A few months back we wrote a post asking readers how much privacy they would sacrifice to save money, trying to get a feel for the value judgements of DQYDJ readers on the common tradeoff of privacy with security and convenience. Today we take up the cause of privacy and discuss how privacy matters.
To me, the number of people who commented they weren’t very concerned with privacy in our last article was a bit of a surprise – and recent news events inspired me to follow that piece up with these 4,100 words on the topic of privacy in America.
Privacy: The Legal Tradition
Some folks take that to mean there is no ‘right to privacy’ in the United States. Not so – the Constitutional interpretation of the Supreme Court is the actual law of the land. This particular right had been assumed for a quite a while, but it wasn’t until Griswold v. Connecticut in 1965 that the right was ever enumerated by the court. “Penumbras” and “emanations” aside, concurring opinions spelled out that the right to peaceable association (part of the First), the Ninth Amendment (stating that enumerated rights do not make unstated rights invalid), and the due process clause in the Fourteenth Amendment are actually winking at a Right to Privacy.
That legal tradition, most famously, was a key part of the majority decision in the landmark abortion case, Roe v Wade.
As a line of legal reasoning, the genesis of the Privacy Movement can actually be traced back to a single paper, written by Samuel Warren and William Brandeis in 1890. The Right to Privacy was an argument, in essence, of an individual’s right to be left alone; call it ‘freedom from harassment’.
The Right to Privacy isn’t the only legal construct dealing with privacy and privileged information, of course. The Fifth Amendment, the right to keep self-incriminating information private, is probably the most well-known. However, there are also other rights of relevance here (that we spelled out back in 2009!) – Priest-Penitent, Spousal Privilege, Attorney-Client Privilege, and Physician-Patient Confidentiality are all legal concepts in the United States.
It’s not just in criminal proceedings where privacy matters and confidentiality is important – Miranda warnings remind people well before criminal proceedings even begin that they don’t have to say anything without an attorney present, and State Secrets detail the classification of secrets by the government (“We’re on a need-to-know basis… and you don’t need to know!”). Trade secrets detail ‘classified’ company information. Traditions of an expectation of privacy detail where a reasonable person would expect they are not being observed (read that for an interesting legal diversion which spells out exactly what you can do in your ‘curtilage‘ versus what you can do in your back yard).
So, yes, the legal tradition of privacy is long… and the definition is anything but common sense. The main takeaway here is that privacy is something our country has agonized about for hundreds of years, and an increased ability to observe is only going to make the entire subject more complex.
Why Would Someone Think Privacy Matters?
Okay, we’ve listed the “what”s and the “when”s and some of the “who”s, but how about a quick “why”? The reasons for wanting privacy are numerous, but let’s detail a few reasons why people may want to keep certain aspects of their lives private:
1. Fear of Reprisal
The American tradition of protection from intimidation started even before America did. Some of the most well known examples of pseudonyms in American literary tradition date back to pre-Revolutionary War days, and immediately after the Constitution’s ratification (see: Federalist and Anti-Federalist papers).
Why was there such a strong tradition of pseudonyms in such a violent time? Well, the fear of hanging certainly inspired a few of those folks to keep their names private! Great Britain didn’t appreciate all the fomenting of revolution going on, so keeping one’s identity private was a good way to keep your head connected to your shoulders.
We live in a much safer country, nowadays, as ‘killing inconvenient speakers’ is at an all-time low. There are other ways of intimidating people into shutting up – legal threats, blackmail, time-wasting, violence, financial repercussions, and counter-aggression (such as “making them look crazy”) all come to mind. Witness the interesting crypto-currency Bitcoin’s pseudonymous creator Satoshi Nakamoto. Fearing aggression from angry politicians in… well, every country in the world with a currency, he felt Bitcoins were best granted to the land by an pseudonymous benefactor.
Some explicitly dangerous speech is known as whistleblowing. A whistleblower is a person with insider knowledge of a crime, problem, coverup, legal sidestep, or abuse of privilege who speaks out and tries to warn someone exterior to the situation. Whistleblowers have great reasons to fear for their safety – physical or otherwise. By definition, whistleblowing exposes an embarrassing or illegal situation that a stakeholder does not want to get out.
Whistleblowing has an incredibly dangerous history, which is why it’s very important for people to stay vigilant. In the United States, government has a hate/hate relationship with whistleblowers – or, at least the Executive Branch does. Deep Throat, Bradley Manning, and the mole at the center of the AP Phone tapping investigation are considered whistleblowers to some… traitors to others. In the case of Manning and the AP Phone mole, they explicitly violated one of the legal privacy protections we spoke of above – state secrets. The United States Government has to walk a particularly fine line here… politically, Governments want to appear safe to Whistleblowers, even if their interest demands they make it hard. It’s hard to toe the line. (Editor: we first penned this article before the Edward Snowden disclosures, but his actions also speak to similar topics)
And why do they have to bother? Sadly, because Governments in the past have been even more hostile to whistleblowers. The ultimate sad example is the People’s Republic of China’s campaign to flush out dissenters – known in the West today as the “Hundred Flowers Campaign“. In it, Communist Party Chairman Mao Zedong encouraged everyone with complaints about his policies to report their critiques. The letters and dissents start pouring in, and soon (some would say, ‘predictably’ here) Zedong reversed the policy and imprisoned (or worse…) the dissidents.
Yes, I’d say that political philosophy and evidence of wrongdoing have historically been decent things to keep on the down-low, wouldn’t you?
So privacy matters when danger is involved, got it. Let’s delve a bit more into the legal aspect.
This one deserves a special heading. The very laws which ostensibly protect people from false speech can be used to chill permitted speech when the law itself becomes a threat. It is said that “truth is the ultimate defense against a libel charge” (or slander)… but a large company can chill lots of defense by threatening lawsuits to every detractor. The government can chill whistleblowers by aggressively pursuing leaks or by threatening journalists. Truth is, not everyone wants to spend time and money defending themselves legally – even if they privately believe that what they said was correct.
And how that relates to the privacy topic? You’ll note that the number of anonymous comments goes up on any controversial article, especially if people are stating something embarrassing to someone or some company (or government). Closely related to whistleblowing defense, chilling effects are an incredibly important thing for people who care about civil liberties to keep an eye on.
And to those of you who doubt legal threats alone can cause chill activists and whistleblowers… one only has to go back to the ridiculous prosecutorial overreach in the tragic case of Aaron Schwartz. Or, if you prefer, read arguments about tort reform.
2. Sensitive and Embarrassing Topics
It may seem like an obvious point, but if ‘privacy’ involves the right to be left alone, that should also mean people who don’t want certain things known about themselves can keep those private. Let’s list a few (by no means are these the only ones).
Human sexuality truly runs the gamut of preferences, and no one can possibly know every sexual preference out there.
Consider the topic of fetishes. Fetishism and partialism describe sexual arousal to objects, body parts, and situations. Since that describes basically every preference out there, that means that every post-pubescent human has preferences fitting into one of those categories. Even though no one is unique, these are also things people generally don’t want to share with many people… and this is a legitimate area of concern, because a number of people have revealed those preferences to private companies (want an example? Google Search.)
Fetishes aren’t the only thing people want to keep confined to select company. That company itself also might be something people want to keep quiet. Until recently, anyone who wasn’t in a two-person heterosexual relationship was outside the perceived norm. That is, of course, not the only form of relationship – Gay Marriage is the obvious counterpoint to that, and now is legal in America. It’s also historically been taboo to stay single past a certain age – but the decline in traditional marriage and the acceptance of different forms of relationships in general have eroded the stigmas.
The country has come a long way since our Puritan roots, but there are still some forms of relationships that are a bit outside of the mainstream. In 2013, polygamy and polygyny come to mind, as do open relationships in general, swinging, and multiple partners as a category. If someone is in a non-traditional relationship, they have, in my opinion, the right to share the details with only the people they choose.
Health is also an extremely sensitive topic for many people. The various conditions that people can have can be embarrassing, especially when those conditions are revealed to a new person.
This isn’t just conditions of a sexual nature, although there are a huge number of sexually-related health issues that are worthy of privacy. Erectile dysfunction, infertility, and STD status aren’t generally things you want people to know without a reason. Other sexual topics you might only want to reveal to specific people – rape, sexual harassment, pregnancy treatments and miscarriages come to mind. The first “Right to Privacy” case listed above even dealt with condoms used by couples in Connecticut – it’s just none of the State’s business.
This might even apply to doctors! Should a dentist know about rape? Does an optometrist need to know about STDs?
There are plenty of potentially sensitive health conditions that deal with the other 95% of the human body, too – rashes, dandruff, and acne in various places… to name but a few. There are even hundreds of chronic diseases where suffering might not be readily apparent to an observer. Can you blame people for not wanting to reveal their Diabetes? Would you want to explain your Sjögren’s Syndrome to someone without having planned the conversation yourself?
Hopefully it’s not controversial for me to say that finances are a particularly sensitive topic.
Let’s start with a problem you might want to have – more cash than the average! Our friend Sam at Financial Samurai has the right idea – keeping your wealth and income low key is a good way to avoid contempt from others. Consider movements like Occupy Wall Street. They explicitly targeted people who make in the top 1% of income… even though the people in that bracket got there by following vastly different paths!
And it’s not just angry, anonymous mobs that people of higher-than-average means might want to avoid. That’s right – I’m talking about friends and family. It’s possible that exposing your net worth too widely might make you the target of unwelcome advances… or even unwelcome comments and attitude from those close to you. You might think I’m going to toss an Ebenezer Scrooge quote in here… but I’m dead serious. Unpaid loans between friends can cause massive amounts of resentment, and that situation will sometimes even end friendships. And how many stories have we heard of “friends and family coming out of the woodwork” when someone wins the lottery? Even worse, how many people have been burglarized when they report to the world they are going on vacation (perhaps months after discussing their gold or jewelry collections)?
Similar considerations apply to not having a lot of money, or (alternatively) having a lot of debt. If you find yourself in that situation, you might fear people who know the truth avoiding you, thinking a certain way about you, or even making comments. “Not a true friend”? Maybe so, but family and co-workers also come to mind… it’s easier to drop a fake friend than to switch employers.
Truth is, there is a strong tradition in the United States of not revealing one’s income. Now, some bloggers obviously discount everything I just wrote – they give us the financial equivalent of microscope slides on their finances… everything from income to debts to assets to earning potential. Still, it’s safe to say that even amongst bloggers that mind-frame is a bit out of the mainstream, and most of us agree privacy matters.
The United States guarantees freedom of religion, and promises a separation between Church and State. One of the ways they tried to guarantee that separation is to not sanction a state religion, à la Anglicanism in the Motherland.
Soft Cell (and a number of covering bands since!) once sang, “And you think love is to pray. But I’m sorry I don’t pray that way.” Truth is, people subscribe to a ton of different religions in this country. Some of us don’t… according to Pew, 10.3% of us are either Atheist, Agnostic, or ‘Unaffiliated and Secular’. A further 5.8% of us are ‘Religious and Unaffiliated’ (I’ve heard some people in this category describe themselves as ‘spiritual’). And 0.8% of us? We either don’t know… or don’t want to tell Pew.
Let’s face it- even in a country with no stated official religions, there is still unease between some religions. Some religions Americans aren’t as familiar with give people a bit of unease.
For better or worse, religion can be a private matter – and we should let people worship however they choose. And, yes, we shouldn’t force them to explain why or how they do it.
3. Competitive Advantage
Privacy matters a ton in the business world: there are many business and financial reasons for privacy too, most often because those strategies make it easy to make money!
We already covered the legal aspects of trade secrets, where companies will police secret information they use to make products or provide services… everything from manufacturing formulas to flavors in soda or baked beans. Contrast this with patents, trademarks, and copyright (and, unfortunately… clones, knock-offs and counterfeits) where there are legal protections on something in the public domain. Companies want privacy and don’t want to reveal secrets which would help their competitors catch up.
There are plenty of reasons individuals would want privacy as well. One obvious example? Day trading strategies. Think about it – you often see people publish their strategy on how to trade… but just making information public can have consequences! Like the infamous example of the Price to Sales ratio, once something is in the public domain it’s possible for any existing edge to be arbitraged away. All of the details that go into a person or firm’s money making strategies are worthy of keeping private. The SEC has even weighed in on the investment front – the public’s right to know trumps privacy once beneficial ownership passes 5% of a security. Many market whales avoid acquiring more than 5% of firms to keep strategies secret.
I’m sure you can think of more examples in this category, but yes… I would not want a person or company to be forced to give up their competitive advantage due to a lack of privacy.
4. The Right to Be Left Alone
Those very words have come to summarize the entire battle for privacy… and even though I’m listing it last, don’t take that as a value judgement.
Remember the Do Not Call registry? Yep – plucked straight from the pages of the privacy debates, especially the right to be free from harassment (although it is ironic you have to opt out of harassment, haha). There are similar mechanisms to avoid credit card offers and direct mail… and in the internet age, software that blocks ads and services that block unwanted emails are ubiquitous.
Our increasingly technologically dictated lives have inspired a cottage industry of products which help us avoid detection and tracking. We’ve got software which blocks cookies (used to track us on the internet), proxies which shield our locations and Internet Service Providers, software which can scramble our voices and images, places where we can register anonymously (and services to register for us!), software to encrypt chats and emails, and tons of other things too numerous to name. And why? It can feel like a violation when you are re-targeted for a search you made months earlier… possibly under the influence.
Sure, this category also is close to ‘fear of reprisal’. Public servants in California can have public records related to their addresses removed due to fear of becoming targets of crimes. And sometimes society has decided that the danger of making people targets is outweighed by the public good – consider that we publish the addresses of convicted sexual predators.
Really, though… wanting to be left alone is a pretty good reason for privacy, too. Remember this guy? Not all information wants to be free…
Where is Privacy Being Eroded?
And finally, we get to the ‘where’.
Topically, each of the three controversies in the news currently have elements of privacy in the story. Benghazi? You’ve got an undercover CIA mission, falling under State Secrets. The AP Phone records subpoena? You’ve got the freedom of the press and whistleblowers both in conflict with more State Secrets. The IRS? Take a look at the questionnaire the IRS (the Internal Revenue Service) sent some Tea Party groups. And yes, the Edward Snowden disclosures which detailed vast spying and intercepting of ostensibly private communications.
Tax authorities asking about religion and the content of prayers? Forcing a pro-life group to promise not to picket? Asking for their website administration passwords? Intercepting web cam conversations of a sexual nature? Yep. Absolutely disgusting.
So you’ve got whistleblowers being targeted and intrusions into religion and even your webcam chats. How about some other Government-related examples?
- Allegedly, 15 agents at the IRS stole 60,000,000 personal health records (from 10 million Americans), according to a recently filed civil suit. The complaint included a few of the sensitive topics we listed, “treatment for any kind of medical concern, including psychological counseling, gynecological counseling, sexual or drug treatment”.
- Again at the IRS, an internal memo (leaked in April) claims the IRS can access Facebook chats and emails without a warrant.
- The Department of Justice and the FBI also claimed email is fair game without a warrant.
- The Department of Justice avoided a warrant and moved to intercept a Fox News reporter’s private emails with only a subpoena. The government argued the journalist was a co-conspirator!
- The recent SOPA/PIPA bills tied into privacy concerns – little seen entries about deep-packet inspection had major privacy implications. (Those bills were eventually shelved after an unprecedented Internet protest).
- One aspect of CISPA, the Cyber Intelligence Sharing and Protection Act, was meant to encourage private companies to share user information, and to shield them from legal troubles related to improper sharing. That bill was shelved, but reintroduced (!) 6 months later on 5/16/2013.
- The Journal News in New York State used a Freedom of Information request to obtain the addresses of weapon permit holders. The Journal News then published that information in a map and released it to the public.
- The United States uses drones successfully overseas, but the planned roll-out of domestic drones introduces a ton of privacy concerns. While the Supreme Court ruled well-back in Florida v. Riley that helicopter surveillance of a yard (at 400 feet) is constitutional, drones are capable of flying much closer to ground level. Add to that the privacy concerns raised after the Boston Marathon bombings. It’ll be an interesting few years!
- The Electronics Communications Privacy Act, in a hilariously ironic example of double-speak, eroded the need for a warrant for stored information older that 180 days… reducing the need to a Federal Subpoena (read it yourself). Where did it come up? There is conflicting information about how the emails in the General Petraeus scandal were discovered. He’s not the most sympathetic victim (neither was Frank Vandersloot!), but eroding the need for warrants is an excuse for fishing expeditions.
- The Department of Homeland Security seized assets from Mt. Gox (a Bitcoin Exchange). Some of the reasons (which are technical) include transmitting money without a license. There is no enumerated right to transact money anonymously (which is a stated aim of Bitcoin), and a license in the US would require logging transaction details.
- Pretty much everything ever written about full body scanners at airports is about privacy.
- Edward Snowden. Need I say more?
By no means do I mean to imply that the current Administration is the only in history which did questionable things with regards to privacy. For a brief, Wikipedia driven tour of some privacy related incidents during the Bush Administration: Valerie Plame, Room 641A, Warrantless Wiretapping (in general), and, of course, the P.A.T.R.I.O.T Act. Of course, don’t forget the scarecrow statement: “The only people against surveillance are those with something to hide.” Right.
Privacy Matters in The Private Sector
This article isn’t meant to be an argument for anarchy and an accusation that only Governments invade privacy. On the contrary, it’s just that listing the privacy concerns caused by private business practices would be impossible for any one man (if anyone wants to grace me with a stable of Graduate Assistants, you know where to find me!). I believe that the Government has a key role to play in limiting the abuses of private companies in this regard – putting me far astray any Anarchists!
And where do most of the privacy concerns come from nowadays? Social media, of course – whether it is companies logging into or monitoring personal social media accounts, or the social media companies themselves doing shady things with user data. (Read: over-sharing with advertisers, publishing embarrassing things to friends.)
Advertising is an interesting one too, obviously. Witness the rise of re-targeting and the sharing of search data – like I stated earlier, a search 2 months ago might affect the ads you see on other sites (yes, even on DQYDJ). Convenient? Maybe; but who hasn’t searched for ridiculous things after a news story or while holding a beer?
Again, the allegations of violations of privacy by private firms are so numerous, I’ve got to hand this one off. Check out the Electronic Frontier Foundation as a watchdog for privacy rights in the digital age, and do your best to explain to companies that your privacy matters.
What Does it All Mean?
So, do I mean to imply that the surveillance of 1984 is already here? Funnily enough, even though we have the capacity for all of the surveillance imagined in the book (except Thought Crimes… unless…), 1984 is still far off… and I’m way more optimistic than that book.
The Government has a key role to play in privacy rights for a new century. Email’s unencrypted nature is similar to analog cell phones, which eventually had anti-snooping laws passed to protect privacy (and helped spawn more secure digital cell phones). Searches for information on the internet are similar to searches at the library, which were also protected (albeit the laws are at a state level). Same goes for unencrypted Wi-Fi traffic.
And I truly believe that this story about privacy concerns is an optimistic one:
First, people are free to discuss the implications of privacy in a digital age – this dispassionate analysis itself would be impossible to write in many countries, even today.
Second, violations do inspire responses. CISPA and SOPA/PIPA were all been shelved as a result of concerns. There are overtures towards requiring warrants for reading private emails. The AP Records case is inspiring a revisiting on journalist shield laws (no word on blogger protection, though!). Even The Journal News removed their gun permit map after a gun safe in at least one mapped home was targeted.
Now, some perspective about the increasing Government “power to observe”. In the recent Boston Bombing case, it was surveillance footage from a private company – Lord & Taylor – that helped identify the suspects. It was a private citizen who provided the lead to find the second bomber. We should resist the idea that people who are interested in privacy automatically have something to hide (even if they once pirated some digital content or smelled some marijuana smoke in Vietnam) and trust other people to help keep us safe before giving up and instituting a total surveillance state – but we need to make sure we do pay attention to National Security at some level and make some allowances for spycraft.
However, if the price of freedom and privacy is eternal vigilance, the fact that these stories are still controversial is a bright light.
That’s great… you know, as long as that bright light isn’t trained on your private information… because privacy matters.