Privacy Law and Policy : Privacy Lawyer & Attorney : Kevin Whitaker Law Firm : Patient Confidentiality, Defamation, Identity Theft : Privacy Law & Policy Blog

Anyone who's been on Facebook, reviewed the MySpace postings' cases, or "googled" a job applicant only to be stunned by what they found would have a hard time arguing against Schneier's assessment. But sometimes it's hard to see the forest through the trees, especially when the trees have surveillance cameras and are keeping track of almost everything you are doing.

In a forum post that caught my attention as I browsed my alert feeds tonight, one poster remarked, "Think about it:

• If you drive to work and use an electronic toll pass it's recorded. All of your stops and even the speed you are going is recorded in a box within the car that can be admissible in court (i.e.; you don't own the data).
• If you use a computer at work all your emails are recorded and probably the keys you type too.
• If you're in a secure building your access is tracked and they take pictures too.
• If you shop and use either a debit, credit or loyalty card your purchases are recorded.
• Government buildings (and most commercial buildings and stores now) record your presence on cameras and may require ID before you are allowed to enter.
• If you travel by train, plane or ship your travel is recorded.
• If you buy drugs at your local pharmacy, it's recorded regardless of whether you use cash or not.
• If you buy a house, car or anything that requires financing, it's recorded.
• If you get a paycheck, bank or file a tax return it's recorded.
• If you give marry, divorce, give birth or die, it's recorded.
• If you are arrested or convicted it's recorded.
• Does it not feel a bit like "The Truman Show" already?
• Now they can aggregate all that information into one place and even produce predictability models on what your future behavior will be.
• Does it matter?
• Do you care if your [curious] employer, friends, neighbors or co-workers can pay to find out how much you make, how much you paid for your house, what your political affiliation is, if you're taking paxil or get all the gritty details of your unfortunate divorce or sexually transmitted disease?
• Do you care if your partner can track your whereabouts?
• Do you care if the government can track your whereabouts?
• Do you care if the information is accurate?
• Maybe it just does[n]'t matter?

The commenter's argument demonstrates it's easy to see protecting privacy rights is an uphill battle, but I'd argue privacy always has and continues to matter. Orwell's 1984, James Joyce in several works, today's movies such as Minority Report or Eagle Eye tap into our worse fears in abandoning privacy and giving up control over our private lives. While these works capture the mind and our attention when examining them, they don't, by themselves, move privacy into the realm of policy, law, and legal protections. This is one reason why I think a Privacy Law and Policy Blog matters, too (and why I've associated both law and policy in this blog's title.) This conversation about privacy isn't new one, however, but it's a conversation which needs to be occurring some place, especially given the speed and economic incentives that today favor weakening individual's privacy protections.

Schneier's environmental analogy is a good one. While the environmental fight is hardly over or been won, it's an example of a movement that has taken years of efforts by many to raise its level of awareness and to work its way into moral, policy, and legal discussions.  While not comparing the two on any substantive level, privacy rights, like environmental rights, seems to have difficult forces working against it today much like the environmentalists have faced for years.  At times it was obvious to see the frustration in Al Gore's efforts to bring the environment front and center, even on cases that just made sense. Privacy rights seem to be facing similar opposition and a misalignment with common sense.

For instance, do we really need laws that allow schools to prevent a parent from being contacted and then allow a school nurse and administrator to strip search a 13 year old honor roll student to see if she has any Ibuprofen in her bra or underwear? This is a recent case before the Supreme Court. During oral arguments on this case, some members of the Supreme Court seemed to dismiss this girl's notion of privacy right's altogether. If this is the state of affairs today, what's going to happen when social network sites, sexting, data breaches, international phishing, and other matters continue to arise. The courts aren't keeping pace with technology or with the way a younger society is living.  In some ways it's ironic that an institution shrouded in privacy misses the public's interest in privacy. Recently in MA, a federal district court judge was told she can't allow a RIA hearing to be streamed live over the internet. The judge wanted to stream the hearing live, but was appealed and told "no."

Technology and the law are not strangers and, again, this debate isn't new, but the blistering pace and extent of changes in today's social communications seems far greater than those occurring before these times--but perhaps the principles being fought for aren't all that new. 

On December 15, 1880 Warren and Brandeis published, The Right to Privacy, in the Harvard Law Review, and wrote

Of the desirability -- indeed of the necessity -- of some such [privacy] protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

...

  It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required. Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defence, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and to-day fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often, even to his own officers engaged in the execution of its command. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?

I'll end this post (which started off with the intent of being short) with a short Benjamin Franklin quote,

They who would give up an essential liberty for temporary security, deserve neither liberty nor security.