Neil Richards, Professor of Law, Washington University
(1) Privacy is dead.
1970: Newsweek cover story: Is privacy dead? People have been declaring privacy dead for a while. Privacy law is booming, as is debate on appropriate collection, use, and disclosure of information. Privacy still exists: no cameras in bathroom (and expectation is so deep that we feel no need to disclose that there are no cameras in the bathroom). Need for rules regulating what happens after info captured is all the more important. HIPAA/FCRA govern use of information. Transparency makes consumer credit work for consumers as well as agencies. Trade secret law is a law of privacy. Data brokers like being able to operate in private and resist calls for transparency. Facebook is an enemy of privacy but likes its own: Richards visited and was required to sign an NDA saying he couldn’t describe anything that happened during his visit; tried that with a press conference too. FB believes in privacy for itself, as does the NSA.
The content of the rules is more important than ever, and we need to decide what rules to have before it’s too late.
(2) People don’t care about privacy
If people didn’t care, would you know who Edward Snowden was? Pew study shows people do care—when they can figure it out, they use adblockers, Tor, pseudonyms, give false info. Privacy paradox: the idea that we say we like privacy but just go ahead and sell our info. Dan Solove: the failure of privacy self-management. FB provides “tools” to control privacy, but they’re too hard to use. Even privacy experts aren’t good at this—there are too many of them to control. If you read all the privacy notices you encounter in a day you’d need 76 workdays. Putting burden on users to read, adjust, tweak, opt out does not work—choices and time are limited.
(3) Young people don’t care about privacy
Actually, they do. They see the benefits of connecting. They care about the immediate privacy threats to them, which is not the NSA, and not even FB. It’s their parents and teachers. FB activity is declining because old people are now there. It’s not that FB is uncool. It’s that when your parents are on FB you watch what you do. Privacy purges upon college graduation: pictures of everything they’d taken shouldn’t be on their timelines any more. Also, like older people, young people face limited privacy choices—you have to go where the people are; having less money gives them more limited choices. Reverse privacy paradox: if we don’t care about privacy, why do we talk about it so much? Privacy is the shorthand for anxiety about radical transformations in info tech we’re witnessing and how those affect our lives.
(4) If you’ve got nothing to hide you’ve got nothing to fear.
Posner said: privacy is just a right to conceal discreditable facts about ourselves: fraud on the market for humanity. But we all have something to hide. Not just toilet activities or private parts. Tyler Clementi killed himself after his sexual activities were secretly recorded and shared.
People behave differently when they believe they’re under surveillance, or even behaving in front of a picture of eyes. Is the solution for all of us to watch each other? No. Privacy in social space allows us to figure out who we are, play with identity as Tushnet discussed.
Privacy has power effects: information can be power over. NSA collecting information on people viewed as pro-radical Islam, creating a chart of the porn they liked, planning to threaten disclosure to silence them. FBI did the exactly the same thing to MLK Jr., believing him a Communist agent.
Target knows you’re pregnant: the intent wasn’t to be creepy; it was to get power, here commercial power.
(5) Privacy is bad for business
User data is valuable. If this is just a transaction, we’re paying for FB without dollars, and that’s misleading. Is privacy a tax on profitability? Well, is having to pay wages to your employees a tax on profitability? It’s a cost/input. Privacy is ultimately good for businesses, which depend on trust. Trust/confidentiality can garner a competitive advantage.
How we frame/talk about privacy matters. Free services, Big Brother, oil, death of privacy matters for diagnosis and solutions.
Moderator: Fred Vars, Associate Professor of Law, The University of Alabama
Qs: is that what we really mean when we say privacy is dead? Don’t we mean that the scope of available info about individuals is much greater, even if rules still exist? Would a more satisfactory response to the myth be that the percentage of total information that’s private is smaller but not because privacy is dying but rather than the amount of public information has skyrocketed?
Richards: goes to discourse. Labeling and framing: when it ceases to be private, information does not necessarily become public. A lot of baggage comes with the term “public.” Info is shifting from the superprivate state to the less superprivate, but that doesn’t mean it’s all out there and unregulable. Managing flows becomes more important.
Sarat: Contrast Haggerty’s point: privacy for excretory functions remains. But the social domain has dramatically shifted. Just because it’s not fully public doesn’t mean it’s private (against the gov’t, advertisers, etc.).
Real point of disagreement is whether rules still matter a lot. Haggerty says no. You say yes.
Slippage between language of secrecy and privacy—privacy is even more a matter of power.
Richards: as a sociologist, the goal is to explain and describe and diagnose complex social phenomena. As lawyers, our job is to fix things and talk about rules and prescriptions. Haggerty is right about the mean shift from relatively private to relatively public, and the risk that it will become dangerously public. Also agrees that legal rules/privacy rules can end up becoming problems themselves, making it easier to give up privacy—FISA court gives stamp of democratic approval. But sometimes legal rules have unintended effects, and even fail; his departure is the hope that we can have good rules that actually work and don’t become privacy theater.
Q: seems like the only people who really care about privacy are those who want to live off the grid—no phone, no connection to public services. Tech is too pervasive for privacy to exist. Security breach at Target = no privacy.
Richards: we continue to use credit cards because the benefits outweigh the costs, but the costs are still there. Humans are wired to be intellectually lazy, and existing concepts are easily blurred. Need better encryption, among other things. But clients still care about confidences—they want their information kept private. (We act as if the NSA isn’t listening, I would say!) Regulation can prevent certain uses. Cultivate ethical sensibility among info tech engineers. When doctors started to be able to cure, we had ethical regulations about their responsibilities; when lawyers could change legal status, they developed ethics; software engineering needs constraints too, through professional ethic of utilizing great power.
My Q is about the last myth: Silicon Valley libertarianism; why doesn’t market reasoning completely dispose of your responses—we’ve bargained/there’s consent; minimum wage laws are bad; if privacy is good for business we will adopt it precisely to that extent, and no more.
Richards: My audience is not so much the Randians as the non-true believers, as well as consumers. There are different kinds of privacy/rules. Some are at times flatly opposed to profitability. “You may not have a free service” would make things less profitable. Other protections allowing users real control, or regulating the way ads delivered, or regulating how information is safeguarded, are essential. Even where there are actual tradeoffs, by looking at the rules in the broader context you can see the complexity of the problem and that we’re looking for decisions about when we’re allowing information to flow unimpeded. Less concerned with rules that come out of the ethical conversation than about having a conversation about what ethical rules would be, as we did about what the rules for workplace safety should be.
Austin: to what extent is privacy a real live analytic tool any more? Yes, we need rules, but does it make a difference to call them privacy rules as opposed to information rules? Confidentiality won’t get us very far; it’s narrow.
A: doesn’t like term privacy. We need to work on the intermediate concepts. People keep looking for the harm rather than figuring out rules. He has tried to pick some concepts and start from there: informational privacy/privacy in the formation of beliefs and political commitments—the goal is to defend kinds of information rules. In security, we may want to rely on economics—our interest in credit card security is more in not losing money. In surveillance, we need to look at balance between political liberty, public safety, and risks of corruption from unreviewable security apparatuses. Just not privacy as secrets or on/off binaries.