know so much about us, however, that they are increasingly in the position to shape our desires in the interests of their paying customers.
Not long ago, Schmidt wrote cheerfully in the Wall Street Journal about the new digital devices on which we are all expected to be reading soon. "The compact device in my hand delivers me the world, one news story at a time," he wrote. "Even better," he went on, "the device knows who I am, what I like, and what I have already read." It may well know. The question is, Who else is it telling?
That question raises concerns not only about what and how Google is selling us but also the cozy relationship between government and private corporations, for corporations increasingly gather private information that the government wants. Sometimes they are directly complicit. AT&T provided a handy room at the heart of its network for the National Security Agency to monitor huge portions of Internet and telephone communications. Yahoo and Sprint have found ready buyers in government agencies for the data they accrue. Google has promised not to surrender its knowledge of what we read without a subpoena. But, as the Electronic Frontier Foundation (EFF) has pointed out, a subpoena is a very low barrier to entry, because court rules may permit a lawyer to issue a subpoena without approval from a judge.
If we follow McNealy and Schmidt, our only choice seems to be between behaving ourselves--and behaving ourselves better. Because she sees "the balance between secrecy and disclosure [as] an individual preference," Esther Dyson, a former chair of the EFF, suggests that people be given "the tools to control the use and spread of their data." But this protection reduces privacy to a matter of individual preference and personal virtue. If nothing else, Solove shows that privacy is very hard to understand and hard to engage on our own. We readily surrender information about ourselves to search engines and retailers because we get an immediate and tangible return--better searches, Facebook exposure, a sought-after purchase, a frequent-buyer card. The consequences of that surrender--as snippets of information are aggregated with stuff we didn't know the retailers and search engines had on us, and passed along to people we didn't know were interested in us--are far less tangible and no less difficult to understand. While we have to retain the concept of privacy and not "get over it," and must also, as Solove's approach reminds us, demand that the courts protect us from those who would take our privacy, we should complement these efforts with some more institutional arrangements of the sort enjoyed by Europeans, as a result of their different perspective on privacy. These include the European Data Protection Directive--which gives us the right to inspect and correct information gathered by corporations and insists that those corporations keep what they know of us secure--and the European Court of Human Rights. Then there are the national agencies such as the Commission Nationale de l'Informatique et des Libertés in France and the Information Commissioner's Office in Britain.
Undoubtedly these institutions have their faults. Given the erosion of privacy in Britain, the Information Commissioner's Office seems regrettably toothless. The right response, though, is not to succumb to the bumper-sticker claims of McNealy and Schmidt or the individualist-libertarian assumptions of other digerati but to reinforce such agencies and rely on them to help us understand and protect privacy in all its complexities. As with corporate competition, where European rules have tamed some US giants (Microsoft and Intel among them); as with environmental regulation, where California can raise standards across the country; and as with war crimes, where national judges can put the fear of traveling into powerful politicians who are immune in their own countries, so with privacy. That is, when we can't stop organizations from appropriating our private information and moving it around the world, it will help to have some distinctly aggressive local jurisdictions here and abroad hold those moving the data accountable to the strongest, and not the weakest, link of our defenses.