The recent disclosure (read: leak) of the National Security Agency’s extensive spying on Americans—in addition to others around the world—led to outrage on the part of those who demand a certain level of privacy. But in the age of the Internet, Facebook and security-at-all-costs government, does privacy still have even a minute role in our personal and business lives?
What Is Privacy?
In addressing whether we can expect privacy to survive the surveillance arsenal (both from governments and companies) directed at it, we must first ask what privacy is and how far it should extend. In many ways, privacy is as much unexamined as the concept of intellectual property. We may think we know it when we see it (and to some extent that’s true), but some critical reflection can help clarify reasoning about different situations.
So, what is privacy? Privacy could be defined as the right or ability to keep certain information, possessions and actions out of the sight and/or knowledge of the “out group” (i.e., anyone to whom an individual does not want to make a revelation). Individuals, for instance, generally want privacy when changing clothes, surfing the web or simply going about their business inside their homes. Companies may want privacy with regard to negotiations with other companies, financial data, technologies under development or business strategies. In other words these individuals and companies want to keep certain sights, possessions or information exclusive to the “in group.”
Technology’s Challenge to Privacy
Surveillance cameras everywhere. NSA (and other alphabet soup) spying on phone calls, Internet searches, emails, chats and who knows what else. Drones watching from the skies. Corporations stockpiling, buying and selling information on customers. And data centers quietly storing and processing all that information. Defining privacy is one thing, but maintaining it is another. Given the vast apparatus of eyes, ears and “brains” (data centers) tracking so much of our lives, the next critical question is where we should have an expectation of privacy. To some extent, this is a cultural matter with some grey areas, but some exemplars of privacy (or lack thereof) can help guide subsequent reasoning.
Simple Exemplars of Privacy
An individual or business can generally expect privacy when using some means to protect information, possessions and so on, as long as that means is effective and doesn’t infringe on anyone else’s rights. For instance, a company might build a fence (perhaps one that blocks views as well as access) around the campus. But a person walking on the public sidewalk is not violating that company’s privacy if he or she sees what’s taking place on the campus, as long as no trespassing takes place.
Another exemplar is a business transaction. If two companies engage in some transaction, each gains some information about the other (e.g., what the other company bought or sold, who was representative for the deal and so on), and that information is no longer private, in the sense that neither side is bound, per se, to withhold it from others. The exception, of course, is when the companies agree not to disclose certain information—in that case, the information remains private. Hence, privacy policies on the part of companies are a tool by which business partners and customers can ensure some agreed-on level of protection for their information.
Another level of privacy concerns the government. In the U.S., the Fourth Amendment to the Constitution guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” except for certain cases where the government, by due process, gains permission from an applicable court. A person who broadcasts such information (say, in public Facebook posts) has waived privacy rights for that information, but otherwise, everyone has the expectation that government agents may not bypass privacy protections (walls, shades, encryption, pockets, briefcases and so on) without probable cause as attested to by a court of law.
In each of these cases—through use of private property, contracts and legal rights under the Constitution—a person has legitimate means to hide information, sights and so forth from others. Each of these cases is fairly uncontroversial (except in the last case, where statists will claim that nebulous justifications like “national security” trump privacy rights); technology, however, has enabled situations that are much harder to evaluate.
Now, a look at some tougher cases to show the conflict between technology and privacy.
If a person walking by company or individual property is not violating anyone’s privacy by simply looking around, what about someone taking pictures of that property using a camera or video recorder? (This situation generates a more visceral response when the property is, say, a home or a playground for children.) If we assume that recording or photographing anything on or visible from public property is not a violation of anyone’s privacy, we have granted a foundation for surveillance cameras anywhere and everywhere. Even satellite and drone surveillance becomes fair game—a (perhaps unfortunate) result of the simple exemplar of an individual having the right to observe from public (or his or her own private) property. Attempts to cut off this right at the level of the technology—for instance, you can’t photograph from public property—are problematic.
The situation becomes more complicated, however, when advanced imaging technologies come to bear. Cameras and video recorders generally operate in the visible spectrum; they record what normal eyes can see, so if a property owner goes inside and closes the shades, he or she is invisible to observers outside. Infrared, millimeter-wave and other technologies, however, can “see” through walls and other barriers, essentially revealing your whereabouts and actions on your private property regardless of any (reasonably economical) means of preventing it. Here, technology—using the simple exemplar above—essentially eliminates any realistic possibility of maintaining a private space. (You could encase a room in concrete, metal and other materials to thwart various technologies, but you’d probably run afoul of some kind of building code.)
On the other hand, cell-phone transmissions—simply another form of “light”—are protected: you are not allowed to intercept them. In other words, although some forms of light seem to be fair game, those involving technology to convert to visible or audible signals may not be. One means of protecting privacy, then, could be to outlaw (except in cases of a duly obtained warrant by government officials) intentional interception of any non-visible form of radiation. Such a principle would simply be pragmatic, however (i.e., it simply aims to “draw a line” to enable some form of privacy); it lacks a more fundamental justification. But it would mean that what you display on your property to the naked eye (and to cameras that detect corresponding electromagnetic frequencies) is not private, but what you hide from the naked eye is private. End-runs around privacy, such as infrared or X-ray imaging, would be a violation of privacy.
Can such a principle stand under cross-examination, however? Possibly. Given the power of technology to remotely see everything we do—even in our homes, to say nothing of the Internet—privacy is under threat. As a culture, if we are to maintain any kind of privacy, we must confront these issues and determine guidelines for acceptable behavior. The NSA spying scandal should, in addition to being a wakeup call to a society falling quickly into a totalitarian police state, be treated as an opportunity to consider the benefits and limitations of privacy.
Reasoning through an issue like privacy takes time and thought—two scarce commodities in our high-paced, information-flooded society. If, however, in our lives as individuals and our work as companies we are to maintain any sense of “such-and-such is none of your business,” we must carefully consider the role of technology in our lives. The key is not to balance privacy and security (the Fourth Amendment, in its common-sense interpretation, provides plenty of balance), but to balance privacy with individual rights. Businesses, for instance, should be able to hold meetings on their campuses without worrying about being legally spied upon by X-rays or infrared sensors from afar. On the other hand, someone walking down the street should not be committing a crime by looking at a company building. Here is the real challenge of privacy in an age of high technology.
Image courtesy of geralt