The privacy laws of today are terribly outdated. They make assumptions about people’s observation-and-documentation capability that are no longer valid, and at the same time, what was once strongly protected is no longer protected at all.
We frequently hear how laws and regulations that apply to technology and IT startups appear to be outdated, old, counterproductive, preventing innovation, and/or all of the above. Laws that may have made sense at one time are now preventing progress. What many fail to consider, though, is the observation that this also applies to privacy laws. Some things have ceased being protected altogether, while others may need less or more protection – nobody knows, because nobody has looked at the original goals of privacy through the lens of radically changed assumptions that technology has brought on.
In many legislations, diaries and personal letters are protected in the case of a search warrant – law enforcement is not allowed to touch them when doing a lawful residence search, because of privacy. But computers and phones, today’s equivalent of diaries (and admittedly much more personal than a diary ever was), are seen as tools – the equivalent of a wrench or screwdriver – and are legitimate targets for a search. Many Big-Brother hawks argue they don’t even require a search warrant to search through a phone, today’s super-diary. Analog Equivalent Rights have been lost here: our diaries are no longer protected, because the law regards them as no more private than a hammer.
Photography and filming, meanwhile, shows the other side of the coin for obsolete privacy laws. They were written in the era of chemical film rolls where one roll would hold 24 photos, and you’d have to have the roll of film chemically developed to see the pictures – but only after the entire roll had been used up, and even then, you’d have a development delay of a few days if you were economical, and one hour if you were in a rush. This was the environment where laws on photography privacy were written, and as we can see, it comes with a set of assumptions that are no longer true.
Today, we’re taking thousands of pictures in the span of five minutes and have them published immediately. Moreover, there are live camera surveillance networks covering entire cities, each camera supplying one entire chemical roll’s worth of images every second.
Laws on photography privacy were written with the assumption that it doesn’t hurt if everybody has the power to take a photo anywhere and anytime, storing and perhaps cross-comparing a few of those photos. How do those assumptions change, when reality has changed: a few select corporations, governments, and people now have the power to take photos everywhere and all the time, storing and cross-comparing all of them?
In the same way, postcards were designed with the assumption that it didn’t matter if a few postal employees could read a few cards in transit, or phone company technicians hear a few phone calls, when they’re at work and performing their duties. But we’re now at the point where a few actors are not just able to read all postcards, phonecalls, and communications, all the time. That changes the information advantage and power dynamics enormously. How does that change the underlying assumptions, and how should that change the laws, in turn?
Our laws on privacy are obsolete, not because they were bad or malicious, but because they were written in a set of assumptions that are no longer true.
Privacy remains your own responsibility.