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Why Do We Care So Much About Privacy?

Why Do We Care So Much About Privacy?

Big Tech wants to exploit our personal data, and the government wants to keep tabs on us. But “privacy” isn’t what’s really at stake.

Amid ever-evolving technologies, the law is always playing catch-up.

Illustration by Seb Agresti

The reason you’ve been receiving a steady stream of privacy-policy updates from online services, some of which you may have forgotten you ever subscribed to, is that the European Union just enacted the General Data Protection Regulation, which gives users greater control over the information that online companies collect about them. Since the Internet is a global medium, many companies now need to adhere to the E.U. regulation.

How many of us are going to take the time to scroll through the new policies and change our data settings, though? We sign up to get the service, but we don’t give much thought to who might be storing our clicks or what they’re doing with our personal information. It is weird, at first, when our devices seem to “know” where we live or how old we are or what books we like or which brand of toothpaste we use. Then we grow to expect this familiarity, and even to like it. It makes the online world seem customized for us, and it cuts down on the time we need to map the route home or order something new to read. The machine anticipates what we want.

But, as it has become apparent in the past year, we don’t really know who is seeing our data or how they’re using it. Even the people whose business it is to know don’t know. When it came out that the consulting firm Cambridge Analytica had harvested the personal information of more than fifty million Facebook users and offered it to clients, including the Trump campaign, the Times’ lead consumer-technology writer published a column titled “I Downloaded the Information That Facebook Has on Me. Yikes.” He was astonished at how much of his personal data Facebook had stored and the long list of companies it had been sold to. Somehow, he had never thought to look into this before. How did he think Facebook became a five-hundred-and-sixty-billion-dollar company? It did so by devising the most successful system ever for compiling and purveying consumer data.

And data security wasn’t even an issue: Cambridge Analytica didn’t hack anyone. An academic researcher posted an online survey and invited people to participate by downloading an app. The app gave the researcher access not just to personal information in the participants’ Facebook accounts (which Facebook allows) but to the personal information of all their “friends” (which Facebook allowed at the time). Cambridge Analytica, which hired the researcher, was thus able to collect the personal data of Facebook users who had never downloaded the app. Facebook at first refused to characterize this as a security breach—all the information was legally accessed, although it was not supposed to be sold—and continues to insist that it has no plans to provide recompense.

Cambridge Analytica isn’t the only threat to digital privacy. The Supreme Court is set to decide the fate of Timothy Carpenter, who, in 2014, was convicted of participating in a series of armed robberies on the basis, in part, of records obtained by the police from his cell-phone company. These showed the location of the cell-phone towers his calls were routed through, and that information placed him near the scenes of the crimes. Carpenter was sentenced to a hundred and sixteen years in prison. The Court is being asked to rule on whether the collection of the cell-phone company’s records violated his constitutional rights.

The government’s position (argued before the Court last fall by Michael Dreeben, a Deputy Solicitor General, who is currently assisting the Mueller investigation) relies on what is known as the third-party doctrine. Police cannot listen in on your phone conversations without a warrant. But since Carpenter knowingly revealed his location to a third party, his cell-phone service provider, that information—called metadata—is not protected. It can be obtained with a court order, equivalent to a subpoena, which is served on the provider, not the customer. The third-party doctrine dates from a 1979 case, Smith v. Maryland, and it has been used to obtain, for example, suspects’ bank records.

The third-party doctrine is what made legal the use of a pen register, a device that records all outgoing and incoming calls, on the phones of Donald Trump’s lawyer Michael Cohen. Rather more consequentially, it was the legal justification for the National Security Agency’s collection of metadata for all the incoming and outgoing calls of every person in the United States between 2001 and 2015. You “gave” that information to your phone service, just as you gave your credit-card company information about where and when you bought your last iced latte and how much you paid for it. The government can obtain that information with minimal judicial oversight.

Meanwhile, of course, Alexa is listening. Last month, an Oregon couple’s domestic conversation (about hardwood floors, they said) was recorded by Echo, Amazon’s “smart speaker” for the home, which sent it as an audio file to one of the husband’s employees. Amazon called the event “an extremely rare occurrence”—that is, not a systemic security issue.

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The good that is said to sit at the nexus of these developments in technology, commerce, and the law is privacy. “It’s private! ” kids are always yelling at their parents and siblings, which suggests that there is something primal about the need for privacy, for secrecy, for hiding places and personal space. These are things we seem to want. But do we have a right to them?

In 1948, the District of Columbia, in an arrangement with Muzak, the company that sells background music for stores and hotel lobbies, began piping radio broadcasts into the city’s trolleys and buses. The broadcasts were mostly music, with some commercials and announcements, and were not loud enough to prevent riders from talking to one another. On the other hand, riders could not not hear them. Complaints were received, and a survey was duly commissioned. The survey found that ninety-two per cent of bus and trolley riders did not have a problem with the broadcasts. So they continued.

Two customers, however, chose to take a stand. They were Franklin Pollak and Guy Martin, and they happened to be lawyers. These gentlemen sued the city. Being compelled to listen to a radio program not of their choosing on a public bus, they maintained, represented an unlawful deprivation of liberty under the Constitution. The case made it all the way to the United States Supreme Court.

The Court handed down its decision in 1952. A bus, it said, is not like a home. It is a public space, and in a public space the public interest prevails. As long as the city government has the comfort, safety, and convenience of its riders at heart, it can run its transportation system any way it wants. Pollak and Martin had no more right to demand quiet on the bus than they had to tell the driver where to stop.

The vote was 7–1. One Justice, Felix Frankfurter, recused himself. Frankfurter explained that his own aversion to Muzak was so visceral—“my feelings are so strongly engaged as a victim,” he wrote—that he was incapable of attaining the degree of disinterestedness necessary to render a judgment. (This posture is pretty much Felix Frankfurter in a nutshell.)

The lone dissenter was William O. Douglas. Douglas was a judicial renegade, with little concern for precedent. “We write,” he began his dissent, “on a clean slate.” Finding no rule, he provided one. Freedom was the issue, he explained, and “the beginning of all freedom” is “the right to be let alone”—that is, the right to privacy. To Douglas, more was at stake than annoying background music. Forcing people to listen to the radio, he said, is a step on the road to totalitarianism. If you can tell people what to listen to, you can tell people what to think. “The right of privacy,” Douglas concluded, “is a powerful deterrent to any one who would control men’s minds.”

Douglas did not coin the phrase “the right to be let alone.” It appears in one of the most famous law-review articles ever written, “The Right to Privacy,” by Samuel Warren and Louis Brandeis, published in the Harvard Law Review in 1890. (Warren and Brandeis took it from an 1879 treatise on tort law.) And “The Right to Privacy” is where Sarah Igo begins “The Known Citizen” (Harvard), her mighty effort to tell the story of modern America as a story of anxieties about privacy.

Igo’s first book, “The Averaged American,” was a well-received study of how twentieth-century social researchers created the idea of a “mass public.” Her new effort has to be mighty because, as she admits at the start, privacy is a protean concept—“elastic” is the term she uses—and, once you start looking for it, it pops up almost everywhere. Every new technological, legal, and cultural development seems to have prompted someone to worry about the imminent death of privacy. In the nineteenth century, people were shocked by the introduction of postcards, which invited strangers to read your mail. Mail was supposed to be private.

The Muzak case is not in Igo’s book, but plenty else is. She takes on telegraphy, telephony, instantaneous photography (snapshots), dactyloscopy (fingerprinting), Social Security numbers, suburbanization, the Minnesota Multiphasic Personality Inventory, Fourth Amendment jurisprudence, abortion rights, gay liberation, human-subject research, the Family Educational Rights and Privacy Act, “60 Minutes,” Betty Ford, the 1973 PBS documentary “An American Family,” the Starr Report, the memoir craze, blogging, and social media. Igo is an intelligent interpreter of the facts, and her intelligence frequently leads her to the conclusion that “privacy” lacks any stable significance. Privacy is associated with liberty, but it is also associated with privilege (private roads and private sales), with confidentiality (private conversations), with nonconformity and dissent, with shame and embarrassment, with the deviant and the taboo (Igo does not go there), and with subterfuge and concealment.

Sometimes, as in Douglas’s dissent, privacy functions as a kind of default right when an injury has been inflicted and no other right seems to suit the case. Douglas got a second crack at applying his theory of privacy as a constitutional right in 1965, in the case of Griswold v. Connecticut. At issue was a Connecticut law that made the use of contraception a crime. “Specific guarantees in the Bill of Rights,” Douglas wrote for the Court, “have penumbras, formed by emanations from those guarantees that help give them life and substance.” The right to privacy was formed out of such emanations.

What places contraception beyond the state’s police powers—its right to pass laws to protect the health and welfare of its citizens? The answer, Douglas said, is something that predates the Constitution: the institution of marriage. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred,” he wrote. It is beyond politics and even beyond law. (Douglas, incidentally, was married four times.) Eight years later, Griswold was a key precedent in another case about reproductive rights, Roe v. Wade. “The right to privacy,” the Court said in that case, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Igo notes that often privacy is simply a weapon that comes to hand in social combat. People invoke their right to privacy when it serves their interests. This is obviously true of “fruit of the poisonous tree” arguments, as when defendants ask the court to throw out evidence obtained in an unauthorized search. But it’s also true when celebrities complain that their privacy is being invaded by photographers and gossip columnists. Reporters intrude on privacy in the name of the public’s “right to know,” and are outraged when asked to reveal their sources.

People are inconsistent about the kind of exposure they’ll tolerate. We don’t like to be fingerprinted by government agencies, a practice we associate with mug shots and state surveillance, but we happily hand our thumbprints over to Apple, which does God knows what with them. A requirement that every citizen carry an I.D. card seems un-American, but we all memorize our Social Security numbers and recite the last four digits pretty much any time we’re asked.

A lot of people considered reports about which videos Clarence Thomas rented to be relevant to the question of whether he was qualified to sit on the Supreme Court, and a lot of people hoped that someone would leak Donald Trump’s income-tax returns. But many of the same people were indignant about the publication of the Starr Report, on the Oval Office sexcapades of Bill Clinton. Sex is supposed to be private.

Privacy has value, in other words, and, as Igo points out, sometimes the value is realized by hoarding it and sometimes it’s realized by cashing it out. Once, it was thought that gay people were better off keeping their sexuality secret. Then it was decided that they were better off making their sexuality public, and, almost overnight, privacy became a sign of hypocrisy.

DMU Timestamp: November 09, 2018 23:10





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