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We've hardly noticed, but our privacy is virtually gone

Jon Katz
First Amendment Center scholar


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    Privacy has historically been considered a fundamental element of individual liberty. Thomas Jefferson argued repeatedly that privacy from government or other intrusion into personal lives (he had British soldiers in mind) was a basic human right. Supreme Court Justice William O. Douglas wrote that "the right to be left alone is the beginning of all freedom." Said political philosopher Jean Cohen: "A constitutionally protected right to privacy is indispensable to any modern conception of freedom."

    That's a shocking thought, because if so, we're giving up on modern conceptions of freedom. In the 21st century, privacy is a fading notion, not a protected freedom.

    The death of privacy seems has been so relentless, indirect and unintended, however, as to have gone virtually unnoticed. Reporters routinely pry into the most intimate details of the lives of public figures. Computers were collecting personal data on individuals even before the Net and the Web. Spy satellites overhead collect pinpoint photographs; government technicians pull cell and wireless calls out of the air; and police forces can even trace our auto trips as we pass through digitalized toll booths.

    Since the use of the Net and Web is, increasingly, no longer an option but a necessity, we surrender our privacy, usually unknowingly. Every time we go online, some marketer learns a bit more about us or our families.

    All week, we visit Web sites, weblogs, mailing lists; we buy books, check out movie reviews, visit news sites, order vitamins and DVDs; download MP3s; go to chat rooms; check in on ICQ, AIM. Each time, some program is tracking our every move, compiling elaborate marketing profiles, often collating the information with vast databases and selling the resulting information without our knowledge.

    Privacy, as most of us have come to understand the idea, is over.

    Last month, the Interagency Financial Institution Web Site Privacy Survey, conducted by the Federal Deposit Insurance Corp., found that all of the 50 largest financial institutions collect three or more pieces of personal or demographic information about users. The survey found that only eight of the 50 largest institutions meet all five principles of "fair information practice," an Internet industry standard that explains what data is being collected, allows consumers to opt out, permits access to the information, provides secure storage for the data, and gives customers a way to contact the company regarding privacy issues.

    This month's American Demographics magazine reports that 46% of all Americans now "swipe and save," that is, they use price-saving digital discount cards that enable supermarket chains to store data on gender, age, and most personal shopping habits, from hygiene to junk food.

    Except to the Unabomber, or to a handful of Luddites living in the desert, the idea that we can keep our personal, financial and other information from corporations and governments is as outdated as the idea that the movie industry can jail all the people helping themselves to DVD software.

    A growing array of software makes much of our individual behavior trackable — what we buy, what we read, where we visit, how we get our information. Companies that produce and deliver banner ads can track your clicks from site to site across the Web. They can cross-reference your personal ID with vast databases listing your name, address, telephone number, e-mail and browsing habits.

    Amazon.com has pioneered recognition software programs that compile individuals' tastes and choices; the technology has been adopted by supermarkets and hardware stores.

    ISPs (like AOL) and portals and search engines can record which chat rooms you enter, which news pages you read, which pages you've bookmarked.

    Most Americans have no idea that marketers can store their user IDs in cookie files and track their movements so precisely and comprehensively.

    Were a government to attempt any of this, politicians and civil libertarians would explode in righteous fury. But when done this gradually, technologically, out of sight and in incremental, software-driven steps, it simply creates an astonishing new social reality: Those of us who go online regularly (this year, that will be more than 130 million people) no longer have a zone of privacy.

    None of us any longer has any clear idea just how much personal information about us has been gathered, or who might have acquired or stored it. Nor is it possible to imagine all of the future circumstances — applying for jobs, graduate school or government grants; fending off a lawsuit, running for political office; tangling with a law enforcement agency or court — in which this information might haunt us or be wielded against us. In the name of marketing and writing cool software, we've voluntarily surrendered one of the most important human rights.

    Journalism — once one of our traditional protectors of rights — doesn't devote a lot of energy to protecting freedoms like privacy, perhaps because it's so busy invading it. Reporters, especially those in Washington, have assumed a steadily broadening mandate to explore the private lives of public people, almost always under some righteous and self-serving guise like "character" or "hypocrisy." The Monica Lewinsky story marked one of the most massive and sustained invasions of the private life of a public figure in American history, and was enthusiastically embraced by some of our supposedly best and most serious news organizations.

    No national politician has made the death of privacy a major political issue, nor is any congressional committee investigating it. The truth is, it's no longer an issue; privacy in the traditional sense doesn't exist anymore. In a world where we're all increasingly dependent on networked computing for work, banking, music, movies, research and personal communications, it's unlikely ever to return.

    In his book Code and Other Laws of Cyberspace, Harvard Law Professor Lawrence Lessig argues that the Internet will be regulated shortly, but not in the way we've feared. "Left to itself, cyberspace will become a perfect tool of control, not by the government, but by software programmers helping to track our every move."

    Important aspects of privacy will be erased, he warns. Password-driven software will one day demand payment for every individual reader action, from copying a paragraph to reading something more than once. Free browsing, sharing and quoting from online works will be eliminated. Such changes will also, Lessig warns, inhibit free speech. Once Net users realize that companies like America Online can trace their movements and tailor on-screen advertising to match their habits, people will increasingly be conscious of what they say and where they say it.

    If so, the future that Lessig foresees will catch most Netizens (including this one) off guard, especially those who believe that copyright and intellectual property can't really be preserved as the Net and the Web grow. We haven't come to grips with the idea that the technologies most of us see as liberating are destroying our privacy.

    With the collapse of communism, which featured powerful state agencies like the KGB and the Stasi that gathered vast amounts of personal data on citizens, the idea of brutally repressive political systems already seems remote. For better or worse, national politicians in the United States bitterly compete with one another to see who can define government in the cheapest and narrowest way. Marketers are taking advantage of this comparatively benign political period to take until-recently unimaginable liberties with our personal freedoms. So far, the corporations collecting this information have seemed relatively discreet, especially compared to brutal governments. If you pay careful attention to the spam you get online, it's sometimes possible to see who's collecting just what kind of information about you.

    And increasingly, even these image-conscious companies show their teeth. Free music sites are being shut down; a Norwegian teen-ager got hauled off to jail last week for allegedly violating restrictions on DVD programming code.

    As for governments, the geeks and nerds who've grown up on the Net have encountered almost comically clueless ones. When it comes to repression — as in the Communications Decency Act and congressional votes requiring the Ten Commandments in schools — our government has been about as knowing and menacing as the Three Stooges. It's easy to understand why people struggle to take it seriously. But that hasn't always been the case. Personal privacy is a monumental safeguard against abuse of government authority. The distance between corporate and government computers is a very short one.

    For a malevolent government — the kind Jefferson worried about, and the reason the Bill of Rights was crafted in the first place — it would be radically simple to figure out who the "troublemakers" are, what forbidden books they bought, or what politically unacceptable movies they viewed (they wouldn't have to go much further than AOL Time Warner). Access to this kind of information ought not be passed around among corporations. If citizens wish to give up their privacy, they obviously have the right to do so. But they ought to be given a choice. Shockingly, it's already too late for that.

    This issue now permeates almost every level of American society. In the name or preventing violence, schools use software programs to gather information on potentially "violent" students, kids that teachers find disturbing or alarming. No one knows where this data goes — presumably to law enforcement authorities, where it remains in secret digital files for life.

    The tragedy of technology is that we refuse, as a society, to consider its implications, from fertility drugs and genetic research to artificial intelligence to supercomputing.

    While our political, educational and media institutions focus obsessively on exaggerated or meaningless issues like the spread of sexual imagery, or invoke the undocumented specter of media violence, larger and more fundamental issues like the loss of privacy go largely undiscussed.

    Thus hard-won values slip away without much national discussion or debate. Given the epidemic spread of data-tracking software, it's hard to imagine we'll ever have "the right to be left alone" again.

    Jon Katz can be e-mailed at jonkatz@slashdot.org

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