Sir,
This is a question for which hard answers seem difficult.
Nevertheless, below are a few paragraphs from my current book
draft. The draft does not now include Ayn Rand's pronouncement
that "Civilization is the progress toward a society of privacy.
The savage's whole existence is public, ruled by the laws of
his tribe. Civilization is the process of setting man free
from men." In any case, I concur with you that it would indeed
be prudent to nail down an answer to your question well before
science allows us to read the mind externally and without reserve.
--dan
-----------------8<------------cut-here------------8<-----------------
There are two ways to define privacy, and neither
involves the squishiness that begins "a reasonable
expectation of..." The first is what privacy means as a
civil construct -- what Brandeis described[1] as "[T]he
right to be left alone -- the most comprehensive of rights,
and the right most valued by civilized men." The second is
what privacy means at its operational core: the effective
capacity to misrepresent yourself with de minimus side
effects.
As to the first, privacy is something that society,
meaning you, give the individual, meaning me. When privacy
will not be given and is thus not available, secrecy is
something I can take for myself -- secrecy is a functional
backstop for the absence of the civil construct.
If privacy is a gift and secrecy is a taking, then the
possibility of privacy is inversely proportional to the
numbers of those who must do that giving for the state of
privacy to prevail, hence privacy is inversely proportional
to interconnectedness. This is consistent with a view of
risk as proportional to dependency where dependency, in
turn, is proportional to non-optional interconnectedness.
This is where the all-wired world's "information wants to be
free" is most robustly anti-privacy.
As to the second, "Privacy is the power to selectively
reveal oneself to the world."[2] which means that in
choosing what to reveal, however idiosyncratically we
choose, we demonstrate our liberty. As if that were not
enough, "Philosophical and legal analysis has identified
privacy as a precondition for the development of a coherent
self."[3] which asks the question of whether a person whose
life experience has been one without privacy can even
comprehend the desire of those who prefer privacy. As a
matter of prediction, raising the young to not expect
privacy foreordains that when it is their turn to run
society they will be as happy despite privacy's absence, and
leglislate accordingly.
It is said that the wonderful thing about a small town
is that you know everyone, while the terrible thing about a
small town is that they all know you. Indeed, a coherent
argument for a "transparent society"[4] can be made, one
where there are no secrets, where there is no privacy, where
everyone knows everyone else's business, where unsolved
crime is very nearly impossible, where neither need nor
triumph is invisible, a place where everything that is not
self-incriminating is therefore public and yet, at the same
time, it is that surveillance which preserves liberty. Even
were you able to craft the consensus that we all would each
tell each other the contents of our hearts while leaving our
cameras on at all times, I'm afraid that in such a utopian
society you would soon find some were more equal than
others. In short, I reject the one extreme, that of glass
houses for us all.
I have come to the conclusion that in all things it is
bigness that is the enemy, neither ideology nor biology nor
theology but bigness. Big business, big government, big
labor, big money, big crime, big media, big religion --
their bigness predisposes them to predatory behavior. It is
they who own the bulldozers that unlevel the playing field.
The two economists Adam Smith and Ronald Coase
described the nature of our economic interactions -- Smith
with his millenial ideal of small producers trading amongst
themselves in the mutual self-interest of wealth
maximization,[5] and Coase with his explanation of why the
millenium does not arrive.[6] Coase observed that
economically viable firms expand until intra-firm
coordination costs exceed inter-firm transaction costs.
Putting it in biologic analogy, cells grow until their
surface to volume ratio crosses a survivability threshold.
It is unarguably clear that although the Internet did
spectacularly lower transaction costs, it lowered
coordination costs more. thus enabling the greatest
economic concentration in world history.
It is precisely this side effect of the global
concentration of the control of power that must be the
foundation of our thinking about privacy. As the ever
prescient Phil Agre put it,[7]
The global integration of the economy is ...
commonly held to decentralize political power by
preventing governments from taking actions that can
be reversed through cross-border arbitrage. But
political power is becoming centralized in equally
important ways: the power of national governments is
not so much disappearing as shifting to a haphazard
collection of undemocratic and nontransparent global
treaty organizations, and the power to influence
these organizations is likewise concentrating in the
ever-fewer global firms.
to which I might add the observation that governments
everywhere are deputizing those global firms as outsourced
enforcers of government edict.
If the reason I reject the transparent society is that
I acknowledge my inability to sufficiently police its
stronger members, then the most important thing I can do is
to protect my privacy at all costs. The loss of privacy is
irreversible for information is never un-revealed. Privacy
is therefore the paragon of Hume's conjecture: "It is seldom
that liberty of any kind is lost all at once."[8] In the
face of the snow-balling bigness of the institutions of
globalized human life, we must reserve privacy rights
explicitly so that we may misrepresent ourselves to those
against whom we have no other defense, against those for
whom our name is a label on data collected without our
consent.
Consider your own life. Perhaps there is indeed no one
fact about you that you wouldn't good-naturedly share with
the world if I asked you politely, but by the time I got to
twenty questions, few of you would still think this an
amusing parlor game. The risk to you grows as the product
of the number of personal facts times the number of
potential recipients, but it is hard to fabricate an example
where the benefit grows as fast even if you are a Hollywood-
friendly politician. On purely risk management grounds, any
finite tolerance for risk absolutely caps the amount of
information you will want in play.
This has nothing whatsoever to do with whether you have
anything to hide.[9] If for no other reason, we must make it
understood that just as "...there is nothing sinister in so
arranging one's affairs as to [minimize] taxes,"[10] neither
is there anything sinister in so arranging one's affairs as
to minimize observability. Of course the technologic tools
of privacy can be misused, but tell me what is it that is
marvelous that can not also be misapplied?
A wise man of my acquaintance, after a career in
Federal law enforcement, told me my arguments were typically
naive. He said that my (your) choice is not between Big
Brother or no Big Brother, rather it is between one Big
Brother and lots of Little Brothers. He suggested that I
think carefully before I choose.
I've thought about that a lot. I've thought about the
comfort of being taken care of against the unease of having
to be. I've compared the low cost of "one size fits all" to
its correspondingly low benefit. I've thought hard about
the proposition that the price of freedom is the possibility
of crime. I've accepted that there is no such thing as
righteousness if there is no possibility of sin. I conclude
that privacy is worth its price, that near absolute privacy
is indeed the worst of all social constructs, except for all
the others. To this we will shortly return.
-------------
[1] Judge Louis Brandeis, OLMSTEAD V. U.S., 277 U.S. 438
(1928)
[2] Hughes E, "A Cypherpunk's Manifesto," 9 March 1993
[3] Agre P, "The Architecture of Identity," Seminar on
People, Computers, and Design, Stanford, 1 May 1998
[4] Brin D, _The Transparent Society_, Perseus Books, 1998
[5] Smith A, _The Wealth of Nations_, W. Strahan, 1776
[6] Coase R, "The Nature of the Firm," Economica, v4 n16
p386-405, November 1937
[7] Agre PE, "The Market and the Net: Personal Boundaries
and the Future of Market Institutions," Telecommunications
Policy Research Conference, 6 October 1998
[8] Hume D, _Essays Moral, Political and Literary_, 1742
[9] Solove D, _Nothing to Hide_, Yale Univ. Press, 2011
[10] "Over and over again, the courts have said there is
nothing sinister in so arranging one's affairs as to keep
taxes as low as possible. Everybody does so, rich and poor,
and all do right, for nobody owes any duty to pay more tax
than the law demands. Taxes are enforced exactions, not
voluntary contributions. To demand more in the name of
morals is mere cant." -- Judge Learned Hand, COMMISSIONER
V. NEWMAN, 159 F.2D 848, 850-851 (CA2 1947)
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