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]