Privacy Matters

Is Privacy Worth Protecting?Absolutely. Although, some people would say otherwise, claiming things like, "People don't care about their own privacy", and "Why should they care if they have nothing to hide?" This way of thinking implies people don't care about their "rights" to privacy. Privacy should be protected, even if we don't care about our own right to privacy. Collective privacy should not rely on individual preferences on this matter. Concerns about privacy rights are similar to concerns about the freedom of speech or the freedom to vote. They are bigger than any of us and our views on the issue. Instead, they reflect the kind of society we wish to live in. It should be viewed in light of the common good, instead of the individual. Our "Right" to PrivacyFreedom of expression, association and the right to vote are important in that they protect both the people as a whole as well as an individuals interests. For example, voting allows individuals to cast a ballot in a presidential election, but the purpose of doing so is to arrive at a common good or systemic good such as holding democracy accountable. Americans that don't vote tell us a great deal about whether or not the right to vote is worth protecting or whether or not we should reduce protections for the voter. On the subject of voting, we understand that our right to vote has societal benefits worth protecting no matter what an individual's stance is on voting. An example of this is that the complex and large amount of protections for our right to vote carries provides an incentive for government officials to be held accountable to the voters should the voter decide to cast a vote. Privacy, like voting, creates room for an individual's freedom. More importantly, it's protecting systemic and societal needs. Protecting privacy rights, even if we choose not to exercise it, is to promote the creation and growth of these societal needs. Without it, it is difficult to imagine if other major movements in our nation's history would have succeeded long enough to change policy. Consider the movements such as civil rights, women's rights and gay rights. Perhaps, this could also be said of major science, business or even technological innovations. If properly balanced, privacy protects the creative process. It creates room for deviations and experimentation. It allows for testing and removing weak arguments. Privacy paves new roads for minority views and groups to earn public support and for political ideas or arguments to become relevant. Whether we choose to protect privacy rights or not is related to the importance we give to these systems and processes as well as the public goods they promote, rather than to an individual interest or belief in the secrecy of their own data. Regardless of whether it's true or not that most people don't care about their own privacy, it's not enough to conclude whether or not, or what, privacy rights we should protect. Privacy, like voting, are rights that are worth protecting even should we choose not to exercise them. Rethinking the Harms of PrivacyOnce we understand that an important part of privacy rights is to protect interests collectively, we have to reevaluate some of the ways we determine privacy harms in our legal discourse. An example might be courts or policy makers evaluating the harm in data breaches or surveillance ought to look further than the intrusion on an individual's privacy and give burden to the larger societal harms of the legal decisions being declared. Sadly, the societal harms of privacy trespasses are overlooked or undervalued by courts and policy makers. Regarding litigation for data breaches, courts usually disregard claims to privacy unless a victim can prove the thieves that stole the data misused their personal information. This is a high standard that doesn't do justice to the vast social costs of poor security practices resulting in a data breach. A decision reached by the Supreme Court in the 2012 Clapper v. Amnesty International case, had a similarly high standard for plaintiffs challenging surveillance laws. The Clapper majority's conclusion assumed the theory that if the plaintiffs couldn't prove they were affected by more than speculative harm from the expanded surveillance of the government, which the view of four justices in dis-accord had a "very strong likelihood" of misleading lawful communications. In cases involving the Fourth Amendment, courts regularly warp themselves to push decisions with wide implications for collective interests into a small individual-privacy box. For example, Maryland v. King, the Supreme Court authorized the practice of genetic testing on suspects that have not been charged or convicted with a violent felony in Maryland. The majority's analysis focused on the "negligible" intrusion caused when the Maryland police "swabbed" the inside of a suspect's cheek with a Q-Tip, and not the new method of warrant-less genetic testing the world is in today. In assessing the reasonableness of the government's method, the majority weighed the severity of which the cheek swab intrudes upon an individual's privacy, on one hand, and the advancement of legitimate government interests in the prevention of crime, on the other hand. In other words, the Court weighed the people of Maryland's right to effective law enforcement against one man's right to not have his cheek swabbed. It doesn't seem fair, because it isn't. The Court concluded, "..a gentle rub along the inside of the cheek does not break the skin, and it involves virtually no risk, trauma, or pain"-a seemingly small price to pay for the protection of the people. The Court's analysis not only gives short penalty to societal implication of wide genetic surveillance, it narrows in on the wrong individual harm. The temporary  intrusion of a cheek swab, instead of the privacy implications of suspicion-less DNA searches and being included in an ever-searchable, permanent, law enforcement DNA data bank for the rest of the individual's life. The Court's pro-privacy conclusions are similarly false quite often. In US v. Jones, the Court believed that the Fourth Amendment regulates the use of GPS tracking by law enforcement agencies. Difficult questions about the issue of privacy rights in public spaces in the aspect of new technology that allows the prevalent tracking of life patterns and locations. Rather than wrestle wrestle with the implications of unbridled, pervasive location tracking, the Court developed a new legal rule punishing the FBI's minor physical intrusion to the undercarriage of Mr. Jone's vehicle. The Jones case wasn't about the car, but rather, it was about the broad implications of the warrant-less locations surveillance which had become more common. In both cases, Jones and King, the justices understood the impact their rulings had on collective interests. However, in both cases, the Court went out of its way to make the issues seem unrelated to what made up its real job, creating rules to protect the cheeks and vehicle undercarriages of individual Americans. This misses the big picture. It begs the question that there must be a better way to deliver justice to the wide societal impact of legal rules that weaken privacy. It is worth protecting privacy rights for reasons which go beyond an individual's interests in preventing minor physical disclosures, financial damage, and embarrassing disclosures. Because privacy rights create room for creativity, expression, competition, innovation, dissent,  and political participation; the rights are worth protecting. They are circumstances precedent to healthy functioning of our economic and political systems. Courts should work harder to recognize these interests that are protected by privacy when making their decisions. Changing the DialogueMaking changes to a few laws will not likely get to the root of the problem, which is the elaborate and expired vocabulary of privacy rights and the content built around it. Our inability to visualize or understand privacy as more than an individual right is destructive. It pushes our defective "notice-and-consent" ideals of privacy protection and it makes authentic debate about the expense and benefits of surveillance challenging and awkward. The longer we evade the challenge of broader implications of intrusions of privacy (the longer we structure the issue as a question of weighing the individual preferences of a few civil libertarians against the usefulness and security of society), the more likely the big questions will have been decided for us: by fear, by technology and the paralysis of a new situation created without consideration. Maybe the majority of "good" citizens believe that they've nothing to hide and therefor, nothing to fear. Whether they do or not is definitely interesting, but it misses the point. The most important question is whether or not we want to live in a society in which we cannot hide anything and what do we do if we are already there. Thank you,Starphisher