It’s About Rights
The creation of the internet and the Digital Revolution is producing a representation of you based on the data that you and your devices produce. This revolution needs to acknowledge the creation of a virtual Digital You and yield to it the same privacy rights that the real physical you has.
The American Revolution and the subsequent founding of The United States crystalized the social contract of the new country. The protections of life, liberty, and the pursuit of happiness were laid down, and boundaries of the federal government and unalienable rights of the individual were codified. These unalienable rights in the physical world were legally protected by the government, and individuals had the right to protection against unlawful searches and seizures.
This foundation is the basis for our privacy laws today specifically looking at the Fourth Amendment which gave people the right to be secure in their persons, houses, papers, and effects. The Fourth Amendment was later expanded by court interpretations and applied to electronic intrusions such as wiretapping, and the FCC extended applications to commercial intrusions.
We are now several years into the Digital Revolution, but our ethics and rights have not kept pace with the technology. There is a battle being fought over Digital You, and without a translation of privacy rights protection to the digital realm, we will lose this war.
The Current State
I will leave out the discussion of how Government handles our data here and focus on Technology and Commerce who are waging war on Digital You’s privacy rights.
How did we arrive at this point in time that effectively has allowed Technology and Commerce to violate Digital You’s privacy with no real recourse to date? The following quotes should have been a warning sign:
1999 – “You already have zero privacy. Get over it.” – Scott McNealy CEO of Sun Microsystems Inc.
2009- “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” – Eric Schmidt CEO of Google
Unsurprisingly with these views, Digital You is being built without your consent, control, and in most cases without your knowledge by Technology and Commerce. How do we take back our unalienable rights that were never consented to be removed in the digital world?
“No Harm, No Foul” vs. Rights
Today, the United States handles the oversight between Commerce and Consumers via the FTC. The FTC was commissioned to ensure adequate competition among businesses and that consumers were treated fairly by businesses. This mandate worked in the physical world prior to Technology’s communications advances because invasions of privacy had little to do with commerce. If someone violated your physical privacy, the trespass was seen. There was a clear boundary between the areas of commerce and private property. The Bill of Rights addressed private property and the FTC governed commerce.
The Commerce driven Digital Revolution now bleeds into privacy issues, and the FTC is not equipped with adequate legislation to enforce privacy based on rights. In order to seek redress by the FTC, courts require proof that you have been harmed by a commerce practice. This plan works in the physical world where an aggressive salesman might receive a warning shot if he trespassed on private property. Violations were seen by the individual and they were allowed to protect their private property.
This agreement doesn’t translate into the digital realm where tech companies routinely peer into our private lives uninvited and undetected. We have no way of defending Digital You from privacy violations where we are unarmed and unaware. The FTC is of zero use in this case because they are not equipped to enforce rights.
Rights vs. “No Harm, No Foul” Illustrated
Let’s look at a physical example of a privacy issue to illustrate how something is approached based on either a rights issue or fair play. You have a home and are away for the day. During that time while you and your family are out, someone wanders into your home, opens the door, walks inside and looks around your house. From this view, the intruder surmises that you are of moderate wealth, married, and have 2.5 kids. They understand that you like a variety of music styles, what political party you belong to, and your religious preference. This person then walks out of the house and records his insights into your lives. Then you come home and discover that someone has entered into your house and looked around at all of your pictures and rooms. You learn from your neighbor who it was and you are upset that your privacy has been violated by someone trespassing on their private property and private effects.
The question is has a crime occurred in this illustration? In real life, the answer is yes, there is a crime of trespassing without consent or unlawful entry. The basis of this charge is the Fourth Amendment and other clarifying laws. Now let’s say that the person who improperly walked on to your property was a businessman who was conducting his own research to see what kind of goods you would really need and want so that he could bring them to you to buy. Would this change your verdict? In the eyes of the law, this would not change the verdict, the man entered the property without consent or permission and was trespassing regardless of intent or harm. It is a rights issue and a law issue.
If the FTC was in charge of enforcing the privacy of this home, there would be no way to bring a charge against the trespasser unless the property owner could prove that they were harmed by this unconsented act. This would be ridiculous, but this is exactly the state of how Technology and Commerce are being regulated in areas of Digital You. Fair play says that as long as tech companies don’t cause demonstrable harm, they can look at whatever they want wherever they can. If privacy is a right however, you shouldn’t have to prove that harm was done to Digital You, it is enough that there was a trespass without consent to bring charges against the trespasser.
Taking Back Our Rights
Letting the FTC determine what can be done and what can’t be done via lawsuits will not ensure our rights. Enforcement by fair play lawsuits are inadequate to protect rights which in the physical world are constitutional guarantees. We need real legislation defining the rights of Digital You so that it is not left in the hands of commerce regulators who do not deal with enforcing and defining unalienable rights.
Privacy Rights are one of the few truly non-partisan issues, and yet, the public perception and debate is hobbled by half informed rhetoric to score points over the opposing party rather than the debate of statesmen. Due to this inappropriate polarization and the modern habit of passing lengthy bills with inadequate public review, our best course would be to review the EU’s GDPR as a starting point, and Americanize it. Legislation needs to transfer physical Constitutional privacy rights to our data rights and set up a framework that will establish privacy by design as a guiding principle. Tech/Commerce will have to get consent to use our data and be held accountable to secure that data.
Americans should be allowed to choose how Digital You is created and used in a way that is informed, gives them control over Digital You, and with transparency into when and how Tech/Commerce uses our digital footprints. These rights have to be protected by legislation with clear outcome guidelines backed up with significant penalties to ensure adequate data security and privacy by design are baked into all digital handling of our data.
Recent high profile data breaches continue to highlight the need. Tech/Commerce giants like Apple, AT&T, and even Facebook are suggesting we need thoughtful legislation. The time to translate physical rights to digital rights is now. The next decade’s quote should read:
2019 – “We no longer settle for choosing between privacy and technology. Our technology can and will complement our privacy.”
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