Governments now know more about their citizens than ever before. The Stasi the security service of the German Democratic Republic , for instance, managed to have files only on about a third of the population, even if it aspired to have complete information on all citizens.
Intelligence agencies today hold much more information on all of the population. To take just one important example, a significant proportion of people volunteer private information in social networks. Companies that earn most of their revenues through advertising have used our data as a moat — a competitive advantage that has made it impossible for alternative businesses to challenge tech titans.
In addition to keeping the company safe from competitors and allowing it to train its algorithm better, our data also allows tech companies to predict and influence our behaviour. With the amount of data it has access to, Google can know what keeps you up at night, what you desire the most, what you are planning to do next.
It then whispers this information to other busybodies who want to target you for ads. Tech wants you to think that the innovations it brings into the market are inevitable. Data vultures are incredibly savvy at using both the aspects of power discussed above: they make us give up our data, more or less voluntarily, and they also snatch it away from us, even when we try to resist.
Loyalty cards are an example of power making us do certain things that we would otherwise not do. When you are offered a discount for loyalty at your local supermarket, what you are being offered is for that company to conduct surveillance on you, and then influence your behaviour through nudges discounts that will encourage you to buy certain products.
Both types of power can also be seen at work at a more general level in the digital age. Tech constantly seduces us into doing things we would not otherwise do, from getting lost down a rabbit hole of videos on YouTube, to playing mindless games, or checking our phone hundreds of times a day.
Less visibly, the data economy has also succeeded in normalising certain ways of thinking. Tech companies want you to think that, if you have done nothing wrong, you have no reason to object to their holding your data. They also want you to think that treating your data as a commodity is necessary for digital tech, and that digital tech is progress — even when it might sometimes look worryingly similar to social or political regress.
More importantly, tech wants you to think that the innovations it brings into the market are inevitable. That narrative is complacent and misleading. As the Danish economic geographer Bent Flyvbjerg points out in Rationality and Power , power produces the knowledge, narratives and rationality that are conducive to building the reality it wants. But technology that perpetuates sexist and racist trends and worsens inequality is not progress. Inventions are far from unavoidable.
Treating data as a commodity is a way for companies to earn money, and has nothing to do with building good products. Hoarding data is a way of accumulating power. And we have many reasons to object to institutions collecting and using our data in the way that they do. Among those reasons is institutions not respecting our autonomy, our right to self-govern.
Here is where the harder side of power plays a role. The digital age thus far has been characterised by institutions doing whatever they want with our data, unscrupulously bypassing our consent whenever they think they can get away with it. Yes, institutions in the digital age have hoarded privacy power, but we can reclaim the data that sustains it, and we can limit their collecting new data. Foucault argued that, even if power constructs human subjects, we have the possibility to resist power and construct ourselves.
The power of big tech looks and feels very solid. The data economy can be disrupted. The tech powers that be are nothing without our data. A small piece of regulation, a bit of resistance from citizens, a few businesses starting to offer privacy as a competitive advantage, and it can all evaporate. No one is more conscious of their vulnerability than tech companies themselves. That is why they are trying to convince us that they do care about privacy after all despite what their lawyers say in court.
That is why they spend millions of dollars on lobbying. If they were so certain about the value of their products for the good of users and society, they would not need to lobby so hard. Tech companies have abused their power, and it is time to resist them. In the digital age, resistance inspired by the abuse of power has been dubbed a techlash.
Abuses of power remind us that power needs to be curtailed for it to be a positive influence in society. Even if you happen to be a tech enthusiast, even if you think that there is nothing wrong with what tech companies and governments are doing with our data, you should still want power to be limited, because you never know who will be in power next. Tech companies have helped totalitarian regimes in the past, and there is no clear distinction between government and corporate surveillance.
Businesses share data with governments, and public institutions share data with companies. Do not give in to the data economy without at least some resistance. Refraining from using tech altogether is unrealistic for most people, but there is much more you can do short of that.
If that person were to continue to harass you for your number, what would you do? Perhaps you would be tempted to give them a fake number. That is the essence of obfuscation, as outlined by the media scholars Finn Bruton and Helen Nissenbaum in the book of that name. If a clothing company asks for your name to sell you clothes, give them a different name — say, Dr Private Information, so that they get the message. Make it clear that your consent is not being given freely. When downloading apps and buying products, choose products that are better for privacy.
Use privacy extensions on your browsers. Use the legal tools at your disposal to ask companies for the data they have on you, and ask them to delete that data. Change your settings to protect your privacy. Refrain from using one of those DNA home testing kits — they are not worth it. Write to your representatives sharing your concerns about privacy.
Tweet about it. Take opportunities as they come along to inform business, governments and other people that you care about privacy, that what they are doing is not okay. But you might not be as healthy as you think you are, and you will not be young forever. The democracy you are taking for granted might morph into an authoritarian regime that might not favour the likes of you.
Furthermore, privacy is not only about you. Privacy is both personal and collective. When you expose your privacy, you put us all at risk. Privacy power is necessary for democracy — for people to vote according to their beliefs and without undue pressure, for citizens to protest anonymously without fear of repercussions, for individuals to have freedom to associate, speak their minds, read what they are curious about.
If we are going to live in a democracy, the bulk of power needs to be with the people. If most of the power lies with companies, we will have a plutocracy. If most of the power lies with the state, we will have some kind of authoritarianism. Democracy is not a given.
It is something we have to fight for every day. And if we stop building the conditions in which it thrives, democracy will be no more. Privacy is important because it gives power to the people. Protect it. Childhood and adolescence. From cradle to grave, we are soothed and rocked by attachments — our source of joy and pain, and the essence of who we are. There is no American history without the histories of Indigenous and enslaved peoples.
And this past has consequences today. Disagreements can be unpleasant, even offensive, but they are vital to human reason. Without them we remain in the dark. Thinkers and theories. Simone Weil: mystic, philosopher, activist. Her ethics demand that we look beyond the personal and find the universal.
Few laws or regulations address this new reality. Nowadays, almost every aspect of our lives is in the hands of some third party somewhere. These judgments present binary choices: if private information is somehow public or in the hands of a third party, people often are deemed to have no expectation of privacy. This is particularly true when it comes to government access to information—emails, for example, are nominally less protected under our laws once they have been stored days or more, and articles and activities in plain sight are considered categorically available to government authorities.
But the concept also gets applied to commercial data in terms and conditions of service and to scraping of information on public websites, for two examples. As more devices and sensors are deployed in the environments we pass through as we carry on our days, privacy will become impossible if we are deemed to have surrendered our privacy simply by going about the world or sharing it with any other person.
Without normative rules to provide a more constant anchor than shifting expectations, true privacy actually could be dead or dying. The Supreme Court may have something to say on the subject in we will need a broader set of norms to protect privacy in settings that have been considered public. Privacy can endure, but it needs a more enduring foundation. The Supreme Court in its recent Carpenter decision recognized how constant streams of data about us change the ways that privacy should be protected.
How this landmark privacy decision affects a wide variety of digital evidence will play out in criminal cases and not in the commercial sector. Nonetheless, the opinions in the case point to a need for a broader set of norms to protect privacy in settings that have been thought to make information public. Our existing laws also rely heavily on notice and consent—the privacy notices and privacy policies that we encounter online or receive from credit card companies and medical providers, and the boxes we check or forms we sign.
These declarations are what provide the basis for the FTC to find deceptive practices and acts when companies fail to do what they said. This system follows the model of informed consent in medical care and human subject research, where consent is often asked for in person, and was imported into internet privacy in the s.
The notion of U. Maybe informed consent was practical two decades ago, but it is a fantasy today. In a constant stream of online interactions, especially on the small screens that now account for the majority of usage, it is unrealistic to read through privacy policies. Zeynep Tufecki is right that these disclosures are obscure and complex.
These notices have some useful function as a statement of policy against which regulators, journalists, privacy advocates, and even companies themselves can measure performance, but they are functionally useless for most people, and we rely on them to do too much. At the end of the day, it is simply too much to read through even the plainest English privacy notice, and being familiar with the terms and conditions or privacy settings for all the services we use is out of the question.
Wall Street Journal reporter Joanna Stern attempted to analyze all the ones she received enough paper printed out to stretch more than the length of a football field , but resorted to scanning for a few specific issues. Moreover, individual choice becomes utterly meaningless as increasingly automated data collection leaves no opportunity for any real notice, much less individual consent.
At best, a sign may be posted somewhere announcing that these devices are in place. As devices and sensors increasingly are deployed throughout the environments we pass through, some after-the-fact access and control can play a role, but old-fashioned notice and choice become impossible. Ultimately, the familiar approaches ask too much of individual consumers.
This is an impossible burden that creates an enormous disparity of information between the individual and the companies they deal with. There is no practical way even a reasonably sophisticated person can get arms around the data that they generate and what that data says about them. After all, making sense of the expanding data universe is what data scientists do.
Post-docs and Ph. How can the rest of us who are far from being data scientists hope to keep up? As a result, the businesses that use the data know far more than we do about what our data consists of and what their algorithms say about us.
Add this vast gulf in knowledge and power to the absence of any real give-and-take in our constant exchanges of information, and you have businesses able by and large to set the terms on which they collect and share this data. Businesses are able by and large to set the terms on which they collect and share this data.
The Pew Research Center has tracked online trust and attitudes toward the internet and companies online. Uncertainty, resignation, and annoyance hardly make a recipe for a healthy and sustainable marketplace, for trusted brands, or for consent of the governed. Consider the example of the journalist Julia Angwin. The average person should not have to go to such obsessive lengths to ensure that their identities or other information they want to keep private stays private.
We need a fair game. As policymakers consider how the rules might change, the Consumer Privacy Bill of Rights we developed in the Obama administration has taken on new life as a model. The bill of rights articulated seven basic principles that should be legally enforceable by the Federal Trade Commission: individual control, transparency, respect for the context in which the data was obtained, access and accuracy, focused collection, security, and accountability.
Not a checklist, but a toolbox. This principles-based approach was meant to be interpreted and fleshed out through codes of conduct and case-by-case FTC enforcement—iterative evolution, much the way both common law and information technology developed. As policymakers consider how the rules might change, the Consumer Privacy Bill of Rights developed in the Obama administration has taken on new life as a model. The bill of rights articulated seven basic principles that should be legally enforceable by the Federal Trade Commission.
The imminence of this law, its application to Facebook and many other American multinational companies, and its contrast with U. It has many people wondering why the U. I dealt with the EU law since it was in draft form while I led U. Its interaction with U. What is good about the EU law? First of all, it is a law—one set of rules that applies to all personal data across the EU. Its focus on individual data rights in theory puts human beings at the center of privacy practices, and the process of complying with its detailed requirements has forced companies to take a close look at what data they are collecting, what they use it for, and how they keep it and share it—which has proved to be no small task.
Although the EU regulation is rigid in numerous respects, it can be more subtle than is apparent at first glance. Most notably, its requirement that consent be explicit and freely given is often presented in summary reports as prohibiting collecting any personal data without consent; in fact, the regulation allows other grounds for collecting data and one effect of the strict definition of consent is to put more emphasis on these other grounds.
How some of these subtleties play out will depend on how 40 different regulators across the EU apply the law, though. Perhaps more significantly, it may not prove adaptable to artificial intelligence and new technologies like autonomous vehicles that need to aggregate masses of data for machine learning and smart infrastructure. Strict limits on the purposes of data use and retention may inhibit analytical leaps and beneficial new uses of information.
A rule requiring human explanation of significant algorithmic decisions will shed light on algorithms and help prevent unfair discrimination but also may curb development of artificial intelligence. These provisions reflect a distrust of technology that is not universal in Europe but is a strong undercurrent of its political culture. We need an American answer—a more common law approach adaptable to changes in technology—to enable data-driven knowledge and innovation while laying out guardrails to protect privacy.
The Consumer Privacy Bill of Rights offers a blueprint for such an approach. Its language on transparency came out sounding too much like notice-and-consent, for example. Its proposal for fleshing out the application of the bill of rights had a mixed record of consensus results in trial efforts led by the Commerce Department. It also got some important things right. Its emphasis on the interactions between an individual and a company and circumstances of the data collection and use derives from the insight of information technology thinker Helen Nissenbaum.
Context is complicated—our draft legislation listed 11 different non-exclusive factors to assess context. But that is in practice the way we share information and form expectations about how that information will be handled and about our trust in the handler. We bare our souls and our bodies to complete strangers to get medical care, with the understanding that this information will be handled with great care and shared with strangers only to the extent needed to provide care.
The Consumer Privacy Bill of Rights does not provide any detailed prescription as to how the context principle and other principles should apply in particular circumstances. Instead, the proposal left such application to case-by-case adjudication by the FTC and development of best practices, standards, and codes of conduct by organizations outside of government, with incentives to vet these with the FTC or to use internal review boards similar to those used for human subject research in academic and medical settings.
This approach was based on the belief that the pace of technological change and the enormous variety of circumstances involved need more adaptive decisionmaking than current approaches to legislation and government regulations allow. It may be that baseline legislation will need more robust mandates for standards than the Consumer Privacy Bill of Rights contemplated, but any such mandates should be consistent with the deeply embedded preference for voluntary, collaboratively developed, and consensus-based standards that has been a hallmark of U.
In hindsight, the proposal could use a lodestar to guide the application of its principles—a simple golden rule for privacy: that companies should put the interests of the people whom data is about ahead of their own. In some measure, such a general rule would bring privacy protection back to first principles: some of the sources of law that Louis Brandeis and Samuel Warren referred to in their famous law review article were cases in which the receipt of confidential information or trade secrets led to judicial imposition of a trust or duty of confidentiality.
Acting as a trustee carries the obligation to act in the interests of the beneficiaries and to avoid self-dealing. A Golden Rule of Privacy that incorporates a similar obligation for one entrusted with personal information draws on several similar strands of the privacy debate. The Golden Rule of Privacy would import the essential duty without importing fiduciary law wholesale. The fundamental need for baseline privacy legislation in America is to ensure that individuals can trust that data about them will be used, stored, and shared in ways that are consistent with their interests and the circumstances in which it was collected.
This should hold regardless of how the data is collected, who receives it, or the uses it is put to. If it is personal data, it should have enduring protection. Such trust is an essential building block of a sustainable digital world.
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