The right to be let alone

The Supreme Court case Olmstead v. United States from 1928 is very famous for the dissenting opinion written by Justice Louis Brandeis.

However, it easy to misquote Brandeis by saying he wrote “the right to be left alone-the most comprehensive of rights and the right most valued by civilized men.” For example, sometimes the mistake is made in library science documents.

However, the actual quote is “the right to be let alone….” not “left alone.” The difference is  substantial.

“Left alone” refers to things that directly affect a person. Generally, a violation of this definition would be known to the person whose privacy was violated. When the police come without a warrant looking for contraband, that would violate the principle of being left alone.

“Let alone” makes irrelevant whether there is the knowledge of the violation by the victim or whether they are directly affected. When the police use a Stingray to capture cell phone information, that is a violation of being let alone, but it isn’t a violation of being left alone.

Privacy and Self-Censorship

It’s interesting when the domain of two classes overlaps simultaneously. The subject of privacy and self-censorship is one of those right now.

A boy held back by several hands
The current assignment in IUPUI’s S502, Acquisitions and Management of Knowledge and Information explores censorship. Neil Richards’ Intellectual Privacy addresses the need to allow one to read freely and avoid self-censorship. The privacy interests in Richards’ book explain that observation or surveillance of ones reading materials can have a chilling effect on what information a person reads and accesses. One harm of that is that it may prevent the development of informed citizens in a democracy.

502 addresses the issues of censorship in a couple of narrow contexts. One form of censorship prevents access to objectionable materials. The other is self-censorship. To short-circuit possible challenges to a resource, the librarian may not purchase materials in an act of self-censorship. The class resources emphasize the value of librarians to pushing back against censorship attempts. There readings also mention self-censorship by authors who change their texts to improve a work’s palatability.

My observation is that the issue of censorship is broader than what 502 discusses. The self-censorship by authors is accurate. Publishers, content and copy editors, translators as well as authors can all implement self-censorship. Anyone in the food chain between the originator of an idea and the consumer is a vector for self-censorship.

Countries with authoritarian governments don’t try to disguise their censorship. They also use it to demand self-censorship. Post-publication censorship can apply pressure for publishers and news sources to self-censor. In the United States, this form of self-censorship is discreet. For example, authors don’t have to show that they removed profanity or didn’t write the article because of any controversies.

The class notes discussed self-censorship by librarians and booksellers. The issue of self-censorship from Intellectual Privacy discussed wasn’t as important to 502.

When an agency might monitor what a reader buys, rents or borrows, it isn’t necessary for there to be explicit restrictions. One might avoid owning a paper copy of with Fifty Shades of Grey that Richards explains in the chapter “Reading” that starts on p. 123. Censor’s attacks may inhibit readers to borrow books that they had attacked. One may not go to a newspaper web site published from Damascus, Tehran or by the Palestinians.

Richards points out a paradox. Ones reading material may seem private, for example by buying Fifty Shades of Grey as an e-book. However, eBook vendors have records of what you purchase, compromising the privacy and anonymity. The vendors protect that information out of economic self-interest, not the privacy needs of users. For example, in Ashcroft vs. ACLU, Google refused to release user search data with the justification that that release would reveal trade secrets. They did not advocate that the privacy of users was also important, just that the goodwill of users requires confidentiality.

An architectural diagram of the Panopticon prison
The Panopticon
The interaction between privacy and self-censorship comes from how one behaves when observed. The idea of the Panopticon prison invented by Jeremy Bentham is a metaphor in other venues. In the Panopticon, prisoners knew they could be watched at any time. They also did not know when they were not being watched. The risk of discovery forced the prisoners to act according to prison rules at all times. Similarly, awareness of possible access to internet history can lead to one to limit ones activities.

News reports mention internet access as incriminating in some criminal cases. The criminal complaint against the terror suspect Akram Musleh from Indiana included information about his search history [1]. However, that document contains much other incriminating information. His reading habits were secondary to other parts of the investigation. Other news reports sometimes mention search histories of narcotics suspects during the processing of their case.

This topic reveals the balancing needed to protect individual privacy. On one hand, individuals do not wish to be discovered searching for sensitive matters, but on the other, protecting that information can hide criminal activities and impede their prosecution. A group working to replace an oppressive government is criminal from within the country. However, observers from outside the country may encourage and try to protect their work.
The delineation of where public interests override individual needs is different in different points in history and varied political structures.

My inclination is to side toward allowing individual privacy to prevail. In only a limited set of circumstances is a history list relevant to building and prosecuting a criminal case. For example, all of a pedophile’s web activities would be directly relevant to the case. But, generally, reading or search records is supplementary information and restricting the use of the reading history will not derail a criminal investigation.

On the other hand, taking the use of online records even further, I can imagine a world where the search histories of government officials is just as relevant for public interest as their email records. For example, the web pages that the governor visits might contain nuggets of information that is revealing to his or her evaluation as a worthy candidate for re-election. In litigation related to patents, industrial espionage or trade secret disclosure, search and browser records may also be relevant to the case. The activity of the staff of a social media site might reveal that their service stole a feature from a minor player in the Web 2.0 biosphere.

Perhaps these last ideas seem alien only because people haven’t evaluated their potential. The problem is definitely not from any technical considerations. The use of these records could have a chilling effect on anyone in a position of authority’s effectiveness. As Richard’s emphasis, intellectual privacy in areas like this is valuable regardless of the technological possibilities.

Original image: Censo****p. By NICHXAV. [Image license]
Original image: Panopticon. By 张 磊 [Image license]

Privacy Glossary: A – C

Part of assignment one for Privacy directed readings class.

3rd party doctrine If private information is made available to a third party, that party is not liable for information that was collected improperly. For example, an individual gathers information through an illegal recording. If that recording is made available to a publisher, the publisher would not be liable for the information acquired improperly.
Access control A method of protecting information is through control of who has access to information. If the press is allowed to see information about certain criminal proceedings, it may be required to maintain confidentiality. Without controls on the manner of access, publication of such information would be protected by the First Amendment.
Aggregation The processing of information so that unrelated pieces of information can be combined to reveal additional information. For example, allowing a school to combine records with the public arrest records and FBI documentation could give information that knowing one of these items alone would not release. The public availability of this information allows the justification that combining them is not doing anything improper. Aggregation allows the creation of digital profiles that are not complete and may be inaccurate.

However, some forms of aggregation are beneficial such as the ability of credit agencies to collect disparate financial information allows for creditors to have more confidence in providing loans.

Appropriation The use of information about a person in ways that the person did not approve. For example, using a person’s picture in advertising copy without their permission. It can give someone unwanted notoriety and affect the presentation of themselves to others.
Autonomous The individual is autonomous when he or she is able to make decisions without the coercion of the state or others. The decisions and actions that one takes is important and some privacy problems can threaten the individual’s right to make his own decisions.
Balancing In privacy, often the value of protecting an items privacy and its cost are not commensurable. One might be in emotional terms while the other might be a value in public safety. Since they cannot be compared directly, a balancing is necessary to decide which predominates and to what extent. Privacy issues are rarely simple so that the issues to be considered and balanced can be complex and not deduced trivially. Law has trouble with the concept of balance because it cannot easily be reduced to a simple formula.
Balancing freedom of press The desire to prevent disclosure of private information conflicts with the freedom of the press guaranteed by the U.S. constitution. The courts generally side with the press as far as what is permissible. Some information like explicit personal sexual content may be protected, but many situations allow the press to publish sensitive information.
Blackmail The use of information to coerce one to do other undesirable behaviors such as give money due to the demands of another. Through blackmail, a person’s safety is diminished. In addition, blackmail creates a disruptive power dynamic.
Breach of confidentiality The use of information given in confidence to other entities. Some confidences are protected by law such as between a lawyer and client and between a doctor and patient. Other confidences are informal and may not be protected by law. Through a breach of confidence, injury can be caused through the use of information in ways that are harmful to the source of the confidence.
Censoring The prohibition of information from being created, distributed or published. Usually censoring is content based and legislation restricting communication receives strict scrutiny to evaluate whether there is an legitimate need for such information to be controlled.
Communication in confidence By being able to communicate without the interference and observation of others, ideas and creativity are possible in ways that the lack of such confidentiality can be harmful. Through the historical sequence, postal mail, telegraphs and telephone conversations have been regarded as confidential. Internet activity is not protected in that way.

In all of these communication technologies, a third party is required to access the information. The secrecy paradigm would imply that privacy of electronic activity records is not protected. However, individual behavior and expectations is that such information is confidential.

Consequences Individual decisions about privacy questions may have unintended consequences. Allow athletes to be drug tested in schools promotes an attitude that one must prove one’s innocence. Preventing disclosure of embarrassing information infringes on the rights of a free press.
Control The ability to determine where information goes, who has access to it, and how to affect that process.
COPPA Children’s Online Privacy Protection Act. This act affects the collection of information online from children under the age of 13.
Criminal consequences The first barrier to determining the relevance of a privacy violation. Privacy violations that can lead to criminal prosecution are more clearly included in the legal structures and protections

Intellectual Privacy, Privacy Libertarians and Privacy Anarchists

A sign saying "PRIVATE"Richards in “Intellectual Privacy” discusses the necessity of intellectual privacy for developing a well-rounded democratic society. One needs to be able to discuss in private your thoughts and ideas to develop them.

If someone knows where you go on the internet, what you type into a search browser or social media site; if someone knows what you are reading or who/what/when you are talking to other people on the phone, there is a chilling effect–you don’t talk about some things, you don’t text people things that are not meant for, say, the police to find out about when they demand you unlock your phone. The content of your thoughts are no longer protected because, they can be deduced from your communications and actions leading to self-censorship.

The democratic society needs us to be able to be “out there” at times so that we can make informed decisions. If the media has to reveal, explicitly or implicitly who their sources are, important facts are going to be hidden, and people won’t be willing to act as whistleblowers or discuss the candidates and policies in an open manner.

Richards talks about how the First Amendment is in conflict with the disclosure of information and publication of information. Disclosure usually is protected. If a news agency is punished for speaking the truth, they are being denied their right to speak freely–a clear form of censorship in one of the most pernicious ways because it inhibits other media from exercising their rights to avoid their own censorship. In effect, it is the chilling cause of more self-censorship.

However secrecy is not a good model for determining what is or is not private. If I share it with you and your wife something, it isn’t a “secret” but it is still confidential. Some courts’ understanding of privacy don’t account for the complexity of when information is confidential. They can get it that some situations – doctor-patient, attorney-client need to allow for confidences to be held but other less formal situations are less protected.

The transfer of information through an intermediary – for example through the mails or on the phone involve implicitly involve sharing the content of a communication with other in between the two parties. These situations are (or were) very clearly not allowed to be shared without strong motivation. At one point, there was a government “Wiretap Report” that reported information about all of the wiretaps in the U.S. that were approved by the courts. With the PATRIOT act, such a report isn’t possible any more.

Similarly, others are involved with the transfer of information through the internet or on the cloud. These intermediaries such as ISPs and service providers are logically equivalent to the postal service which has access to your mail and (meta)data about the letters: who, when, where. At one point, I could be confident that that information was lost when my letter arrived.

The intermediary isn’t participating in the confidential information and shouldn’t have the rights/duty to share it with others. However, service providers can say what criteria allows them to share information. The bar can be pretty low if the provider wants. The possibilities of secondary use are hard for users to analyze. The need to trust secondary entities to be diligent in their handling of the content becomes an unrealistic expectation. In addition, there is the more subtle hole when a company changes ownership and formerly protected content is no longer confidential.

So, to the title… Privacy libertarians would say that the intermediaries should be able to share as they wish. Their terms of service/privacy statements can be written to allow them to do whatever they feel is profitable. They can be changed at will. Fair information practices give some rights in those situations, but they are not obligatory. The libertarians intend to require that government has no right to interfere in how loose or tight they are in protecting user data.

When commercial interests get thrown in, the incentive to protect the information or to not put in (big) loopholes in privacy statements isn’t there. If I, as a service provider, am allowed to do anything I want, that’s just fine. Facebook is a privacy libertarian. They’re willing to use every keystroke to learn who you are, use A/B testing techniques to find the most effective ways to increase their profits and take advantage of Captology and other behavioral research. They don’t have any reason to care about intellectual privacy. With their deep pockets, they can help make sure that they never will.

Privacy anarchists act as if any privacy and confidentiality is a bad thing. Confidential information needs to be exposed for any reasons. Often the information is relevant, but that is not actually the criteria. Social costs, harms to secondary players and carelessness as to what is included are not really important to privacy anarchists. The euphoria of revealing secrets is more important to privacy anarchists than a thoughtful and reasoned analysis of why, how, when and what is most beneficial.

Intellectual privacy lets me be a better citizen. It lets me work for change. Sometimes the change is small.

For example, a couple of years ago in DeKalb County, Indiana, a group wanted to stop the county from allowing wind turbines to be installed. The discussions within the group of the best strategies and how to combine their efforts was confidential. By not worrying about leakage of their plans, they could freely discuss issues and be as successful as they ended up being.

The change can be big and large interests such as governments, or large corporations could be affected. Power wants to protect itself and inhibiting free communication and intellectual privacy is a good way to accomplish that.

Original image: private. By Bryan Kennedy [Image license]