Why The White House Is Wrong On Privacy

Johann Karl SpiesThe new White House report on big data and privacy would surely be more interesting if it started with a factually-correct premise.

“Americans have always cherished our privacy,” says the White House. “From the birth of our republic, we assured ourselves protection against unlawful intrusion into our homes and our personal papers. At the same time, we set up a postal system to enable citizens all over the new nation to engage in commerce and political discourse. Soon after, Congress made it a crime to invade the privacy of the mails.”

The reality is different.

Most people in America assume our mail will be unread and that Hessians will not be quartered in our homes — perhaps the basis for White House claims regarding intrusions and personal papers. But the concept of “privacy” as most people understand the idea — the stuff “Americans have always cherished” — did not begin with the founding of our country and hasn’t got much to do with colonial history.

Privacy First Defined in 1890

The word “privacy” does not appear in either the Declaration of Independence or the Constitution. It’s a concept which largely flows from an 1890 article in the Harvard Law Review by Samuel D. Warren and Louis D. Brandeis. Privacy, as they saw it, is the right to be left alone, to have a zone of personal space.

Notice that 1890 is more than a century after the “birth of our republic.” To this day there is no such thing as a federal right to privacy, an over-arching national principle to protect your words and data from either government or commercial snooping.

People in the past have had privacy expectations and until recently those assumptions were fairly easy to achieve. You could shop anonymously and communicate in private. Your political views belonged to you and you could speak without being recorded, traced or tracked. No one worried about secure Internet servers — or the now-disclosed Heartbleed virus which made them insecure.

One by-product of the pre-Internet Era was that you could make mistakes and those mistakes would not be held against you forever.

Today things are different.

“You have zero privacy anyway,” said Sun Microsystems chief executive Scott McNealy in 1999. “Get over it.”

For instance, the Postal Service — to the best of anyone’s knowledge — does not open First Class mail.

However, it does log addresses and return addresses. According to The New York Times, “the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.”

Privacy and Donald Sterling

If you don’t think personal space is a big deal you might want to consider the once-private ramblings of Donald Sterling, the billionaire owner of the LA Clippers basketball team. You can condemn Sterling in every way for his words — he’s not anyone’s hero — but you might also want to consider the larger issue, that if Sterling’s private thoughts can be made public so can yours.

The White House report laments the declining state of privacy but proposes no changes to the Communications Assistance for Law Enforcement Act (CALEA) or the secret Foreign Intelligence Surveillance Court (FISA). Instead, it wants to create a toothless Consumer Privacy Bill of Rights, an idea which in terms of practical impact will go nowhere because if it was truly successful much American commerce would grind to a halt. You can’t have targeted marketing without data and you can’t have Big Data without constant violations of traditional notions of privacy.

By the way — and no surprise here — the new White House proposals have nothing to say about reporter’s privilege, the idea that journalists have a right to confidential sources in the same sense as a doctor and patient, a priest and parishioner or a lawyer and client. (I first wrote about what was then called “newsman’s privilege” for The Quill in 1971 and since that time there has been no substantive change which would fully protect reporters.)

Privacy and Real Estate

Meanwhile, in the world of real estate, much information is public and has always been public because it protects your interests.

As a homeowner you want title to your home publicly recorded so no one else can claim to own what’s yours. You want mortgage notes to be locally recorded every time they are bought and sold so you know who to pay, a concept which the lending industry has largely gutted during the past decade — with the result that the country may be awash in wrongful foreclosures.

If you want to check your property holdings just go to the online property assessment directory. You’ll be happy to see that what you own is public information — and hopefully correct public information.

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1 Comment on "Why The White House Is Wrong On Privacy"

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  1. The Obama administration has told the Supreme Court that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”

    See: Supreme Court Rejects Appeal From Reporter Over Identity of Source

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