The following post was written by Sarah A. Downey, an attorney and privacy analyst at Abine. It is part 1 in a 3-part series on what privacy is not, allowing us to define what privacy is by examining what it isn’t.
Privacy isn’t about hiding bad things. It’s about protecting our freedom to do good things. Until we recognize this simple distinction, we’re in trouble.
Privacy isn’t some dark shadow that only “bad people” pull over themselves when they’re doing “bad things.” Stop thinking about it like that. Instead, picture it like the protection of a high-walled room with an open ceiling. We each have our own room, and they’re all part of one enormous house. We’re connected to our friends, family, and acquaintances through doors that we control.
Let’s say you’ve chosen to close your doors. You stand in the center of your room. No matter how hard you try, you can’t look over the walls. Nor can anyone else look in and see you. Once you choose to close your doors, no one is tracking your movements; no one can hear what you say; no one can read what you’ve written; no one knows who you’ve been hanging out with. You can do what you want without judgment or consequence. No one is watching you. You’re free. You can open certain doors to specific people, knowing that they’re the only ones with whom you’re sharing. Privacy provides both the boundaries of and protection for the space in which we can be ourselves.
These are the “good things” that privacy nurtures: self-expression, creativity, speaking your mind, associating with whomever you wish, and exploring your interests. These are the First Amendment’s protections: freedom of speech, of association, and of assembly. They’re so important for self-actualization and self-determination that our founders immortalized them in the Bill of Rights.
Note that I’m representing privacy by high walls with an open ceiling, rather than an impenetrable fortress. The sky remains open. It’s a place from which others may see you, but it’s rare, and you expect it. You’re aware of its presence. The risk to your privacy is clearly delineated: the only checks on your privacy come through that opening. Anything else is a violation.
But privacy violations are closing in on us, chipping away at our walls one inch at a time. Advertising networks are tracking everything we do online. Companies are selling our home addresses, phone numbers, email addresses, and lists of family members. Facebook collects and stores every post, picture, and poke, selling our information to third parties. Google’s trying to get rid of aliases on the internet. Apple patented facial recognition software, and they’re not the only ones who have it.
The walls are coming down, piece by piece, and now we can see neighboring hills and landscapes; make out the outlines of trees. But just because we can enjoy seeing more doesn’t mean that we’re freer. To the contrary. Alongside this new openness comes increased visibility and scrutiny of our behavior. We can see more of the world, but the world can see more of us. Facebook and social networking sites may make us feel more connected, as though the possibilities for expression are greater, but so are the possibilities for exploitation.
We act differently when others are watching us. It’s human nature. You wouldn’t walk around naked while belting Madonna into your hairbrush while you’re at work, but plenty of you reading this have become impromptu rockstars at home. You wouldn’t think twice about it within the encirclement of your private room’s walls.
We also act differently depending on who’s watching us. Having a close friend nearby may not dissuade you from morphing into the Material Girl, but perhaps a stranger would. Almost certainly, a full house of US senators would.
Online, the audience is limitless. Anyone could be watching–advertising networks, potential employers, ex-spouses, stalkers, the government–and those of us who understand this risk tailor our behavior accordingly. We censor ourselves. We become intentionally uncontroversial; unintentionally boring. We don’t say what we truly think because it might put us at risk for punishment later.
Pseudonyms help, but they’re not a perfect fix. They require us to subdivide our identities, manage our self-inflicted multiple personality disorders, just to feel like a whole person. Google and Facebook are trying their hardest to make them obsolete. The way things are going, they may succeed.
Many of us believe that less privacy is good because people will stop doing, or posting about, illegal activities if they know they’re being watched. It’s only those people with something to hide who have to worry, right?
Wrong. Although it’s legal for consenting adults to have sex and drink alcohol, for example, any record of these activities can lead to public outcry. Anthony Weiner lost his senate seat because of a twitpic; high school English teacher Ashley Payne lost her job because of a beer in a facebook photo. Sixty-nine percent of employers say they’ve decided not to hire someone based on that person’s online identity. They often cite “inappropriateness,” whatever that means. The world exercises its judgment on which activities are worthy and which are not. It’s a moral, not a legal, judgment. It’s not the separation of church and state that the First Amendment strives to give us.
We won’t stop drinking; we won’t stop having sex. Nor should we: both are within our rights. But we’ll think twice before we leave admit, digitally, that we’re doing it. And we shouldn’t have to. We’re consenting adults; we’re not doing anything illegal. Why shouldn’t we express ourselves? Isn’t that what the First Amendment is all about?
Our conception of privacy is even more important when we consider that it shapes the law. The Fourth Amendment, which protects us from unreasonable searches and seizures, actually changes depending on society’s collective expectation of privacy. Here’s an example. You’re a student, and you find out that your school has installed a webcam in your laptop and school officials are using it to watch you while you’re at home. (Sounds like sci-fi horror? This actually happened in a Pennsylvania school system in 2010.)
Whether watching you on these webcams is a “reasonable” search depends on (1), your individual expectation of privacy, given the situation; and (2), society’s collective expectation of privacy. The test is both subjective and objective, respectively. If society grows accustomed to a world without privacy, this second portion of the test is harder to meet. These webcams posed a Fourth Amendment problem, in part, because society deemed them an unreasonable privacy violation. But in the society of Orwell’s 1984, in-home surveillance was a legal, and expected, part of life. It all depends on the context, which is why it’s our responsibility to stay vigilant.
While current technology has begun to censor what we say, facial recognition software threatens to censor what we do, even offline. Imagine that you’re known in your community for being an animal rights activist, but you secretly love a good hamburger. You’re sneaking in a double cheeseburger at a local restaurant when, without your knowledge, someone snaps a picture of you. It’s perfectly legal for someone to photograph you in a public place, and aside from special rights of publicity for big-time celebrities, you don’t have any rights to control this photo. This person may not have any ill intentions; he may not even know who you are. If he uploads it to facebook, and facebook automatically tags you in it, you’re in trouble.
Same goes for the staunch industrialist caught at the grassroots protest; the pro-life female politician caught leaving an abortion clinic; the CEO who has too much to drink at the bar; the straight-laced lawyer who likes to dance at goth clubs. If anyone with a cell phone can take a picture, and any picture can be tied back to us even when the photographer doesn’t know who we are, we may stop going to these places altogether. We may avoid doing anything that could be perceived as controversial. And that would be a pity, because we shouldn’t have to.
People aren’t sufficiently worried about privacy issues because they think, “I have nothing to hide; these things don’t apply to me.” This mindset is based on the faulty assumption that privacy is all about hiding negative things. It’s about positive rights, too: the right to live and speak freely without outside scrutiny. When we feel we’re being watched, we censor ourselves. Tracking and surveillance have chilling effects on freedom of speech, freedom of association, self-expression, and other celebrated, protected activities. Simply put, we aren’t ourselves when we think others are watching. This is the privacy violation with which we should concern ourselves. This is the risk.
It’s harder to rebuild something after it’s broken than to prevent its destruction in the first place. We need to stop our walls from coming down. We need to make smarter choices about the services we use, the features we demand, and the petitions we sign. We need to be active participants in the privacy debate. Then, maybe, we can build up our protection again.