The Intersection of Privacy, Law, and Technology

Privacy is crucial to protect and support the many freedoms and responsibilities that we possess in a democracy. The law is society's primary method of protecting and enforcing our ability to exercise our rights—if a basic human right is denied, then the law should provide recourse to reinstate it. Unfortunately, our society has reached a point at which the law cannot keep up with the advancement of technology and the constant change technology brings to our lives. Those technological changes are important and helpful in many ways, but they are overwhelming our system, and our privacy is the canary in our technological coal mine. If the law can't keep up to protect our privacy, then the technology whirlwind may affect many of our important rights.

WHY IS PRIVACY IMPORTANT?

Although it seems that every day fewer people care about their privacy, the ability to maintain parts of our life as private remains crucial to our democracy, our economy, and our personal well-being. Many people expose their deepest thoughts and barest body parts every day, leading pundits to decry that privacy is passé. Others 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 in which 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 the law and society's standards is not always as easy as it seems. Recently, a car insurance company has been advertising a service in which 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 discuss whether 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.

Losing Anonymity

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 they are 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 you 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...