"Privacy is Not Dead—It's Inevitable"

From Boston Review:

The pace of technological change we have seen over the past fifteen years has been so breathtaking, so unrelenting, that it’s worth pausing to reflect on it for a moment. Fifteen years ago, our world was very different. Bill Clinton was President. The Red Sox had not won the World Series for almost a century. Mobile phones existed, but were little more than walkie-talkies with flip-tops. And the idea of total surveillance was unthinkable, a spectre of dystopian fiction and failed communist and fascist states from our grandparents’ time.

Fifteen years ago, our politics simply would not permit total surveillance, along the lines of the Stasi or J. Edgar Hoover’s COINTELPRO. The veterans of the cold war against communism and the hot war against fascism were still alive and vigilant. Surveillance was not only politically inconceivable but also technically impossible. Telephone metadata existed (including new forms of metadata for mobile phones), but the amount of data humans generated in their daily activities was vastly smaller.

What a difference fifteen years makes. Our technological and political environment has radically changed. The combination of the consumer phase of the digital revolution and the decrease in the political will to watch the watchers has meant that far more about us is digitized, much of it without any oversight or regulation. After the shock of 9/11, Congress authorized the Patriot Act, and many secret government programs (some legal, some not) operated under the radar.

As we move forward, it is essential that we figure out how to translate the values of free speech, privacy, due process, and equality into the new digital environment—what they mean in an era of big data and pervasive surveillance, and how to build them into the fabric of our digital society. We might decide to reject any idea of digital due process. Or we might embrace it fully. Most likely, we’ll end up somewhere in between. Regardless, privacy of some kind will be inevitable — but what those rights look like depends on a democratic environment.

Let’s consider first the inevitability of privacy. We often think of privacy as a factual state – how much do people know about me? As more and more information is collected and tracked, and fewer dimensions of human life remain opaque to observation, privacy would seem to be in retreat, perhaps irreversibly so. From that perspective, it is easy for commentators to suggest, glibly, that privacy is dead. Just this week, Thomas Friedman suggested in the New York Times that “privacy is over.” But there are other ways of thinking about privacy. Web sites and doctors’ offices have privacy policies about how they will keep your information private and confidential. In an information age, this way of understanding privacy—as keeping secrets rather than merely being secret—will become more important.  When we collect information about people, what happens to that information? Is its use unrestricted? Is its disclosure unrestricted? These areas will be regulated in one form or another.  Law will play a role, and if Congress is unable or unwilling to regulate, then leadership will come from elsewhere, whether the White House, the FTC, or foreign sources of law, like this month’s decision by a Spanish Court giving people a right to control how search engines report results about them. Globally-operating technology companies are bound by global rules, and European and Canadian regulators don’t buy the “death of privacy” fallacy....MORE