End of privacy articles…. more jeremiads..

July 23, 2014 |

There have been a few  articles on “the end of privacy” in the recent past including The Monthly and Thomas Friedman.  While it is useful to have an ongoing discussion on privacy, in particular the legal concept and protections, all to often the commentary and reportage is reduced to a jeremiad about how privacy is lost and never to be regained.  Generally good copy on an emotional level but analytical dross.

In the Monthly’s The end of secrets, Privacy is fast becoming a quaint old-fashioned thing while trying to be an interesting overview of the concept of privacy, the role of government surveillance, its abuse, the cult of celebrity and its conflict with privacy it ends up being a very well written jumble.  It daintily steps onto the various touchstone issues and then moves onto the next.  But well polished sentences do not a strong analytical piece. It is at best a taste of the issues.

It provides:

On a Sunday afternoon in late April, in a grand old ballroom in Melbourne, I read aloud a love letter I’d written to a man I call “my mysterious stranger”. The man, never named in the letter, was not present. I have never shown it to him. I wrote it to share with some 400 other strangers, mysterious in their own right but all aware that what goes on in the ballroom stays in the ballroom. No recordings, no tweets. Such are the ground rules of Marieke Hardy and Michaela McGuire’s Women of Letters events: though open to the public, they’re gloriously private.

The notion of the “private” has in recent years become almost as old-fashioned as a ballroom itself. When Hardy and McGuire took Women of Letters on the road in the United States, some of the American participants were initially surprised, almost uncomprehending, that the sessions weren’t recorded and put online. In the context of a (now global) culture that measures the value of almost everything in “eyeballs”, “hits” and “likes”, it seemed almost perverse to be doing something interesting and special purely for the benefit of the people in the room. Privacy has acquired something of the air of its Chinese translation, ?? yinsi, which connotes the illicit, the secret, even the conspiratorial.

The British tabloid journalist Paul McMullan put it most memorably: “Privacy,” he said, “is for paedos.” And so News of the World, his employer, righteously hacked the phones of not only celebrities, royals (155 hits on Kate Middleton alone) and politicians but also a young murder victim, survivors of the London terrorist attacks and the families of British soldiers killed in Afghanistan. McMullan’s series of articles in 1995 about an actor’s daughter who was addicted to drugs and begging on the streets led to his subject’s suicide. While McMullan later expressed regret about her death, he continued to insist, as he told the Leveson Inquiry into the culture, practices and ethics of the British press in 2011, that privacy is “the space bad people need to do bad things in”. Slate’s Amanda Hess has written of how social media has helped to blur the line between public and private: “The obliteration of the private sphere is very convenient for journalists.” Not so convenient now, of course, for News of the World’s former editor Rebekah Brooks and her associates, who are on trial over charges related to the phone-hacking scandal.

Discussion of the roles that the media, business and government play in both the loss and protection of privacy was already heating up when Edward Snowden dropped his bombshell one year ago this month. As Jillian C York of the Electronic Frontier Foundation puts it, 5 June 2013 was “a day that may have changed how we view privacy forever”.

We now know that with the help of Australian, Canadian, New Zealand and UK intelligence agencies, the US National Security Administration set up a system capable of spying on each and every one of us. It is able to hoover up “metadata”, including phone numbers, email addresses and even the places you visit with your smartphone in your pocket. The NSA’s general counsel Stewart Baker has said, “Metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.” When the legal expert David Cole quoted Baker’s remarks at a recent debate with General Michael Hayden, the former director of the NSA and the CIA, Hayden confirmed that this was “absolutely correct”, and, as Cole wrote in the New York Review of Books, “raised him one, asserting, ‘We kill people based on metadata.’”

An article by Jody Avirgan for Slate titled ‘Every Scary, Weird Thing We Know the NSA Can Do’ lists a few more of its projects: tracking hotel bookings, setting up fake social media accounts and even fake internet cafes, monitoring conversations in gaming networks, and using radio waves to hack into computers that are not connected to the internet. When the Australian Signals Directorate hacked the phones of the Indonesian president and his wife, it stamped its reports to the NSA with its motto, “Reveal their secrets – protect our own”.

Australia’s attorney-general, George Brandis, professes himself more tested by Snowden (a “traitor”) than by the global program of surveillance Snowden unveiled. As Brandis recently remarked on a visit to Washington, having “a better informed appreciation of the capabilities and danger of sophisticated modern terrorism” than most, he would like to see in fact “fewer limitations on intelligence gathering in the name of public safety”. Our chief law official dismissed “legalistic” objections to widespread surveillance, along with philosophical ones, as a “luxury” that he, being responsible for public safety, could not afford.

In the late 18th century, the English philosopher Jeremy Bentham came up with a revolutionary idea to tame the criminal will: the Panopticon. The name was inspired by a giant of Greek mythology, Argus Panoptes, he of 100 eyes. Panoptes served Hera, the jealous wife of Zeus. Zeus turned his lover, the nymph Io, into a heifer to escape detection by Hera. But Hera sent Panoptes to watch over Io; even when he slept, some of his eyes remained open. (The story did not end well: Zeus had Hermes slay Panoptes.)

Bentham imagined the Panopticon as a circular prison in which a single guard occupied a central “inspection station” where he could keep an eye on all the prisoners. An individual would never know when he was being watched and had to assume at any particular moment that he might be. “To be incessantly under the eyes of the inspector,” Bentham wrote, “is to lose in effect the power to do evil and almost the thought of wanting to do it.” A similar logic is in play wherever municipalities have installed CCTV cameras as a countermeasure to crime and terrorism; as the British government slogan put it: “If you’ve got nothing to hide, you’ve got nothing to fear.” Concern about surveillance, they might have said, is for “paedos”.

On 3 April 2011, security forces arrested the outspoken Chinese artist and blogger Ai Weiwei at Beijing’s international airport and held him for 81 days without charge. As far as he was concerned, he had nothing to hide. But he had much to fear. Ai has since described how during those 81 days he was watched 24 hours a day in detention by no fewer than two guards. They watched him eat. They watched him shower. They watched him sleep. They watched him shit. They, in turn, were monitored by three surveillance cameras in the cell, making sure they never spoke or acted out of line.

One year after Ai was released into house arrest, the police still had more than a dozen cameras trained on his home in Beijing and agents stationed on the street outside. On 3 April 2012, the artist decided to fight surveillance with surveillance, launching WeiweiCam, a self-monitoring project, using four cameras in his home. It was a kind of reverse Panopticon, attracting, as it transpired, some 5.2 million views of a single individual. Less than 48 hours later, the authorities forced him to shut it down. He also made a heavy-metal video, ‘Dumbass’, that revisits his prison experience and another video in which he dances to Psy’s ‘Gangnam Style’ with handcuffs on. Yet for all the humour in his responses, Ai has described the experience of surveillance, with all the loss of privacy it has entailed, as extremely traumatic. He has written in the Guardian that Snowden’s revelations shocked him to the core and that he characterises global surveillance as a threat to “civilised society” itself.

Yet for all the discussion around its value, loss and protection, privacy is notoriously resistant to definition – we usually only realise what it is when it’s been taken away. My dictionary defines it in the negative, as a “state in which one is not observed or disturbed by other people”, as well as freedom from “public attention”. The co-founder and CEO of Facebook, Mark Zuckerberg, who has made a lot of money from downgrading the public’s regard for privacy, has pronounced it to be little more than an outdated “social norm”. Yet surely even Zuckerberg occasionally hooks a “do not disturb” sign on the door of his hotel room. He certainly kept his honeymoon plans (to stay at the Portrait Suites hotel in Rome) private – as he had every right to. The concept of privacy includes not just the information we share (voluntarily or otherwise) with others and claims over property and territory but also control over who touches, views or comes near our physical selves.

The word “privacy” derives from the Latin privatus: the sphere over which public institutions have no say. And yet, as Wolfgang Sofsky points out in his book Privacy: A Manifesto, the public and private spheres were never entirely distinct. Even in ancient Rome, people’s personal lives, including affairs and morals, were considered a legitimate subject for public discussion and concern. The medieval Church expressed views on how married couples ought to disport themselves, even in the privacy of the marital bed. Among the private matters with which Renaissance states concerned themselves were the length and decorations of people’s robes. Eighteenth-century French revolutionaries thought it reasonable for the state to ban individuals from getting married in religious ceremonies and using the polite “vous” when addressing someone in private conversation. In Australia today, we argue over whether or not the state should be able to interfere with the decision of someone with a terminal illness to end his or her own life.

Daniel Solove, an American expert on privacy law, writes that even where the law seeks to protect privacy, it has trouble pinning down what exactly it is trying to protect. A key phrase in the seminal American legal work on the subject, ‘The Right to Privacy’ by Samuel D Warren and Louis D Brandeis, published in the Harvard Law Review in 1890, was “the right to be let alone”. And yet this reflects only one position in the spectrum of possibilities.

As André Dao has written in the New Philosopher, even as Americans moved towards a definition of privacy that drew a line between themselves and government, European jurists came to conceptualise privacy in terms of human “dignity”. This is probably why the highest court in the European Union recently ruled that individuals have the “right to be forgotten” – specifically to ask Google to remove certain kinds of information about them from its search engines. The case, like much contemporary legal debate about privacy globally, is also framed around the issue of “data protection”.

In a chapter of his book The Net Delusion titled ‘Why Databases Are Better Than Stasi Officers’, Evgeny Morozov cites an experiment from 2006 by a technology consultant who in less than a day was able to access the wishlists of 260,000 American customers on Amazon, find their addresses and even note which ones had ordered the Koran. Morozov also discusses audiovisual recognition software so powerful that it can theoretically identify demonstrators in a crowd. “In the past,” writes Morozov, “the KGB resorted to torture to learn of connections between activists; today, they simply need to get on Facebook.” Stores of personal data are a honey pot for criminals and terrorists as well.

The world was a simpler place in 1710 when the original British Post Office Act set out what would become fairly standard expectations globally. It required every postal employee, whether in Great Britain or the colonies, to swear that they would not “cause, produce, permit, or suffer to be opened” any letters that came into their hands. It was not so long ago that data protection pretty much amounted to keeping your letters and diaries in a safe place. To read or share what someone had written in a letter or journal without permission was to violate someone’s privacy. Adrienne Rich was one of many to condemn her fellow poet Robert Lowell in 1973 when he published the letters of his estranged wife, the writer Elizabeth Hardwick, despite her begging him not to do so. “What does one say,” Rich reflects, “about a poet who, having left his wife and daughter for another marriage, then titles a book with their names, and goes on to appropriate his ex-wife’s letters written under the stress and pain of desertion, into a book of poems nominally addressed to the new wife?”

Today, the moral clarity displayed in Rich’s words is almost as rare as the pen-on-paper letter itself. The widespread abandonment of diaries for blogs and the post for email or postings on social media platforms, as well as the ubiquitous sharing of deeply personal material by electronic means, from sexting to reality TV, have radically shifted the boundaries of the privatus. Faced with class action by Gmail users outraged by Google’s practice of scanning their private messages to deliver targeted advertising, Google’s lawyers argued that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”. It’s also a line of argument used by lawyers representing “revenge porn” sites that host intimate photos and videos of women submitted by vengeful ex-boyfriends. You might as well argue that if Elizabeth Hardwick hadn’t wanted her husband to publish her letters she shouldn’t have written them to him in the first place.

In the 1980s, a French friend was speaking to a colleague in her room at a Beijing hotel. She mentioned that she had a personal letter to give one of the Chinese officials they were meeting the following day to discuss some business. She would look for the chance to pass it to him discreetly. As the meeting was winding down, the leader of the Chinese side asked if there was anything else the French pair wished to discuss. When my friend said no, the man asked, “But don’t you have a letter to give Mr X?” She handed it over, too stunned to dissemble and sick to the stomach at the thought of the trouble that this innocent letter might cause to her friend.

The leader of the Chinese side could have chosen to say nothing. He could have allowed Mr X to receive the letter secretly, later demanding that he hand it over, significantly compounding the crime of receiving it. This way, however, he sent his message to both my friend and Mr X: the inspection station is manned.

Where the state is strong but the rule of law is weak, “crime” is an elastic term. The Chinese state labelled the mass peaceful anti-corruption and pro-democracy demonstrations that swept Beijing and many other Chinese cities in 1989 “counter-revolutionary riots”. China’s cities today bristle with CCTV cameras; there has been nothing quite like 1989 since. The effect of the Panopticon can too easily move beyond simply prompting those under surveillance to lose the power or will to do evil: it can cause them to lose the power or will to fight evil. Depending on who runs the Panopticon and for what purpose, that can be the whole point. As Harper’s contributing editor Garret Keizer argues in his book Privacy, there’s a thin line between the intended result of the Panopticon and a state of “learned helplessness”.

In an article written for Rolling Stone in 2008, Naomi Klein observed that “China is becoming more like us in very visible ways (Starbucks, Hooters, cellphones that are cooler than ours) and we are becoming more like China in less visible ones (torture, warrantless wiretapping, indefinite detention, though not nearly on the Chinese scale).”

Or to put it another way, quoting Mohamad Tabbaa, a PhD candidate in criminology and law at the University of Melbourne: “Welcome to the world of a Muslim, post-September 11.” In an article titled ‘Suddenly, White People Care About Privacy Incursions’, written for Salon shortly after the first of the Snowden revelations, Tabbaa notes that “Muslims do not simply fear that they are under surveillance; they know it – and even when it’s not true.” His next sentence echoes Keizer’s observation above: “The psychology induced by the fear and knowledge of being constantly watched is crippling.” The Panopticon is more likely to seem a good idea when it’s not you who has been put inside it.

It’s true that some cultures have a lesser attachment to privacy than others. Privacy International’s report from 2012 on privacy and surveillance laws, practices and policies in Thailand, for example, notes that privacy has not traditionally been given a high value in Thai culture, and that from the time of the ancient Siamese states, the polity has always kept close tabs on its citizens. And yet according to its research, those in the “upper socioeconomic strata” in Thailand have become increasingly concerned about the threats to privacy represented by the collection and use of personal data.

Similarly, for all the cultural baggage around yinsi, many Chinese today would agree with Ai Weiwei that privacy is a “basic human right”. That yinsi never wholly captured the full sense of privacy in China is evident from the fact that the ideal Chinese home, from ancient times to the present, is a walled compound in which even the gardens are hidden from public view and even the windows face a central courtyard. In fact, from a Chinese cultural perspective, a typical Australian home, with an open front lawn, minimal fencing and outwards-facing windows, betrays an almost unimaginable carelessness about privacy. The greater a person’s wealth, in China as elsewhere, the higher the walls (or larger the grounds) of the home; gated communities have become popular there in recent years.

In the US, the rich can even own their own beaches; they can buy ocean views that will never include the sight of a stranger’s footprints in the sand. Google’s executive chairman, Eric Schmidt, who has said, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,” recently paid US$22 million for the house of the late Veronique Peck, the widow of Gregory Peck. Designed like a French chateau, it has seven bedrooms, nine bathrooms and two maids’ rooms. The gated entrance leads to a long driveway, and the beautiful back garden is so large it could be a park and so private that it has hosted such occasions as the musician Ben Harper’s wedding. Even Michael “I need my privacy, I need my privacy, so paparazzi get away from me” Jackson would visit in perfect confidence that he’d never be subject to prying eyes.

Garret Keizer observes that if privacy wasn’t a good thing, “the wealthier among us would not enjoy more of it than the less wealthy do”. Workers “hot desk”; bosses have doors. When most of us get sick or injured we end up in a ward; the rich suffer the indignities of ill health in a private room. Where privilege is currency, a similar logic applies. Even in the so-called egalitarian days of the Maoist era, Chinese Communist Party officials and other elites (highly ranked state artists, for example) enjoyed private telephones, private transport, and private baths and toilets. The rest of the populace bathed in public bathhouses, placed personal phone calls in front of colleagues or in the office of the neighbourhood committee (organisations of volunteers dedicated to stickybeaking on behalf of the party and government), rode public transport (or exposed themselves to weather and the public view on a bicycle), and squatted in public toilets that were often little more than rows of trenches in a room without any dividers.

Oprah Winfrey wouldn’t have lasted a minute. When called to jury duty in 2004 in Chicago, she found using the public toilets in the jury room such an ordeal that she had her fellow jurors sing ‘Kumbaya’, among other tunes, while she was inside. They could have, of course, installed Japanese toilets that automatically burst into song or make flushing or waterfall sounds when occupied. Yet historically, privies were not always private for those at the top of society: during the Renaissance, it was not uncommon for even kings to greet their subjects while seated on that alternative throne. In 1589 France’s Henri III was assassinated by a friar named Jacques Clément, who had come for a word in the water closet. The king may have died with his boots on, but his pants were down.

Generally, when we consider issues of privacy around the body and the family, and their physical extension, the home (or in Zuckerberg’s case, the honeymoon hotel), it is privacy defined as freedoms from: being seen, touched, heard. Keizer notes that among the last words spoken by the Marxist revolutionary Leon Trotsky “was a cry to his wife not to let anyone else undress him”. Keizer writes that it was “a plea for some privacy if ever I heard one”.

Other types of privacy associated with freedoms to rise in accordance with wealth. In 2006, John Howard’s Coalition government raised the disclosure threshold for political donations from $1500 to $10,000. Give $11,000 to a party or candidate and you must declare yourself. But for $22,000, as we have recently learnt, you can buy membership in the North Sydney Forum – and with it privileged access to the treasurer, Joe Hockey. At the same time, you can keep your name – and potential conflicts of interest – out of the public eye and safe from scrutiny. (The kind of privacy that the forum preserves might well be translated into Chinese as yinsi.)

Australia’s richest woman, Gina Rinehart, ultimately failed to keep the media from publishing details of her nasty feud with her children over the multi-billion-dollar trust fund established for them by her father. Many ordinary Australians, having been chastised by Rinehart for not being willing to compete with Africans whom she said would work in the mines for $2 a day, took malicious delight in what became a public family row. It usually takes a murder, a legal case or a sensational divorce (Rupert–Wendi–Tony) for the rich and powerful to find their dirty laundry flapping from the communal Hills hoist.

As for the poor and the powerless, the standards of privacy drop. Scientists in colonial times were fascinated with Aboriginal people: poking, prodding, photographing and measuring without regard to the wishes of their subjects. Today, scrutiny is part of life for disadvantaged people of all backgrounds who are forced to rely on some form of state assistance: if someone is receiving benefits (including for a disability) and they separate from a partner, a traumatic experience at the best of times, they need to fill out a Centrelink form that asks such questions as “Is there any chance of a reconciliation?” and requires the contact details of two people who are not closely related who can confirm to Centrelink the details of the separation.

The state is most cavalier in its attitude towards the privacy of asylum seekers, many of whom are forced to live communally in tents or other makeshift accommodation and under constant surveillance. Had it been 10,000 “ordinary Australians” and not asylum seekers whose personal data had been exposed on the internet by a government department in February this year, we’d surely be hearing far louder cries of outrage – even though the victims reasonably claim that the breach has put many of them at risk of their lives.

The recent budget disbanded the government office tasked with working with the department to ensure that no such breach occurs again. The resources and personnel of the Office of the Australian Information Commissioner are to be redistributed among other government agencies. The Labor government had created the OAIC in 2010 to promote openness in government and review government decisions to ensure that Australians’ personal information is protected. Also on the budget chopping block is the office of the Independent National Security Legislation Monitor, which reviews Australia’s counter-terrorism and national security legislation on an ongoing basis with regard to “whether the laws contain appropriate safeguards for protecting the rights of individuals”. In mid May, meanwhile, the AAP reported that, not even counting requests by ASIO, the Australian government is second only to that of the US in requesting “user data” from tech companies. Among them were names such as Telstra, Facebook, Google, Apple and Microsoft.

When the 18-year-old Rookie website editor Tavi Gevinson recently interviewed the 21-year-old pop star Miley Cyrus, she asked why Cyrus never thought to keep her experimentation with sex and drugs private. According to Gevinson, Cyrus replied along the lines of, “Well, there have been paparazzi outside of my house since I was 14, so there’s no public/private for me.”

Much has been written about the cult of celebrity, the birth and continued adolescence of reality TV, the triumph of the selfie (who needs paparazzi when we can “pap” ourselves?), the phenomenon of the life-logger and the transformation of the internet generally into a giant megaphone for self-revelation. To the extent that notions of the private are inhibiting, their abandonment can feel as liberating as the shedding of clothes on a nude beach. At the same time, as Michelle Goldberg writes in the Nation, “we’ve built ourselves a panopticon in which any one of us can be singled out for minor transgressions and transformed into a meme for jeering global flagellation”.

Michael Arrington, founder of the Silicon Valley news site TechCrunch and named by Wired, Forbes and Time as one of the most influential people on this wired Earth, argues that rather than “trying to control, or even manage, your online reputation”, we should all just move on and become “more accepting of the indiscretions of our fellow humans”. A self-proclaimed libertarian (“I just see government as this thing that stops us from doing things”), he suggests in articles with titles like ‘Reputation Is Dead: It’s Time to Overlook Our Indiscretions’ and ‘OK You Luddites, Time To Chill Out on Facebook Over Privacy’ that “the nonsense we’re all worried about today” – photos of pot-smoking in university is an example he gives – will “likely be seen as a badge of honour” tomorrow.

It’s a stance that a well-educated white man in a liberal Anglophone society might easily adopt. It would not necessarily be shared by a woman living in a culture characterised by relentless “slut shaming” – including that same liberal Anglophone society. It wouldn’t be shared by the family of closeted American university student Tyler Clementi, who killed himself in 2010 after fellow students spied on him having sex with another man via webcam and then reported it on Twitter.

As for proving that “privacy is already really, really dead”, Arrington relates that a fledgling site that allowed users to publish all their credit card purchases attracted 2500 users and another 10,000 on a waiting list. Yet in 2013, there were more than 390 million credit card accounts in the US alone. Even allowing for the fact that the average customer holds two, that means something like 0.00006% of all credit card holders have such low thresholds of privacy that they are happy to reveal their spending habits to the world. As Garret Keizer puts it, the presumption that privacy is dead appears “whenever the willingness of some people to surrender privacy in some areas of their lives is taken as proof of the willingness of all people to surrender their privacy in every area of their lives”.

Josh Cohen, a psychoanalyst and a professor of literary theory at Goldsmiths, University of London, has commented in the Guardian, “To speak up for privacy in this brave new world is rather like appealing for temperance in a City wine bar – a futile attempt to convey the one message the crowd won’t hear or understand.” Yet he warns: “The more we drag private experience into public visibility, the more our emotional lives – our relationships to ourselves and to others – threaten to descend into a kind of shrill and unconvincing mimicry of real feelings.” He discusses the psychoanalytic theory that there is “an obscure yet essential region in us that can survive only by remaining hidden, and whose natural elements are darkness and silence”. Our inner mysterious stranger, you could say. “This hidden spot,” Cohen continues, “is the source of our uniqueness and singularity, a fact authoritarian regimes know only too well, which is no doubt why they make such a priority of closing down all those spaces in which the private self can flourish. To attack privacy is to attack the very source of creative and imaginative life.”

Ai Weiwei put it this way in his response to the Snowden affair: “In our experience in China, basically there is no privacy at all – that is why China is far behind the world in important respects: even though it has become so rich, it trails behind in terms of passion, imagination and creativity.”

Not surprisingly, many writers and artists worldwide value privacy highly. It may be the privacy of the study or the studio, that precious “room of one’s own” of which Virginia Woolf wrote. It may also be the privacy of the person; “I hate the vulgarity of ‘human interest’” was Nabokov’s response to the trend of the media to be more interested in a writer’s life than work.

In the wake of the Snowden revelations, PEN America surveyed its members, many of whom write non-fiction, and in many cases must keep their sources confidential, as to how awareness of the NSA’s far-reaching surveillance influenced their thinking, research and writing. A number of the respondents reported that they had begun to self-censor, both in correspondence and in their writing, for fear of implicating others or themselves. One who was beginning to write a book about civil defence preparedness during the Cold War abandoned the project, nervous as to the consequences of searching online and making library requests for such subjects as “nuclear blasts”, “radiation” and “weaponry”.

Last year, I was one of more than 500 writers worldwide, a list that included Martin Amis, Arundhati Roy, Tom Keneally, Lionel Shriver and Anna Funder, to sign a letter condemning the NSA’s program of global surveillance: “A person under surveillance is no longer free; a society under surveillance is no longer a democracy. To maintain any validity, our democratic rights must apply in virtual as in real space.” It is too early to tell if people like us are just whistling into the wind whipped up by the fly-past of surveillance drones, the bluster of the anti-privacy brigade and Miley Cyrus’s wrecking ball.

“A fire broke out backstage in a theatre,” the 19th-century Danish philosopher and theologian Søren Kierkegaard wrote. “The clown came out to warn the public; they thought it was a joke and applauded. He repeated it; the acclaim was greater. I think that’s just how the world will come to an end: to general applause from wits who believe it’s a joke.”

As for whether I shall ever pass on that letter to “my mysterious stranger”: that’s for me to know and no one else to find out.

Thomas Friedman also runs another the end of the world in Four Words Going Bye-Bye where he says that privacy, as well as local and a few other words are over, as in the concepts that they encompass.  And he seeks to support this broad conclusion with a few topical and dramatic examples .  For a writer as well credential as Friedman it is a particularly silly piece.  Really dopey.  That is particularly so given the article was written not long before the US Supreme Court made it clear that privacy is not over.

 It provides:

The more I read the news, the more it looks to me that four words are becoming obsolete and destined to be dropped from our vocabulary. And those words are “privacy,” “local,” “average” and “later.” A lot of what drives today’s news derives from the fact that privacy is over, local is over, average is over and later is over.

Lord knows I have no sympathy for the Los Angeles Clippers owner Donald Sterling, but the public disclosure of a private recording of his racist rants underscored the fact that in a world where everyone with a cellphone camera is paparazzi, everyone with access to Twitter and a cellphone voice recorder is a reporter and everyone who can upload video on YouTube is a filmmaker, everyone else is a public figure — and fair game.

It is now so easy for anyone to record, film or photograph anyone else anywhere and share it with the world (without an editor or libel lawyer) that we are all now on Candid Camera. You cannot assume anything is private anymore. Which is why it is not surprising that I now often hear regular people — not high government officials — saying to me in conversation: “This is off-the-record.” Huh? What are you secretary of state? I start to imagine third-graders on play dates talking about their teacher and asking each other, “Are we on the record or off the record? Is your cellphone or Google glasses recording this?”

The Associated Press reported that Sterling’s racist remarks were part of a conversation taped by his lady friend (by mutual agreement) on her cellphone, some of which she then sent digitally to a friend of hers for “safekeeping,” who then leaked it to TMZ, a gossip website.

The always smart Bill Maher on his “Real Time” show of May 9 rightly noted, “Now that Americans are getting wise to the dangers of being spied on by the government, they have to start getting more alarmed about spying on each other. Because if the Donald Sterling mess proved anything it’s that there’s a force out there just as powerful as Big Brother: Big Girlfriend. … In an op-ed in The Washington Post, Kathleen Parker offered one way with dealing the modern world’s ubiquitous invasions of privacy: give up. She wrote: ‘If you don’t want your words broadcast in the public square, don’t say them.’ Really? Even at home? We have to talk like a White House press spokesman?” It may be so.

Local is over for the same reason. Everything and anything controversial you say or do anywhere in today’s hyperconnected world can immediately go global. Beyoncé’s sister Solange starts kicking and swinging at Jay-Z inside a hotel elevator and the attack is captured on surveillance video — bam, global. And you don’t have to be Solange for your slap to be heard round the world. On Monday, Google News carried the following story: “SANTA ROSA, Calif. (KGO) — A Santa Rosa mother is accused of assaulting a boy she believed was bullying her daughter.” It doesn’t get more local than that, but it went global thanks to Google. Anyone who tells you that what happens in Vegas stays in Vegas is pulling your leg.

I’ve been arguing for a while now that “average is over.” It has to be when every boss has cheaper, easier, faster access to software, automation, robots, cheap foreign labor and cheap foreign genius that can produce above-average so easily. Everyone needs to find their unique value-add, their “extra,” and be constantly re-engineering themselves if they want to obtain, or advance in, a decent job that can’t be digitized.

Consider this article published in The New York Times on April 23: “EASTON, N.Y. — Something strange is happening at farms in upstate New York. The cows are milking themselves. Desperate for reliable labor and buoyed by soaring prices, dairy operations across the state are charging into a brave new world of udder care: robotic milkers, which feed and milk cow after cow without the help of a single farmhand.”

Finally, comes the news, reported in this paper on May 13, that scientists have concluded that a large section of the mighty West Antarctica ice sheet has begun falling apart and its continued melting now appears to be unstoppable. “Today we present observational evidence that a large sector of the West Antarctic ice sheet has gone into irreversible retreat,” Eric Rignot, a glaciologist at the University of California, Irvine, said in the article. ‘‘It has passed the point of no return.”

As I’ve noted before, when we were growing up “later” meant that you could paint the same landscape, see the same animals, climb the same trees, fish the same rivers, visit the same Antarctica, enjoy the same weather or rescue the same endangered species that you did when you were a kid — but just later, whenever you got around to it. Not anymore. Later is now when you won’t be able to do any of them ever again. So whatever you’re planning to save, please save it now. Because later is when they’ll be gone. Later will be too late.

Later — like private, local and average — is over.

 Slate in Supreme Court Breakfast Table makes it plain that the Supreme Court does not regard privacy as being over.  It has made it view clear, that privacy is a current and enforceable concept which is deserving of protection.

It provides:

I agree with most of what you say about the cellphone rulings, Eric, but I think you may be missing the forest for the trees. For one thing, Wednesday’s decision—remarkable in its unanimity—was only superficially about cellphones. As Chief Justice John Roberts said, the term cellphone is “itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” He added, “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” His observation reminds me of the New Yorker cartoon showing a bewildered schlemiel coming up to something resembling an Apple Store Genius Bar and asking sheepishly whether he couldn’t just buy one of those “things that you use to call up people.”

So the court’s decision was really about the brave new world of computers and automated data storage and data processing. Justice Elena Kagan last year remarked that privacy issues are “a growth industry for the court,” and it’s clear that the growth is fast, mostly because technology is changing quickly and is having so profound an impact on everything about the way people live—and think.

Last year the court issued a very different kind of decision, allowing police to take DNA samples from arrested suspects without a warrant. Along the way, the majority opinion, by Justice Anthony Kennedy, casually compared the collection of DNA to the taking of fingerprints so as to downplay the novelty of a really profound technological development. By contrast, Roberts does no downplaying in Wednesday’s case. He said the government’s argument, that searching all the data stored on a cellphone is “materially indistinguishable” from searching the photos and pieces of paper in a suspect’s pockets, was “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Exactly. The dig against too literal an attempt to apply in 2014 the “original meaning” of provisions written in 1791 is none too subtle either!

In previous cases the court has ruled unconstitutional police attempts to use a GPS to track the movements of a car through the streets for a month, or to use a thermal imaging device to “see” through the walls of a house and search for a marijuana-growing operation. In those cases there was a fight over whether what the police were doing should even count as a “search and seizure,” as the Fourth Amendment defines that. This time, though, nobody argued that the cellphones weren’t being searched. Rather, this case was about police using old methods and techniques—like searches of what people have on them or with them when they’re arrested—to exploit the power of new technologies. They could learn all kinds of things about you from your phone that in the past they would undoubtedly need a search warrant (and, maybe, a coercive interrogation!) to uncover.

In his separate concurring opinion, Justice Samuel Alito says something that, Eric, you find yourself agreeing with: Alito says courts don’t know a lot about this stuff and implies they should leave the heavy lifting to Congress and maybe the state legislatures. Alito seems to think the key questions, about how much privacy people expect in their cellphones, are largely empirical ones. When courts talk about protecting people’s “reasonable expectations of privacy,” they do sound like they’re discussing things we could get at with really good public opinion surveys.

But the danger of thinking that way is that a sufficiently snoopy and clever government could gradually condition us to care less and less about privacy and all that it enables us to do and to be, until we’d pretty much expect that our entire lives would be an open book for the government to read at will. We’d then become a subservient people, not the freedom-loving and risk-taking people the Constitution at its best contemplates.

 Courts are there, sometimes, to remind us of the core values at stake in debates over privacy and of how those values might gradually erode unless we’re on guard to protect them—exactly the way all nine justices did in this case. Justice William O. Douglas once wrote: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.” Douglas recognized that values like privacy aren’t lost suddenly but wither and weaken over time until we forget why we ever thought they mattered so much.

I’m ready to celebrate today’s reminder from the court about why the government’s position in this pair of cases was so scary. That the court repudiated it unanimously is cause for cheering. I say let’s add some Champagne to the OJ and vodka to the tomato juice!




One Response to “End of privacy articles…. more jeremiads..”

  1. End of privacy articles…. more jeremiads.. | Australian Law Blogs

    […] End of privacy articles…. more jeremiads.. […]

Leave a Reply

Verified by MonsterInsights