Privacy in the 21st Century
Privacy is undervalued. Although many people enjoy privacy and view it as an appreciable right, the public is easily willing to sacrifice their rights to privacy as a means to an end. According to a 2016 Pew research study, 74% of American say that personal data control is “very important” to them, yet 91% of adults think control over their personal data is beyond their abilities.[1] We sign away our rights to privacy away absentmindedly when we scroll past websites’ ‘Terms and Conditions’ and click ‘Accept’ without reading a single word. Thanks to our carelessness, big technology companies can sell user data to advertising companies in order to predict future purchases. Google notoriously collects and sells our information, from our internet browsing history to our personal health records.[2] Meanwhile, Apple, another company in the market of buying and selling user data, recently incited controversy by refusing the Federal Bureau of Investigation’s demand that it unlock the iPhone of San Bernardino shooter Syed Farook. Apple claimed that a “back-door” to the iPhone would make it more susceptible to hacking and further jeopardize user privacy,[3] even though they have repeatedly been accused of violating privacy rights themselves.[4] In addition to market-based encroachment on personal data, the coronavirus pandemic has threatened the existence of privacy altogether. Countries such as China and South Korea use GPS mobility data to track citizens down and send exposure text messages — and other governments are beginning to copy their strategy.[5]
The future of privacy looks grim. Nonetheless, even in the age of governmental surveillance and data markets, privacy is critical to a well functioning society. It ensures the social benefits associated with voluntary intimacy, and it protects freedom of consciousness. In extenuating circumstances, however, the public must sacrifice a degree of personal privacy for the greater good.
The record of big tech companies on user privacy is concerning. Facebook, in particular, has extensive access to information from over 2.6 billion users.[6] Abusing the information is disturbingly easy. This came to light in 2018 when Cambridge Analytica used data from Facebook for political marketing. Cambridge Analytica used an app which created a psychological profile of hundreds of thousands of Facebook users, including users’ friends. They then sold this data to political campaigns, most notably Donald Trump’s 2016 presidential campaign.[7] Despite the ethical problems with data being manipulated this way, email evidence suggests that Facebook employees knew about Cambridge Analytica’s behavior but did nothing to stop it. Fallout from this scandal was tremendous. Users were outraged, sparking an online movement titled #DeleteFacebook. Mark Zuckerberg was forced to testify before Congress on the matter.[8]
The United States government does not have a strong record on matters of privacy either. In 2013, whistleblower Edward Snowden revealed that the National Security Agency had been mining phone and internet data of all citizens since the September 11th attacks. This program scraped phone calls and internet-based activities to spot potential terrorists without the public’s knowledge.[9] Unlike the Cambridge Analytica scandal however, NSA data mining activity was received with mixed emotions by the public. Some felt anger towards the government, citing this behavior as a breach in trust, while others accepted it as a step for public safety.[10]
Lastly, the coronavirus pandemic is perhaps the ultimate threat to privacy. Although illness and epidemics have always been a part of human history, combating mass illness with digital contact tracing and government surveillance are novel techniques. In fact, the procedures being used to fight the virus are necessarily quite radical. Max Kim, a writer for The New Yorker, highlights just how far Korean government officials have gone to prevent the spread of the virus:
Health authorities, with the approval of the police and other supervising agencies, can make use of cell-phone G.P.S. data, credit-card payment information, and travel and medical records. As of March 26th, the government has also officially launched the Epidemic Investigation Support System, a data-analysis platform that automates the process, allowing investigators to get clearance and pull up patient trajectories in under a minute.[11]
Korean officials have completely disregarded individual privacy, for better or for worse, in order to fight the pandemic. Infringing on personal rights in this way helps to slow the spread of the virus, protects national security, and gives the government power to act. On the other hand, however, personal and social responsibility is reduced when the government dictates behavior: the government may abuse the power given to it, and a host of ethical questions arise, such as who has access to this data, how secure it is, and where this data is being used.
In the law, privacy is a nebulous term. The word ‘privacy’ is not actually mentioned in the US Constitution, although it is laid out in the Supreme Court case Griswold v. Connecticut (1965). Estelle Griswold and Lee Buxton opened a birth control clinic in New Haven, Connecticut, only to be shut down by state authorities. At the time, Connecticut law banned the use of contraceptives, claiming that individual rights could be infringed upon for the sake of social good. However, the Supreme Court ruled in favor of Griswold, establishing that states could not invade the privacy of the home.[12] Specifically, the Court stated that various provisions throughout the Constitution create “penumbras” of rights. The majority opinion rested heavily on a phrase from the Ninth Amendment which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[13] In other words, the Constitution can protect certain rights even if it does not specifically name those rights. Privacy within the home is the chief example cited in Griswold. Although Griswold won the case, the outcome of Griswold suggests that the value of privacy is not absolute. According to the Court, there are zones of life in which privacy is paramount, implying that there are zones in which the individual right to privacy is not more valuable than the social good.
Therefore, the right to privacy allotted in Griswold and by the Ninth Amendment needs to be applied in complex, nuanced ways depending on context. As Daniel Solove points out in his article “‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy,” privacy needs to be seen as a multilateral issue because the role and value of privacy changes depending upon the situation. “We cannot ascribe an abstract value to privacy,” Solove writes. “Its value will differ substantially depending upon the kind of problem or harm we are safeguarding against. Thus, to understand privacy, we must conceptualize it and its value more pluralistically.”[14]
In the context of corporate manipulation, the right to privacy remains paramount. Privacy and control over online data protect individual liberties, allowing for a smoother transition into online marketplaces and away from physical markets. In the context of government surveillance for the purpose of counterterrorism, privacy is still important, although it is important for a different reason: it checks governmental power, protecting people from external intrusions. In any situation, privacy also enables intimate relationships. Intimacy requires privacy between individuals so that friendship, trust, and love can develop, creating strong relationships that benefit society at large. Finally, privacy in a pandemic is valuable, but not as valuable as the lives that digital contact tracing can save. If privacy is infringed upon through GPS data and location history gathering and government text messages so that millions of lives are saved, the benefits outweigh the costs.
Privacy must be restructured as a pluralistic value with different applications in different contexts. Privacy is about controlling personal information, but it is also about empowering individuals, checking governmental power, and developing intimacy and trust. Legislation concerned with privacy guidelines, as well as public understanding of privacy, needs to be reconceptualized so that privacy’s value is not lost in the face of modern challenges. If this is accomplished, privacy can survive the 21st century, but it will need to take on a new, multidimensional form.
[1] “The State of Privacy in America.” Pew Research Center. Pew Research Center, September 21, 2016.
[2] Copeland, Rob. “WSJ News Exclusive | Google's 'Project Nightingale' Gathers Personal Health Data on Millions of Americans.” The Wall Street Journal. Dow Jones & Company, November 11, 2019.
[3] “Breaking Down Apple's IPhone Fight With the U.S. Government.” The New York Times. The New York Times, March 3, 2016.
[4] Bogost, Ian. “Apple's Empty Grandstanding About Privacy.” The Atlantic. Atlantic Media Company, January 31, 2019.
[5] Kim, Max S., Stephania Taladrid, and Colin Marshall. “Seoul's Radical Experiment in Digital Contact Tracing.” The New Yorker, April 17, 2020.
[6] Curran, Dylan. “Are You Ready? Here Is All the Data Facebook and Google Have on You.” The Guardian, 2018. March 30.
[7] Lapowsky, Issie. “How Cambridge Analytica Sparked the Great Privacy Awakening.” Wired. Conde Nast, March 17, 2019.
[8] Ibid.
[9] Pappalardo, Joe. “NSA Data Mining: How It Works.” Popular Mechanics, November 14, 2017.
[10] Clayton, Mark. “NSA Data-Mining 101: Two 'Top Secret' Programs and What They Do.” The Christian Science Monitor. The Christian Science Monitor, June 8, 2013.
[11] Kim, Max S., Seoul’s Radical Experiment
[12] "Griswold v. Connecticut." Oyez.
[13] Ibid.
[14] Solove, Daniel J., I've Got Nothing to Hide' and Other Misunderstandings of Privacy. 763