Privacy in the Virtual World

I usually write about privacy in the context of the police searching places and seizing evidence. That is, I usually write about privacy in the context of the 4^th Amendment’s prohibition of “unreasonable” searches (and seizures). This post is about privacy in a different context.

Last week I went to a talk by a law professor who specializes in online privacy law. The crux of his talk was that the privacy we’ve had in the real-world is being eroded there and online by what people post online.

One of the examples he used is the Korean woman who didn’t pick up after her dog made a mess on a subway train. As you may know, someone took a cell-phone photo of her and posted it online. The photo went viral; people tracked down her name and address and posted that information online, along with more information about her. As I recall, she was a student at the time.) People altered the original photo and basically had a lovely time making her look ridiculous. As I recall from what I read at the time, she was humiliated by all the attention and wound up leaving school.

Another example he used is the “Star Wars kid.” As you may know, a Canadian high school student videotaped himself playing at being a Jedi knight, using a golf ball retriever as a light-saber. From what I read, he left the videotape in the recorder, where some other students found it and posted it online, where it really went viral. People made variations, complete with Star Wars adversaries and authentic light-sabers, etc. Instead of enjoying the publicit,, the boy in the video was humiliated. As I recall, he dropped out of high school and finished his studies with a tutor.

If you’d like to read more about these and other, similar stories, you might check out my article on Online Defamation. There’s a link to it on the right-hand site of the blog.

In this professor’s view, we’re creating an accelerating erosion of privacy that threatens to seriously diminish if not destroy privacy, at least as we think about it. He therefore believes we must take steps to mitigate or end this erosion, and he believes there are two ways we can go about doing this.

One is to simply accept the phenomenon . . . on the premise it will either run its course and result in a backlash that resuscitates privacy or produce a world in which privacy is negligible and therefore not valued. The other option he outlined is to take affirmative steps to preserve privacy online. One of these, for example, would be to eliminate the immunity 47 U.S. Code § 230(c)(1) creates for those who operate websites but do not exercise any editorial control over what is posted on the sites. Eliminating that immunity would essentially make the operator of such a site a “publisher” who can be held liable for what people post on the site.

The law professor had a great deal more to say about privacy but this, I think, gives you an idea of the focus of his remarks. Since I have great respect for this gentleman, I am perfectly willing to accept his sincerity and erudition when it comes to privacy law and policy. I cannot, though, agree with him, at least not entirely.

Where I take issue with the views of this professor and other privacy mavens who share his views about the nature and magnitude of the effect cyberspace is having on privacy is the foundational assumption on which his analysis is implicitly predicated.

They seem to assume the privacy that existed in various countries during some or much of the twentieth century has ALWAYS existed . . . in every nation-state, city-state, empire and tribe. One of the things he talked about is that using cyberspace can reveal intimate information about our private lives. That is, of course, true . . . whatever I buy online is recorded and stored in databases. If a man buys Viagra or a woman buys birth-control pills, the information about those transactions is recorded, stored in databases and can come to light. The same is also true of transactions in the real-world when we use a credit card or a loyalty/discount card or any other device that leaves traces of what we’ve done. It is also true of other things we do online: the websites we visit and join, what we post on our MySpace or Facebook pages, etc., etc. Unless we somehow anonymize our activities, they create a digital trail that is recorded and stored in various databases.

When someone says this state of affairs is problematic because it represents an erosion of the privacy we enjoyed prior to the rise of cyberspace and related technologies, they are assuming that in the past all of this information was private, i.e., no one would know what medications, food, alcohol, sex toys or other items I was purchasing for my own use. I think that assumption is valid to some extent, depending on the historical period and the cultural context in which the activities occurred, but invalid in other respects.

Let’s start in reverse order: From what I’ve read, the original social unit was the tribe (not the family because collective activity gives humans an advantage in dealing with the challenges they encounter in their respective environments). I’ve read some about what life was like in prehistoric tribes (I think I even saw a movie about that?); based on that and simple common sense, I can say with a fair degree of confidence that there wasn’t much of what we’d call privacy in those groupings. I’m sure people tried to keep some information from others (the head of a family’s being ill, for example), but I’m also sure that most of what went on was well known to everyone in the tribe.

I can’t trace all of history here, but the tribes evolved into larger groups, which evolved into city-states, empires, etc. I cannot imagine that there was much of what we’d call privacy when people lived in villages that were part of an empire or even when they lived in one of the empire’s urban centers. Wealthy people may have been able to shield at least part of their activities from the masses, but I’m guessing everyone knew a lot about each other at every level of the society. All of those societies depended on face to face interaction and face to face transactions, so unless you wore a mask or came up with some other way to disguise yourself, people knew what you were buying (and selling) and probably knew if you were abusing your spouse or children.

Even when people lived in large cities, they tended to stay in their neighborhood, primarily because it wasn’t as easy to travel then as it is now . . . no cars, no subway, etc. So the neighborhoods were a lot like the villages the rest of the population lived in, and I cannot imagine there was much in the way of personal privacy in ancient and medieval villages.

What do I base that on? I base it on what I’ve read about villages and small towns in the U.S. in the nineteenth and early twentieth centuries. Think about it: There was probably one general store (maybe two) where you bought everything you needed . . . in a face to face transaction. So if you were one of the people who got hooked on over the counter medications containing opium, the owner and staff of the store would know that. After all, how many colds can you have? The same was true for all of your other transactions, for your attendance at church, for whether you fought with your spouse, whether your spouse was abusing you and the kids, whether your spouse was a drunk or just “odd”, etc. etc. I’m not saying people didn’t have some privacy; they could go home and close their doors and – if they didn’t start yelling at each other or do other things that leaded into the public domain – they could keep some things private.

I don’t, though, think they were as exercised as we are about privacy. The purpose of the 4^th Amendment was to prevent police from breaking into someone’s home and going through their “stuff.” As the Supreme Court noted early last century, the 4^th Amendment was not intended to create a general right to privacy; it’s become the focus of much of our privacy law because it’s the amendment that is the most concerned with privacy.

I digress: I think the foundational assumption I outlined above is a product – perhaps a somewhat exaggerated product – of a type of information control that essentially arose during the twentieth century. When I think of that type of control I imagine someone who lived in Manhattan in, say, the 1960s or 1970s. If you lived in an apartment, did not interact with your neighbors, bought your food and other supplies at various stores and did not interact with the staff of those stores, you could come pretty close to realizing the type of privacy the foundational assumption is based on. The staff of those stores would know what you bought, but the staff might rotate so you wouldn’t deal with the same people over a period of time. That would reduce their knowledge of your long-term buying habits. More importantly, since they didn’t know you and probably didn’t live anywhere near you, they didn’t care what you bought.

My point is that I think the kind of privacy the foundational assumption relies on has existed, but only on a small scale. . . and maybe only in certain places at certain times. If we’re not embedded in a community, what we do may be visible to others, but their lack of interest means they will probably pay little or no attention to what we do. Our privacy is a function of our disconnectedness and mutual disinterest in the details of each other’s lives.

I suspect that kind of privacy has existed at a very small scale in the history of human society. Throughout history, and today, many people still live in small villages and neighborhoods where everyone knows a lot about their lives. They may like that.

That brings me to my final point: The Korean woman who didn’t clean up after her dog would have gotten away with that fifty, forty, even thirty years ago because even if someone had taken a picture, they wouldn’t have been able to circulate it. Information about that episode would therefore have remained with a disparate group of individuals, none of whom knew her or cared anything about her except for her negligence in dealing with her dog.

Now, what she did can be distributed online to a community that transcends spatial constraints. Everyone who rides a subway who walks along a street can empathize with the people on the subway: And that community can do what communities have always done: express displeasure at her behavior in a way that shames her and, I’m guessing, means she won’t do that again.

My point is that privacy isn’t a unitary concept. It’s a complex, fluid phenomenon that changes as our environment changes. I’m personally very much in favor of our having as much privacy as possible. My purpose in writing this post is to point out that while cyberspace and related technologies can erode our expectations of privacy, we should not assume that every use of these technologies represents a threat to privacy.