The discussion about privacy in the great surveillance debate reminded me of an event where an organization promised the audience to keep our privacy safe from “government,” showing a slide on a big screen with the NSA seal and a hand grasping something – it may have been an umbrella – getting ready to thwack it.
It struck me that it’s not much help if the only government I'll be protected from is the U.S. The Chinese appear to have bought a new big data analytics program since they are going around stealing millions of records from places like Anthem and OPM. Russian criminal gangs connected to the Federal Security Service (FSB) have personally identifiable information on every American with a credit card or mobile phone. No privacy there.
I looked at the event’s sponsor list - big companies that have built businesses around extracting personal information and reselling it. Of course, there was no offer to protect privacy from them. Everyone’s personal history is stored and instantly retrievable for commercial purposes, and commercial databases are prime targets for foreign intelligence agencies. The absence of meaningful privacy protection has little to do with NSA and the bill just passed in Congress doesn’t change this. Scott McNealy of Sun Microsystems was right in 1998 when he said, “you have no privacy, get over it.”
Hostility to government drives the debate over surveillance more than privacy (or else the bill would have tackled private sector surveillance). If more people trusted their government, they wouldn’t be as concerned about surveillance, but significant minorities on left and right share a deep distrust. Having seen what NSA does with data, the idea that they are doing anything but looking for terrorists, spies or proliferators is inane, but the American government is certainly an easy target. Government explanations are clumsy, popular culture portrays Washington as if officials acted like Hollywood execs, and there are pre-packaged ideologies that make it easy for people to blame Washington for all ills.
The surveillance debate would urge us to take up the furled umbrella and beat back Big Brother. That's a convenient straw man, but underneath the melodrama are larger debates over how societies best achieve good outcomes and the balance between the individual and the group. Right and left unite over surveillance because of the shared (if not always coherent) view on the role of government. The Keynesian moment where a giant state apparatus managed societies has ended, but we have not identified a credible replacement. Many people long for a return (even if they don’t know it) to the days of Gladstone, the 19th British Prime Minister who believed that small government was best and that the market would cure all ills. He could run for office today and probably be elected. Gladstone made sense in the 1870s but by 1900, Britain couldn’t keep up. Before someone tells me about Ayn Rand or how once embattled farmers stood and fired the shot heard round the world, note that it is no longer the 19th century, much less the 18th, and we are no longer a nation of small farmers or nor do we have two oceans between us and those who would do us harm.
The idea of privacy (and most U.S. privacy laws) predate the internet. They need to be rethought to reflect how people really behave. Older notions of privacy are historical artifacts, like bustles and spats. When people lived in villages, they had little privacy. Privacy does not appear in the Constitution, which was written for a rural, agrarian society. The industrial revolution built huge cities that made anonymity was possible and privacy achievable. Cynics might note that our modern concept of privacy began at the peak of the industrial revolution (see the chart below) when Judges Brandeis and Warren advocated for this new right, troubled that the newfangled technology would let strangers speak to their women-folk within the sacred precincts of the home, or that photographers and the hoi-polloi would crash society weddings. Today’s thinking about privacy has roots in Victorian attitudes towards women, family, and class.
Industrial age privacy is being replaced by the transparency and digital communities that information technology creates. We don't know how to govern this. What people say about privacy and what they do are very different. Consumers make choices that suggest their attitudes towards privacy are changing significantly. Our current laws and concepts don’t capture the idea of personal data not as an inalienable right but as a good people are willing to exchange for services. New ideas for privacy lie outside the current debate over surveillance. The broad outlines of these ideas can be discerned, but there are contradictions that point to where unbiased research is needed. (Pew Surveys are a good start).
This means the awkwardly-named USA Freedom Act really hasn’t done much to improve privacy. It was a wonderful opportunity for posturing, but no one has more privacy the day after the bill passed than they did the day before.