Privacy: The Freedom From Which All Other Freedoms Stem, And How to Protect It
As a final paper for one of my classes, I wrote this essay advocating for greater legal protection of privacy on the internet. I am proud of it, so I wanted to post it here.
Privacy: The Freedom From Which All Other Freedoms Stem, And How to Protect It
When it comes to government surveillance, once citizens become willing to give up certain freedoms and certain rights, they tend to acclimate to the loss and become complacent. People are much less protective of their own right to privacy once that right has already been eroded. However, the right to privacy is fundamental, especially since surveillance enables a vast array of other governmental abuses of power. Stronger protections against government surveillance are necessary, and can be accomplished by strengthening the Fourth Amendment and passing legislation that unambiguously protects personal data, by requiring organizations to collect as little data as is necessary to perform their functions. Information is most secure when it is not collected at all.
The right to privacy is clearly laid out in the Fourth Amendment of the U.S. Constitution. It reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause."
However, in the digital age, whenever technology intersects with peoples' "persons, houses, papers, and effects," courts' rulings have a tendency to weaken the Fourth Amendment and rule that local law enforcement are welcome to such data. When it comes to security in one's person, federal courts have ruled that it is legal for the government to compel individuals to unlock devices using biometric data during the execution of a search warrant. According to Mark Udall, former senator of Colorado, the right to privacy "really underlies and buttresses all of our other freedoms, whether it's the freedom to assemble or the freedom of religion… [Any] matters that are really personal are also private, unless we indicate otherwise." Privacy, then, is the freedom from which all other freedoms stem. Inversely, then, surveillance is one of the most effective forms of oppression: it intimidates people into staying in line.
Cory Doctorow, a prominent activist for internet freedom and digital privacy, has a theory called the "shitty tech adoption curve." He describes it as "the process by which oppressive technologies are normalized and spread." Namely, any corporation or government that seeks to use technology for purposes such as surveillance must start with vulnerable and marginalized populations, as those groups have the least power to resist such oppression.
"That's why all our worst technologies are first imposed on refugees→ prisoners → kids → mental patients → poor people, etc. Then, these technologies climb the privilege gradient: blue collar workers → white collar workers → everyone. Following this pathway lets shitty tech peddlers knock the rough edges off their wares, inuring us all to their shock and offense."
Because of this social principle, governments and corporations that want to practice surveillance already have an advantage in the surveillance game. The COVID-19 pandemic provided a classic example of a catalyst for broader surveillance. In the name of curbing the spread of the virus, many countries rolled out apps containing tracking software that would notify users when they were exposed to a person who had tested positive for COVID-19. However, this provided countries with a built-in opportunity for greater surveillance of citizens' precise location, movements, and interactions. In 2020, the Brookings Institute, a policy think-tank, wrote that there was "a very real danger that these voluntary surveillance technologies will effectively become compulsory for any public and social engagement."
In many contexts, this acqueiscence to surveillance has already happened. Take, for example, the Patriot Act. Between 2006 and 2011, more Americans said the Patriot Act was a "necessary tool" for preventing terrorism, and fewer said that it went too far. This shows that when surveillance becomes the status quo, people's resistance to it diminishes. Opponents of surveillance, then, must work hard to motivate people to fight against surveillance.
One tool that activists can readily capitalize on is the inherent power imbalances underlying any form of surveillance. Doctorow writes that when it comes to opposing surveillance, one of the problems that privacy activists are fighting for is "the social relations of [surveillance], who gets sensed and who does the sensing." Because indeed, surveillance is about power.
So, what are we as a society going to do about it?
We need legislation that protects people. We need laws that actually put people's rights first, and put the right to privacy first. We need to protect people from incentives for corporations to treat them as a product, and treat their information as something to be bought and sold without ever asking their consumers for consent in a meaningful way.
It is widely known that private companies collect and sell information about their users to third parties. Laura Moy, a law professor at Georgetown University, refers to this as a "booming data broker industry." Often, that third party is the United States government, as law enforcement and intelligence agencies have a strong interest in collecting information on citizens. One way to protect citizens from governmental agencies purchasing their data is simply by strengthening the Fourth Amendment. A bill proposed in January 2022, the Fourth Amendment is Not For Sale Act, would prevent the government from purchasing geolocation information and other highly personal and revealing information. This bill has bipartisan support, and if passed, would represent a major step forward in protecting Americans' privacy in their personal lives, which more and more often occur online.
The European Union uses a different approach. The way that the EU addresses the issue of digital privacy is through the General Data Protection Regulation (GDPR). Designated as "the world's strongest set of data protection rules," the GDPR firmly limits what organizations can do with personal data about individuals. GDPR designates several categories of sensitive personal data, such as data about race or ethnicity, political opinions, religious beliefs, biometric data, or health information. The principles of GDPR are to both ensure that organizations are accountable for the way they use personal information that they collect about their users, and to minimize the amount of personal information that they collect in the first place.
Minimizing the amount of data collected about users truly is the only way to keep information safe, secure, and out of the wrong hands. Information that is stored is always vulnerable to leaks, breaches, or to being misused. For that reason, Richard Stallman, an American activist for the free software movement, believes GDPR does not go far enough. Rather than simply telling companies that they should collect as little data as possible about their users, Stallman advocates for laws requiring systems to be built so as not to collect personal data. The only way that this could be ensured is for a system to be required to not collect certain data, if its basic function could still be carried out without that particular data. Convenience and efficiency would not be considered valid justifications for collecting particular data, as these are slippery slopes that incentivize greater and greater collection of personal data.
It may be argued that users consent to their personal data being collected by private corporations, as they must consent to the terms of service to visit any website or use any online platform. The notion of "consent of the governed" would imply that customers can simply leave any online platform whose terms of service they object to. But this is a false narrative, as invasive collection of personal data is ubiquitous across the web. Consent cannot be said to be real if it is coerced, and consumers are not offered any real alternative if they do not want their data to be collected and sold, other than to cease using that platform's services.
Furthermore, the terms of service offered by most online platforms are too long for most customers to reasonably be expected to interpret, and are usually couched in a legalistic register that is difficult for most customers to understand. In such a situation, where consent is neither freely given nor is it informed, something must change. Legislation should be passed requiring organizations that collect personal information to stipulate in layman's terms exactly what information they collect, what purposes it will be used for, and who it might be shared with. Furthermore, customers should be allowed to select exactly which information they will allow to be collected about them, and reject other types of information that they do not wish for the organization to collect, with the choice to opt out of all information presented as equally as valid an option as the others. Only when consent can be negotiated is it true consent.
In summary, privacy is the foremost freedom that citizens should be concerned with in the digital age. Information, when in the wrong hands, can be a tool for governments to oppress their citizens, but it should be something that users of the internet themselves control the flow of. To protect privacy in a meaningful way, governments must be prevented from buying precise geolocation data, through passage of the Fourth Amendment Is Not For Sale Act. We must also pass legislation requiring organizations and platforms to build systems designed to collect as little information as possible, allowing customers the ability to control what types of information they consent for the platform to collect. Increasingly, the internet is the place where people live out their personal lives. We must make it somewhere where people can reasonably expect that their personal matters, and personal information, will be kept private.