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	February 7, 2005

The Right to Privacy In 1890, Samuel Warren and Louis Brandeis wrote an article in Harvard Law Review that established the principle of privacy in America for the first time. Although the courts have been establishing precedents to protect privacy in the US ever since, there is no constitutional right to privacy in the US as there is in Europe and Canada, and in international charters. Instead, as one legal commentator has written,"Warren and Brandeis presented the idea of privacy as it should be understood: as deeply entrenched in culture, evolving over time, fundamental to the wholeness of the individual, and reflecting the social environment in which people exist." The need for privacy is a recent phenomenon, a function of the increasing size, pervasiveness and invasiveness of government, business, and communities. In nature there is no privacy, no right of privacy, and no need for it. In early human history where the community was the centre of social life, communities were small and everyone knew everyone else, government was only interested in individuals' combat capability (for conscription), and business was small and unable to focus on individual consumers, the very idea of a 'need' or 'right' to privacy would have been considered absurd. Neighbourhood gossip was the only real invasion of privacy, and, without brick walls to conceal personal activity, such gossip would be easy to confirm or discredit. And with no media to spread private information outside the community, those scandalized by gossip could always move to another community. With the advent of permanent building structures for family units within a community, and later for corporate entities, privacy came into being, and, with it, a perceived 'need' for privacy. Initially the idea of privacy must have been concomitant with the idea of 'property': As soon as individuals had 'private' property, they could conceive of the need for 'privacy' regarding what occurs in and on that property. With both concepts must have arisen the first idea of shame. Why would you 'need' privacy unless there was something going on behind walls you were ashamed of? Leap forward a century and now there are three groups: government, business, and community, all with a vested interest in 'invading' privacy to obtain information about individuals, in ways that can be at once helpful, or even necessary to them, and damaging to the well-being of the individual. With the advent of income tax, government for the first time had a need for 'private' information about your financial situation. They also have a temptation, which (as the US McCarthy-era trials and the Patriot Act demonstrate) occasionally gets out of hand, to collect 'private' information about one's political opinions and criminal history. The community also wants private information about its own members, as communities have become larger, more heterogeneous, more impersonal and less intimately informed about its members. Community members feel a 'need' to know if a new member has a personal criminal history that compromises their security (pedophilia, for example), or if they are carrying a communicable disease. They also have a curiosity, though not a need, to know about other community members' personal information. This creates all kinds of previously non-existent conflicts between rights and needs: Where does the 'right' to privacy end and the right of the community to know begin? If a parent spanks his child? If that spanking is excessively severe or frequent? If a neighbour is suicidal? If a neighbour is gay? If a girl wants an abortion without her parents' knowledge? In simple communities where there is no private property all this information is simply known, and the community deals with it. Interestingly, where it is simply known, the community generally seems to deal with it in a more compassionate and tolerant manner than when it must be found out. For example, in Britain, where communities were especially rooted and close-knit (a consequence of so many living on such a small island), tolerance for eccentricity was long a matter of national pride, a hallmark of the culture. After all, when you have to live with people for a lifetime, you make allowances. But in large, transient communities, such tolerance seems to be strained very easily. Last but not least, the enormous growth in size, power and wealth of business has made its desire for private information, and the damage it can do with it, greater than that of either governments or communities. Information about an individual's medical history, for example, if leaked, can cause the cancellation of their insurance (eliminating their ability to provide for their survivors), firing from their job, inability to get another job, loss of pension. Information about an individual's financial or credit history can prevent them from getting a mortgage or a job or establishing a new business. Information about an individual's criminal history likewise. What's worse, that information need not be correct to cause the same harm -- it can be a simple bureaucratic error, a case of mistaken identity, or even a malicious fraud. Identity theft is only the latest of a burgeoning number of privacy abuses made possible by the explosion of information and technology that uses it, coupled with an increasingly centralized and impersonal society. And business is also interested in other types of private information that can give it 'competitive advantage': your buying habits, the intellectual property you are developing, your income and lifestyle, even how you voted in the last election. So now we have a host of different types of abuse that can result from 'invasion of privacy', the accidental or deliberate misuse or the mere divulging of information of many kinds: medical and health information financial information political preferences and history commercial preferences and history criminal records social activities and memberships identity information Failure to protect the 'right of privacy' and even failure to ensure that publicly-available private information is accurate, can now have devastating consequences: deprivation of other personal rights and freedoms financial ruin (including the financial ruin of innocent loved ones) business failure identify theft invasive marketing intellectual or financial property theft social shunning false arrest or harassment (in extreme cases leading to deportation, torture and death in foreign prisons) Modern privacy law is focusing principally on the right of privacy of financial information maintained by businesses, an important, but very small piece of the pie. What has evolved in this area is what are called Fair Information Practices: The right to receive notice that information is being kept on you The right to opt-in or opt-out from participation in that information collection The right to have access to personal information about you kept by others, and have errors in that information corrected The obligation to maintain adequate security over information maintained on others, to prevent access or tampering by third parties The obligation of government to enforce the above rights and obligations So what should we do? Where do we draw the line between our right to privacy and our need to know? It is tempting to say we should just acknowledge that 'information is always trying to be free' and accept that with Fair Information Practices we are at least buffered, usually, from the worst abuses of privacy. But just tell that to the woman who's been diagnosed with AIDS and has lost her job, her insurance, her life's savings, her marriage and her friends -- not because of the disease but because of disclosure of this private information. Tell that to the victim of identity theft, or even mistaken identity (I know a guy whose name is similar to one of the names on the Homeland Security terrorist blacklist, and he's been detained at airports so often and missed so many flights it has destroyed his business). Tell that to the teenage girl forced to carry a rapist's baby to term because the doctor, against her will, notified her parents of her pregnancy. But at the same time, if we go too far to protect the right to privacy, we are perhaps dooming the victims of spousal, child, elder and animal abuse to a life of interminable hell. We are perhaps allowing the next Waco cult or Oklahoma Federal Building bombers or abortion clinic bombers or Abu Ghraib/Guantanamo torturers or anthrax/smallpox bioterrorists or airplane hijackers or nuclear reactor bombers the time and opportunity they need to perpetrate their next atrocity. We are perhaps allowing the explosion of sleazy backroom deals between unscrupulous businesses and unscrupulous governments against the common interest. Last summer I talked about  The End of Privacy (check out the excellent reader comments to that post) -- a 'watch-the-watchers' world described in Salon by David Brin where ubiquitous, cheap, miniature video technology would allow everyone to snoop constantly on everyone else. Brin was talking about privacy of actions, not privacy of information. At the time, neither Brin nor I thought it was such a bad idea. But the problem is that the end of privacy of actions also brings with it the end of the privacy of information. If I'm a life & disability insurance company, my camera's going to be planted in the oncology specialist's office. If I'm a parent, it's going to be planted in my child's clothing. If I'm a Homeland Security brownshirt, it's going to be planted in the possessions of everyone at the anti-war rally. If I'm an employee, it's going to be planted in my boss' house, or office, or boardroom. If I'm the boss, it's going to be planted in the competitor's boardroom who's about to launch a new innovative technology if I don't buy it out and shut it down first. Suddenly ubiquitous pennycams don't seem like such a good idea after all. But are they coming anyway? The need for privacy is a consequence of the increasing social complexity that comes with the concept of 'private' property. That increasing complexity allows the development of increasingly sophisticated technology. And that technology threatens the end of privacy. It's a vicious cycle. We're not going to get out of it by banning technology. The only way out is to transition to a world of simpler communities, where there are no strangers and where privacy of action is neither possible nor necessary, where there is no need or use for big government or big corporations, so the value of 'private' information is zero. What Kurt Vonnegut calls "primitive communities" -- small self-managed communities without 'private' property: Human beings will be happier - not when they cure cancer or get to Mars or eliminate racial prejudice or flush Lake Erie but when they find ways to inhabit primitive communities again. That's my utopia. It's interesting that we find it so hard to imagine a world where small, self-selected and self-managed communities are the centre of our social, political and economic life, and where big government and big government and even money are no longer needed -- a world without privacy, or the need for it, without private property, and without shame. 3:51:03 PM  trackback []  comment []

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