If an algorithm sees you naked, should you care? My ‘Is Privacy Dead’ feature story for Super Lawyers

My Super Lawyers cover story : Click the image to read
My Super Lawyers cover story : Click the image to read

Being in a state of constant observation will be the new normal. Everyone will come to expect it whether at work or at play.” — Lisa Sotto, cyberlaw expert.

A chilling thought, no?  Pun intended.

Is privacy dead?  People ask me this all the time, as one of the few journalists who writes obsessively about the topic.  It’s a tough question to approach. There’s terms to define. After all, what is privacy? And what would privacy’s death look like?

Then the debate about “death” turns into a frustrating war of anecdotes. With a concept already as squishy as privacy, you’re not going to get data.  You’re going to get people like me warning that your health insurance rates will rise because your cell phone will “tell on you” and message corporations everywhere that you aren’t getting enough sleep.  You’re going to find marketing firms who point out that George Owell-like tales are actually few and far between at the moment (I concede their point).  Then, you’re going to have to deal with the “I have nothing to hide, so why should I care?” argument. According to Larry Ponemon of The Ponemon Institute, roughly one-third of Americans feel that way.

I recently got yet another chance to take a stab at the “Is Privacy Dead?” question, this time from the legal perspective — thanks to Erik Lundegaard at Reuters, who edits for Super Lawyers, a New York Times supplement.  In a cover story I wrote for them, I tried to come up with a decent answer, but no doubt failed. You might have to come up with your own — in fact, that’s what I invite readers to do with a little game at the the top of the story.

As a little background, if it feels like privacy has been on death row for decades, that’s because it has.  details decades of magazine covers and newspaper essays boldly proclaiming “Privacy is Dead.” A 1970 Newsweek cover, for example, features a menacing IBM “Hollerath”-style computer punch card hovering over an otherwise all-American couple. The piece concludes with a section titled “how to stop worrying and love the computer.”

Decades-old trepidation helps makes the point that privacy isn’t a quaint, modern notion that will fade away any time soon, say some experts.

“You cannot ‘kill’ privacy, because privacy is, as much as socialization and interaction, a fundamental need of human nature,” says Alessandro Acquisti, a privacy economics expert at Carnegie Mellon University, “Such a claim reflects an ignorance of history and scholarly research. (There is) evidence of privacy-seeking behavior across all cultures and times, including references to privacy in the holy texts of ancient monotheistic religions.

This is easily demonstrated.   In every culture on earth, it’s the norm for humans to retire to privacy for love-making.

There’s no guarantee that no else one will be watching, however.

In a world where “smart TVs” watch you even more than you watch them, and everything from toasters to thermostats snitch on your personal habits, people are slowly getting used to the idea that both George Jetson and George Orwell were right.  The privacy debate and its many tentacles – consumers vs corporations, citizens vs. government, Big Data vs. small business — produce a diversity of opinions you’ll find in few other topics. But on one point nearly everyone agrees: While privacy might not be dead, the ability to live an unobserved life is on life support.

William Brandeis famously described privacy as the right “to be let alone” back in 1928. But Big Data isn’t leaving anyone alone.  It’s basically impossible to live a normal life and not end up in a series of government and corporate databases.

Meanwhile, the very definition of being observed is up for grabs, and that’s vitally important.  What does being observed mean in a world where every click, and sometime every movement, is being logged by a computer?

When Ed Snowden told the world about the vast data collection habits of the NSA, the U.S. government responded with an odd version of the tree-falls-in-the-forest story. If a computer sees you do something and collect data about it, but no human ever looks at that data, were you really observed?  We collect all this data and store it just in case, the argument went, but we don’t look at it unless we have to, otherwise we leave you alone. So what’s the big deal? By extension, so what if Google or Verizon or a retailer that tracks your cell phone know everywhere you’ve been during the past year? If an algorithm sees you naked, should you care? If the data is only examined in aggregate, used for targeted but still generic ad campaigns, what’s the harm?

“What’s the harm?” a phrase that should sound familiar to many lawyers, will probably be the privacy battleground for the next several decades.  I hear it all the time after big credit card hacks: “What’s the harm? You just call your bank and get a new credit card!” Say that to someone who’s had the same card hacked repeatedly, or suffered cascading overdrafts because their debit card was hacked.

As a journalist, I see my job as raising the issues while there is still a chance to discuss and fix them; but as a realist, I know the ways these things usually go. A few buildings have to burn down before fire codes are updated.  In reality, I think it’ll take a few bad privacy disasters for lawmakers to get serious about the issues. Or a few good lawsuits.  That’s why I was happy to take on this project for Super Lawyer.  Give it a read, if you care about the issue.  You’ll have to use the Super Lawyer reader to see it. The piece is on page 10 if this link doesn’t bring you straight to it.


About Bob Sullivan 1399 Articles
BOB SULLIVAN is a veteran journalist and the author of four books, including the 2008 New York Times Best-Seller, Gotcha Capitalism, and the 2010 New York Times Best Seller, Stop Getting Ripped Off! His latest, The Plateau Effect, was published in 2013, and as a paperback, called Getting Unstuck in 2014. He has won the Society of Professional Journalists prestigious Public Service award, a Peabody award, and The Consumer Federation of America Betty Furness award, and been given Consumer Action’s Consumer Excellence Award.

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