The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ben Wittes and Jodie Liu have posted an interesting new paper, The Privacy Paradox: The Privacy Benefits of Privacy Threats, that discusses how new technologies that many think of as threatening privacy are also at the same time a boon to privacy. An excerpt:
In thinking about big data and digital technologies as a one-way, privacy-eroding street, we are grossly oversimplifying the true nature of the technology-privacy interface. Just as the door is not a pure privacy gain, few technologies involve pure privacy loss. The Internet, after all, is not simply a series of surveillance technologies. Surveillance capabilities, rather, are largely collateral consequences of the main point: the opening up of new communications channels. And those new channels involve, in the first instance, privacy gain-or, rather, a series of privacy gains- because they enable greater choice about how individuals communicate with one another. Create phone lines for the first time and you create the possibility of remote verbal communication, the ability to have a sensitive conversation with your mother or uncle or lawyer from a distance. It is only against the baseline of that privacy gain that you can measure the loss of privacy associated with the sudden possibility of wiretapping.
A huge amount of technological development follows this basic pattern. Google and Microsoft and Yahoo! enable you to search for information privately-with data collection by the companies and possible retrieval by other actors as a consequence. Amazon lets you buy all sorts of products with nobody the wiser-but with your purchase history stored and mined for patterns. Your smartphone lets you put all this capability in your pocket and take it with you- and thus also lets you use it more and record your location along the way. That information too is then subject to retrieval. Facebook allows you to identify discrete groups of people with whom you want to share material-yet it stores your actions for processing and retrieval as you go.
In our mental tabulation of gain and loss, we tend to count only one side of the ledger, pocketing what we have won as though it were of no privacy value while bemoaning what we have given up. Even more mischievously, when we do acknowledge the gains, we tend to redefine them as gains in something other than privacy. We define them, most commonly, as mere convenience or efficiency gains -a dismissive description that implies we have won something inconsequential or time-saving while giving up something profound. But the construction leaves us with a distorted and altogether-too-bleak outlook on technology's impact on our lives. Yes, technology involves gains in convenience and efficiency, but those are not the only gains.
To reiterate, we do not argue here that technology is necessarily privacy-enhancing in the aggregate, or that technology does not erode privacy. Rather, our general point is that the interaction between technology and privacy is less clear-cut than the debate commonly acknowledges, that we don't keep score well, and that the actual privacy scorecard is a murky one.
One question I have is whether Wittes and Liu are actually disagreeing with others or just pointing out a dynamic that others agree with but don't focus on enough. Wittes and Liu argue that "the debate" sees the privacy impact of new technologies as one-sided. But I'm not sure that's correct. True, many people who write about technology and privacy tend to focus on one side. The narrative of "privacy lost" draws more attention than the narrative of "privacy gained" or "privacy roughly maintained." That's especially the case if you're on the civil libertarian side, which is the case among most people who write in this space. But I'm not sure the folks who Wittes and Liu say disagree with them actually do disagree with them. I'll be interested to read their responses.
In any event, I largely agree with the basic argument that Wittes and Liu are making. As I wrote in this this article at 512-17, technologies that both can be used by individuals to avoid surveillance and that enable new kinds of surveillance are a double-edged sword from a privacy perspective. They can add privacy or take it away, depending on how the technologies are used and what legal rules and practices regulate the watchers.