Privacy as a Right

Posted on Dec 5, 2018 by Doc Searls
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The first comment in response to Privacy is Personal was this tweet by @raouf777:

It is also a fundamental right, not a privilege to be bestowed on anyone. The individual should have the right to determine the extent of his privacy.

I agree with @raouff777’s points, which almost go without saying. Because, well, of course privacy is a right. Hasn’t it always been?

Well, no. Or not exactly.

Let’s start with what Yuval Noah Harari says about rights in his book Sapiens—A Brief History of Humankind  (Harper, 2011, 2104):

Sapiens rule the world, because we are the only animal that can cooperate flexibly in large numbers… We cooperate effectively with strangers because we believe in things like gods, nations, money and human rights. Yet none of these things exists outside the stories that people invent and tell one another. There are no gods in the universe, no nations, no money and no human rights—except in the common imagination of human beings…

That’s in Chapter 2. In Chapter 6 he  also challenges he concept of equality, which informs much of our thinking and lawmaking around rights:

Is there any objective reality, outside the human imagination, in which we are truly equal? Are all humans equal to one another biologically? … Equally, there is no such thing as rights in biology. There are only organs, abilities and characteristics. Birds fly not because they have a right to fly, but because they have wings.

So for now let’s take Harari’s point. Let’s say rights are just a collection of stories we tell ourselves. As he points out earlier, those stories are what support cooperation, and hold civilization together. As he also points out, the story America’s founders told in the Declaration of Independence was a helluva lot more civilized than the Code of Hammurabi, which applied the death penalty to a huge variety of crimes (including lying), and codified women and slaves as forms of property. He also adds that the United States “would not have lasted 250 years if the majority of presidents and congressmen failed to believe in human rights.”

Belief is the thing. And belief, like our species, evolves. Among the less quoted parts of the Declaration of Independence is the passage crapping on “the Inhabitants of our Frontiers,the merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions.” Slavery and absent suffrage for women were both lawful to the U.S. Constitution when it was ratified in 1789. Slavery ended with the 13th Amendment in 1865, and equal protection didn’t arrive until three years later with the 14th Amendment. Womens’ suffrage didn’t arrive until 1919, with the 19th Amendment. (To put that in a personal perspective, my own grandmother couldn’t vote until she was 37 years old, and made sure we knew it.)

As for privacy, both the Declaration of Independence and the U.S. Constitution fail to mention it. Louis Brandeis and Samuel D. Warren began to correct that absence through a landmark paper titled The Right to Privacy (Harvard Law Review Volume 4 #5, December 1890). What they say about privacy invasions by photographers and newspapers applies no less to mobile phone cameras and social media today—and business models that are oblivious to privacy as well:

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.”10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.

Of the desirability—indeed of the necessity—of some such protection, there can, it is believed, be no doubt.

Toward that protection they conclude that privacy is personal:

Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man’s house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?

We can trace that common law to Cicero (106–43 BCE), who wrote, “What more sacred, what more strongly guarded by every holy feeling, than a man’s own home?” The castle metaphor we owe to William Blackstone (1723–1780 CE), in Book 4, Chapter 16 of his Commentaries on the Laws of England, where he writes, “And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of ancient Rome…”

Today we call this The Castle Doctrine. And in fact that doctrine has been fairly well respected since Brandeis and Warren published “The Right to Privacy”—at least in the offline world, and with large thanks to Louie and Sam’s pioneering paper.

Here’s a bit more of that paper. When you read it, think about how it applies to the online world today:

Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread… To occupy the indolent, column upon column is filled with idle gossip…solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance…. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Thus we should not be surprised to find Louie and Sam’s definition of privacy—”the right to be let alone”—coded into the EU’s General Data Protection Regulation (GDPR), which is aimed straight at the tracking-based advertising business that pays for much (probably most) of the “blighting influence” we suffer on the Web today—and on our phone apps as well.

Now let’s go back to what Harari says about rights being a story humans tell each other—and how the changing stories we tell drive our changing beliefs, plus the laws that express those beliefs.

Today the story we’re telling about our right to privacy is mostly about privacy laws (such as the GDPR) and their effects — especially on companies that need to comply.

That’s an interesting story, but it’s not one we need right now.

The first story we need now is the one I told last week about the need for privacy tech of our own: tech that gives us the online equivalents of clothing and shelter. We have some of it (thank you, VPNs, crypto and onion routing). But we need a lot more.

The second story is about privacy policies and terms of engagement that we proffer, as we would a handshake. I’ll say more about that one in my next post. Meanwhile, here’s a hint.

About Doc Searls

Doc Searls is editor-in-chief of Linux Journal, where he has been on the masthead since 1996. He is also co-author of The Cluetrain Manifesto (Basic Books, 2000, 2010), author of The Intention Economy: When Customers Take Charge (Harvard Business Review Press, 2012), a fellow of the Center for Information Technology & Society (CITS) at the University of California, Santa Barbara, and an alumnus fellow of the Berkman Klein Center for Internet & Society at Harvard University. He continues to run ProjectVRM at that Center, and co-founded its nonprofit spinoff, Customer Commons. He also co-founded and co-organizes the twice-yearly Internet Identity Workshop at the Computer History Museum in Silicon Valley.

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