I once was in a two day debate with my college roommate where we knew that we were probably close to agreement, but mentally, we couldn’t establish what our points of departure and agreements were with any precision.
We finally sat down and defined our terms and realized that we were arguing with the same set of terms, but with different definitions attached to those terms. No wonder we couldn’t reach any agreement. The lesson learned was to define your terms at the beginning of the debate, and you can probably save some time and anguish in the process.
It just recently dawned on me that I have been designing, advocating, and discussing privacy issues in preparation for GDPR with no real working definitions of what privacy is. With that lesson learned, what do we really mean by the right to privacy?
The Current State of Understanding Privacy
It is tough to respect privacy if you only have a vague notion of what it is. I think that this lack of a common working definition contributes to an approach to GDPR and privacy that only sees privacy as a compliance box to be checked instead of something to be valued and protected.
Many of us who live in countries with a history of respecting personal privacy have forgotten its importance. What was once self-evident has been clouded by the immediate benefits of relative freedoms we now enjoy. Compound this forgetfulness with social media’s constant blurring between private and public, the paparazzi press, and the politics of personal destruction, and it is no wonder we are unclear about what privacy is and the value of it.
It would be beneficial to step back and define some basics of privacy. If we don’t, we may again be facing some self-evident truths about privacy with painful reminders of Nazi Germany and the Stasi. Those who lived through those oppressions understand the value and self-evident nature of the need for privacy.
The Essence of Privacy
Allen Westin, the modern pioneer of electronic privacy, wrote
“The essence of solitude, and all privacy, is a sense of choice and control. You control who watches or learns about you. You choose to leave and return.”
Your right to privacy is about controlling the boundaries you set in different relationships to know you. We do this every day in the physical world as we relate differently to different people and organizations in different settings and contexts.
Anne Wolfe, a global privacy consultant, defines privacy in an article ‘What is Privacy and Why Should I Care About it’. In translating this concept of privacy to the digital world, she says
“Privacy is the right of the individual to maintain control over their personal information.”
Instead of thinking that we are merely processing data, we should look at our data for what it really is – the digital representation of ourselves. The data that you and your devices produce create this Digital You. If we looked at how we treat Digital You instead of just data processing, a lot of the ambiguity in the GDPR would resolve itself, and the appropriate use of data would be closer to self-evident than it currently is.
With the definitions of privacy given by Westin and Wolfe, we need to look at some false equivalencies that exist in the public conversation about privacy.
Confusing Privacy with Secrecy
One common sentiment that is often voiced is “I don’t worry about privacy because I have nothing to hide”. A similar expression was captured in 2009 by the now famous statement of then Google CEO Eric Schmidt who said “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
Both of these statements on the surface seem to carry a tone of moral righteousness which sounds like a reasonable approach to digital privacy. Yet, on the other hand, there is something in these statements that provokes our intuitive sense of what privacy is.
Again, the poignant thoughts of Allen Westin clarify what is happening in this seemingly Zen tension. He states in his book Privacy and Freedom
“Don’t destroy privacy. Terrorists of all sorts destroy privacy both by corrupting it into secrecy and by using hostile surveillance to undo its useful sanctuary.”
Both of the prior statements in reality destroy privacy by corrupting it into secrecy and undo privacy’s useful sanctuary. They both bait and switch the word privacy with the definition of secrecy. The former is an unalienable right while the latter is a cover for wrong doing. In so doing, these prior statements devalue privacy and confuse any discussion about the need and preservation of privacy in the digital realm.
Dave Krueger quipped appropriately “The Fourth Amendment wasn’t written for people with nothing to hide any more than the First Amendment was written for people with nothing to say.” John Adams observed that it was this right to privacy that the crown trespassed on that sparked the American Revolution. The Colonists were ready to die for rights of privacy. What are some of these useful sanctuaries of privacy?
The Usefulness of Intimate Relationships
Thoughts and relationships are intertwined in privacy. We all have blind spots, prejudices, wrong assumptions and even mixed motives and wrong inclinations.
The privacy of thoughts have to be allowed to be shared in private conversation with others in our intimate circles without fear of exposure. These relationships allow for our foibles to be corrected, our thoughts to be refined, and weaknesses to be exposed without personal injury or public harm.
Everyone needs the feedback of honest and good friends to be done in private so that we grow and bring forth better ideas. This is one useful sanctuary of privacy that Allen Westin speaks of that is of benefit to both the individual and society as a whole.
Privacy Protects Against Hostile Surveillance
Mark Rotenberg, the Executive Director of the Electronic Privacy Information Center, commented on Westin’s seminal book saying “Part of ‘Privacy and Freedom’ is the argument that privacy enables freedom.”
Privacy enables the First Amendment rights of freedom of speech and freedom of religion as it protects the individual from hostile surveillance.
John W. Whitehead writes “… encroachments on individual privacy undermine democratic institutions by chilling free speech. When citizens–especially those espousing unpopular viewpoints–are aware that the intimate details of their personal lives are pervasively monitored by government, or even that they could be singled out for discriminatory treatment by government officials as a result of their First Amendment expressive activities, they are less likely to freely express their dissident views.”
This chilling effect occurs because privacy is an unalienable right and an essential component of our humanity. It is tied up with our personality and freedom so much so that it takes priority over free speech. We reflexively retreat from public expression to maintain this freedom of thought, personhood, and the big three pursuits of life, liberty, and happiness.
Privacy Protects Our Psychological Wellbeing
It is self-evident when natural privacy boundaries are crossed in social media that psychological well-being is impacted. Look at our kids and the damage social media can cause in the case of bullying or over sharing.
Allen Westin wrote on the importance of privacy to individuals saying
“Safe privacy is an important component of autonomy, freedom, and thus psychological well-being, in any society that values individuals.”
It is not without reason that the Germans have the most strict data privacy laws after the Nazi and Communist rule. Sloan and Warner write in the Minnesota Journal of Law, Science & Technology “The 1950 to 1990 East German Stasi illustrates the threat to self-realization. The hidden, but for every citizen tangible omni-presence of the Stasi, damaged the very basic conditions for individual and societal creativity and development: Sense of oneself, Trust, Spontaneity.” The importance and value of privacy are still self-evident to the Germans and their privacy laws reflect their awareness of its value.
Westin and Wolfe have provided good working definitions of what privacy is, and it has been distinguished from secrecy. Privacy enables intimacy, freedom of speech and religion, and self-realization. These definitions and usage should provide a baseline to guide future discussions on data usage with more clarity. I hope they will lead us to the right use of our data, we could all use some sanctuary.
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