The Political Importance of Substantive Privacy Rights

Next year, I will be a Privacy Research Fellow at NYU's Information Law Institute. As I was applying, I decided to write a post explaining why I was applying to privacy jobs in the first place, and why we should all care about privacy from a political process point of view. I was thus already in the middle of writing this post when I found out last week about the fellowship, but it's pretty much unchanged from what it was. A little while ago, Frank Pasquale posted a review of Daniel Solove's Nothing to Hide: The False Tradeoff Between Privacy and Security, a book I immediately added to my reading list. While I can't yet speak to the book itself as there are intervening books on my reading list, the review hits the main reason I am interested in privacy:

Solove finds in the First Amendment a set of principles to guide a modern vindication of Fourth Amendment rights. We have a right to freedom of expression in large part because we cannot properly think for ourselves, develop our own personalities, or act as citizens without some guarantees that these activities will not draw undue attention from powerful individuals and institutions who do not share our views....

Thus courts should be particularly suspicious of “surveillance of political activities, identification of anonymous speakers, prevention of the anonymous consumption of ideas, discovery of associational ties to political groups, and enforcement of subpoenas to the press or to third parties for information about reading habits and speech.” First Amendment “overbreadth” doctrine, which deters government activity that chills protected expression, should also cabin the scope of large-scale information gathering programs.

These days, I tend to describe my interests as the intersection of "media, technology, and civil liberties" generally. Civil liberties can be defined as the liberties required for a meaningful self-governing society. The various ways in which technology is changing them for good or ill are all important to examine, and privacy might be the most rapidly changing one, as well as the least currently addressed by law.

Pasquale goes on to mention something else very important, which I have mentioned here before (see point 2) - the fact that a great many of these civil liberties encroachments are from private actors:

My only concern about Nothing to Hide is that it is so focused on governmental threats that it may not adequately consider the private sector’s means, motive, and opportunity to abuse power...The shadowy saga of HB Gary, Bank of America, and the Justice Department suggests just how far a fused state-corporate apparatus could go to smear its enemies and cover its tracks.

Constitutional law contains a "state action doctrine" that means loosely that the Constitution only applies to the government (e.g. Citizen A cannot violate Citizen B's First Amendment rights - only the government can). However, this really need to be rethought, or at least the legislatures really must get involved. Modern-day civil liberties issues deal hugely with private actors. Everything I write here is subject to Google's whimsy. If they shut down blogger tomorrow or even just block this blog, I have no venue for speech. I have other blog platforms, I suppose, but they might also block me if I'm upsetting enough. (See Wikileaks.) Apple regularly blocks apps for political reasons and we all know Facebook blocks certain groups. There is almost no way we communicate that is not subject to private actors. The only reason even phone lines aren't able to be censored is due to common carrier laws, not the Constitution.

The same is true of privacy. If we go to certain websites, and know that information will be saved, will we stop doing so? I mean, if that information is available to government, maybe. We all sardonically joke about googling "jihad" and getting placed on the no-fly list. But there are other, information-based privacy concerns that are purely private. Data is available, and it's being used. We give it away constantly in return for all that we enjoy on the web, either on Facebook or our clickstream. But no matter how hard we try and protect our anonymity online, by staying off Facebook, for example, it doesn't help as much as you'd think. It turns out that computer scientists have been able to back out identities pretty well from the available data that doesn't include identifiers. Paul Ohm has proposed privacy rights in the aggregation of data, that are separate from the data itself.

Take a look at just one resulting phenomenon: personalization of the web. Eli Pariser, former Executive Director of MoveOn.org, recently wrote about this subject (He also gave a fantastic TED talk):

When he was executive director of the progressive advocacy organization Move On, Eli Pariser had the chance to meet lots of fellow liberals. But he had fewer conservative friends, and he worried he was missing out on their perspectives on political and social issues. So he made an effort to add conservatives as friends on Facebook, hoping to get a mix of left- and right-wing perspectives in his Facebook News Feed.

It didn't work. Over time, Pariser noticed he was getting fewer stories from conservative friends in his Facebook feed. Facebook's EdgeRank algorithm saw that he was clicking on links from liberal friends more often that those from conservative friends, so, gradually, it personalized his News Feed to prioritize the topics he'd showed the most interest in. Despite his best intentions, his Facebook community became a "filter bubble." Pariser's The Filter Bubble: What the Internet Is Hiding from You (Penguin Press) looks at the personal and political implications of internet personalization.

So here we voluntarily give up privacy by interacting with Facebook, and it changes our perception of the world. Personalization of the web is new and rapidly growing trend. It's disturbing enough when it's opt-in, such as Google's new ability to filter out blogs from "news" results. But when data is being used and you don't even know it, that's a much bigger problem. When we're only talking to ourselves, we lose the very fabric of society - something Cass Sunstein has been talking about for a decade with his work on group polarization.

Anyway, the point of this post is simply that privacy and security in our behaviors is about much much more than "having something to hide," and it requires protection not just from the government, but from private actors as well. Everything here is tied into having a self-governing society. This is why I used the word "substantive" in the title of this post. It is the effect on society that is important, not who is causing that effect. A formalist approach to rights only considers government infringement, but that simply won't cut it. With regard to speech and privacy, we need to start thinking about rights in a substantive way. We have a right to self-governance, and it doesn't matter if corporations are the ones destroying that right rather than current government - either way it is antithetical to a free society.