Text Below reprinted from Privacy in the Age of Big Data, by Theresa Payton and Ted Claypoole, published by Rowman & Littlefield.
Although it seems that every day less people care about their privacy, the ability to maintain parts of your life as private remains crucial to our democracy, our economy, and our personal wellbeing. Many people expose their deepest thoughts and barest body parts every day, leading pundits to decry that privacy is passé. Other people suggest that the only people who would care if the government, the press, or even their neighbors are watching them are those people who are behaving badly.
These positions entirely miss the point of privacy. Privacy is not about embarrassment or bad behavior, privacy is about choice. In many cases people who expose their ideas or their derrieres online choose to do so. In those cases where people were exposed through someone else’s choice, such as a reporter, the people exposed felt that their privacy was violated. Similarly, when the government watches your every move, sooner or later it is likely to find something objectionable.
Over time, the government and society change their definitions of what is acceptable and what is not, so staying on the right side of law and society’s standards is not always as easy as it seems. Recently a car insurance company has been advertising a service where it provides a small monitor to record and analyze the way that its insurance customers drive every second that the customer is in the car. The company markets this technology as a “cool” advance that allows good drivers to benefit from reduced rates. However, the company never promises to use consistent standards for what it considers “good driving”, it never promises in its commercials not to turn its customers in to the police for speeding or running red lights or driving in restricted areas – all actions that could now be recorded and analyzed. The company never promises that the device’s information will not be used against a customer in a trial following an auto accident, by the other driver, or by the insurance company itself. The company doesn’t tell you if it will find one incident of questionable driving behavior – maybe during the time the customer’s car was loaned to her brother – and make broad generalizations about the customer’s driving habits that affect her insurance prices, her ability to be insured at all, or even her freedom if the technology decides she was driving while impaired. In short, there are dozens of unexplained downsides likely to arise from a technology that watches our every move, even if the technology only reports the results to your insurance company initially.
In this book we do not attempt to provide a definitive interpretation of the nebulous concept of privacy. However, we address the importance of maintaining your choices for what you wish to keep private. Your home, your body, your thoughts and beliefs are all within the control of their owner, and easier to hold private. Your finances, your relationships, and your sexuality are areas that most of us would consider private, although additional parties – your bank, your best friend, your sexual partner — hold information concerning these private matters, so privacy is expected, though absolute control is not possible. You may travel places on the public streets and therefore not expect absolute privacy, but still expect to be relatively anonymous either in a crowd, or a place where no one knows you.
In this case, you would lose a measure of independence if everyone knew you everywhere you went, and could tie together information about this trip with other information they knew about your shopping habits, your family history, and whose company you enjoy. Once your movements in space are recorded and added into the general base of knowledge without your permission, your freedom is limited. With the pervasive technology discussed in the following chapters, loss of anonymity is rapidly increasing and the basic loss of ability to keep secrets is in jeopardy.
Privacy Protects Freedom of Choice
When your privacy is protected, you are free to choose how much of your sensitive information to expose, to whom you will expose it, and, in some cases, how others can use the information. Philosophers such as John Locke thought that private information is a type of property, and, as with other property, we have the choice about how it can be used and whether to profit from it.
When you have no control over your private information, you have less freedom of choice. When a person understands that everyone will hear his opinion, then his opinion tends to be expressed in a way that is more acceptable to his neighbors, his boss, or the local police. If your living room is being watched by video, you are less likely to walk around in your underwear or eat that block of cheddar on the couch in front of the television, even if that’s the way you like to spend an evening.
You might refrain from arguing with your spouse, kids, or parents if you believe people are watching you. We all behave differently when we know we are being watched and listened to, and the resulting change in behavior is simply a loss of freedom – the freedom to behave in a private and comfortable fashion; the freedom to allow the less socially-careful branches of our personalities to flower. Loss of privacy reduces the spectrum of choices we can make about the most important aspects of our lives.
By providing a broader range of choices, and by freeing our choices from immediate review and censure from society, privacy enables us to be creative and to make decisions about ourselves that are outside the mainstream. Privacy grants us the room to be as creative and thought-provoking as we want to be. British scholar and law dean Timothy Macklem succinctly argues that the “isolating shield of privacy enables people to develop and exchange ideas, or to foster and share activities, that the presence or even awareness of other people might stifle. For better and for worse, then, privacy is a sponsor and guardian to the creative and the subversive.”[i]
Our economy thrives on creativity and new thinking, which in turn are nurtured by privacy of information. Without this privacy, the pace of invention and change slows because our ability to stay ahead of competitors sputters. Privacy is an important lubricant of free thought and free enterprise.
Privacy Secures our Human Dignity
The wrongheaded notion that privacy is only important for people who are misbehaving ignores the fundamental aspect of privacy as protector of our essential human dignity. Civilized people tend to shield from view the activities and attributes that most remind us of our animal natures. Eating in public is taboo in many societies and nearly every society contains unwritten rules about what is an acceptable manner of eating around other people. While some societies honor the naked body, people in the Western world cover themselves at all times in public, and can be arrested in the United States for doing otherwise.
All animals must dispose of bodily waste, and people in the modern age find the act to be private and prefer to engage in it far from the public eye. Likewise, the entirely natural act of childbirth and the sexual acts that lead to it, are considered to be personal and sensitive matters by our society, and basic human dignity requires that people be allowed to choose privacy in these matters. None of these subjects necessarily arouses a question of whether a person is behaving properly, but polite and civilized behavior dictates that people are allowed privacy in acting naturally. Privacy is important for maintaining our status as respected members of society.
Many intrusions on privacy can harm our dignity. In a landmark law review article on the nature of privacy under the law, Professor Edward Bloustein wrote in 1964 about a famous American court case limiting press access:
“When a newspaper publishes a picture of a newborn deformed child, its parents are not disturbed about any possible loss of reputation as a result. They are rather mortified and insulted that the world should be witness to their private tragedy. The hospital and the newspaper have no right to intrude in this manner upon a private life. . . . The wrong is in replacing personal anonymity by notoriety, in turning a private life into a public spectacle.”[ii]
Professor Bloustein defined this act as an imposition upon and an affront to the plaintiff’s human dignity. Fifty years later, the concept of privacy as a protector of personal dignity seems somehow quaint, as game show contestants fight to heap more humiliation upon each other, and an entire class of reality television is based on exposing the ignorance and boorish behavior of happily compliant citizens. But this is a choice that these people make to grab their fifteen minutes of fame, maybe more, as some profit handsomely by exposing themselves to ridicule. Just because television producers can find people who will trade their dignity for silver or spotlights this does not mean that dignity isn’t important to the vast majority of us, or that privacy choices should be limited in any way.
Privacy is important for protecting personal dignity, not only because it shields our animal natures and our personal misfortunes from publicity. Privacy also allows us to think, talk and behave as we like in seclusion, but still be treated with basic respect accorded all members of our society. If everyone knew how each person behaved in her personal “down time”, then their understanding of a person who drools in her sleep, is addicted to daytime soap operas, or can’t cook could tarnish the professional and personal respect that they have toward her.
No human is perfect, and it can be considered pathological to try too hard to be perfect. We all have our foibles and eccentricities. It seems that the only people who are not somehow strange are the people you don’t know very well. But we try to seem “normal” in the ways that are important to each of us, and we present a face to the public that shows our best side. Privacy allows us the dignity to present ourselves as we want the world to see us, the freedom to make mistakes, be clumsy, and display socially-unattractive behavior without fear of judgment.
In 1987, President Reagan nominated Judge Robert Bork for the Supreme Court seat vacated by Justice Lewis Powell’s retirement. Bork was a controversial figure with strong views on nearly all legal topics, and his nomination engendered much opposition. During the battle for his confirmation, Judge Bork’s video rental history was leaked to the press and used as fodder by some reporters.
While the video history did not seem to affect the confirmation hearings, its introduction into the public consciousness lead directly to one of the first Federal privacy laws in the United States, the Video Privacy Protection Act of 1988. In this act, Congress recognized that video rental databases contain private records that, if widely publicized, could negatively affect the ways that people viewed each other.
In a rare quick act of protection of human dignity, Congress determined that information about the videos that you watch is nobody’s business. The introduction of reading material, television viewing history, video rentals, or Internet surfing records into a public debate about a political figure allows the public to see a private side that is likely to be completely irrelevant to a person’s performance in office, and allows the public to chuckle at the silly, stupid, or offensive material a public figure consumes in private.
We are afforded less dignity and basic respect when people know the human foibles and odd preferences of our private lives. Privacy in the personal space allows us to maintain that core level of respect that all of us deserve.
Privacy Protects People from Coercion
Why would someone want to intrude on your privacy? Simply because the more he knows about you, the more he can influence your decisions. We have described privacy as a preserver of choices, and therefore freedom. The more choices you have, the freer you are to live your life in the way you prefer. Limiting that freedom can drive you to make the choices that someone else wants you to make.
The most severe example of this coercion through limited privacy is the police state of East Germany during the Cold War. Some estimates claim that the Stasi, the East German secret police, had over half a million informers within the state itself. Informants included many children and teens who were expected to inform on the activities of their parents and teachers, so that no citizen of the East German state could expect privacy from government snooping in any aspect of their lives.
This knowledge allowed the secret police and the government media to coerce the “appropriate” decisions from all citizens on the important aspects of political and economic life. East German citizens were afraid to express opinions or take actions that the government would find offensive, so they toed the party line or suffered serious consequences. Government in a police state first strips its citizens of privacy so that it may exert controlling influence on the large and small decisions of its citizens. Complete destruction of privacy leads to coercion on personal choices.
This ability to influence personal choices need not be so dramatic as to destroy your privacy. For example, a company that knows much about your private choices can influence your future choices. An apparently benign example of this influence is the subtle pull of Amazon.com’s recommendations after you make a purchase. You bought a book about kite-flying and then you are presented with a list of similar books on the same topic that might appeal to you. Have you considered the new music by that singer whose previous three sets of mp3s are in your collection? Amazon fully expects that it will be rewarded for making these suggestions by your purchase of additional items from its store.
[i] Timothy Macklem, Independence of Mind 36 (2006).
[ii] Privacy As An Aspect of Human Dignity: An Answer To Dean Prosser, Edward Bloustein, 39 N.Y.U.L. Rev. 962, 1964, referencing Bazemore v. Savannah Hospital, 171 Georgia 257(1930) and Douglas v. Stokes, 149 Kentucky 506 (1912).