Privacy Isn't Dead, But It Will Die Without Help

We are surrounded today by a cacophony of claims that "privacy is dead." With the advent of the Internet, smart cards, Facebook, and the like, these voices shout there is no longer privacy and that we should just get used to it. The claim is that, as former Wall Street Journal publisher L. Gordon Crovitz recently wrote, "The fantastic power and convenience of digital life has led us to change what we consider private in ways that we can only begin to understand. ... Privacy remains a virtue, or at least we still say it does. But the balance has been tipped by other values, such as transparency, a free flow of information, and physical security."

Flip assertions like these are misleading and unhelpful. The history of such issues shows that privacy has always been an evolving concept. But evolving is not the same as dead. Privacy is a multilayered concept and we need to treat it as such.

One of the arguments of the "privacy is dead" crowd is that there is a generation gap in privacy. That is, whatever privacy constituted in the past, those born in the last thirty years publish their most intimate details of life on their MySpace and Facebook pages and don't value the concept in the same way. Not so, say the authors of Born Digital: Understanding the First Generation of Digital Natives. "New technological affordances have meant that for most digital natives, sharing via digital tools has become the norm — but this does not mean they don't care about privacy," writes John Pelfrey, one of the book's authors. "Privacy concerns vary largely among young people based on age, education, and if repercussions of privacy compromise have been experienced. 'Privacy from whom?' is an important question here — hugely differing attitudes are prevalent in regards to sharing with friends, strangers, service providers, and government entities."

And what do older people think about privacy? When information about the family of Republican vice presidential nominee Sarah Palin first surfaced, both John McCain and Barack Obama said it was a "private family matter." Or, take the case of federal Appeals Court Judge Alex Kozinski of California, who posted sexually explicit material on a publicly accessible server at a time that obscenity trials were pending before him. In response to media queries, the spokeswoman for his court released a statement stating that "The server and its contents are a private matter."

In both of these cases, the people involved clearly had an expectation that privacy is not dead. And, privacy is about much more than the concealment of familial difficulties or personal sexual interests, it is a requirement for healthy human existence. Think about your intimate relationships. Within them, privacy is indispensable to the fundamental values of love, friendship, and trust. Having certain information private allows it to be selectively shared, enhancing our ability to bond with those we love. The concept of trust, so important to the formation of our relationships, would be meaningless if all privacy was truly dead.

In reference to the case of Kozinski, Stanford professor Lawrence Lessig recently wrote, "When it comes to government invasions of our privacy, we are (and rightly) a privacy-obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls."

So the real issue, as Pelfrey writes, is "privacy from whom." Today, this issue revolves most importantly around government and employer intrusion. As we all know, there has been a grotesque increase in government spying, and even the most liberal politicians in Washington seem inclined to continue this trend. If governments, whether here or in China, are able to copy every keystroke we make and run them through banks of supercomputers, they will severely wound any extant notion of privacy. While the matter is extraordinarily complex, legal and technological protections could be available. Some legal theorists wonder why personal data held in the "deep Web" is considered to "belong" to marketing companies and their ilk. As with our intellectual property, why shouldn't the legal rule be that we own our own personal data and can lease it when we want? If governments and business were thus legally constrained, the technology exists to provide a powerful protection for online privacy.

Those who want to limit privacy rights have always been with us, it is just their arguments that are changing. In my lifetime, discussions about privacy moved front and center in the wake of Roe v. Wade. At that time, the question was not so much whether privacy was dead, but whether it was good. In a book written at the time, the prolific Judge Richard Posner claimed that intrusions on privacy actually had a beneficial economic result. He also claimed that a negative relationship existed between privacy and creativity, arguing that the lack of privacy generated expressive skills. Writing of "blacks living in slums," he argued that the "lack of privacy may explain the emphasis on rhetorical skill in this otherwise-deprived culture." Since those who are trying to destroy privacy today cannot resort to this argument, terrorism will have to suffice as their crutch.

Privacy is like due process rights for those accused of crime. When the other gal is charged, you wonder why there are so many rights for criminals. When someone you know is charged, you wonder why there are so few. Some who think about privacy frame the issue as that of the hunter and the prey. The government or the employer is the hunter, and the hunter always wants less secrecy, because surveillance is power. Those who tell us that we do not need to consider privacy because it is already dead are playing into the hands of the hunter. Unfortunately, the rest of us are prey.