The Tangibility of Privacy

Privacy: everybody wants it, but not everyone understands it. When I refer to privacy, I mean people’s data that they leave throughout the Internet as they browse. Two examples demonstrating the inability to make privacy a conceptual fact are the demise of “Do Not Track” (DNT) talks and the failure to create a privacy market. Both attempts suffered from the inability of stakeholders to conceptualize privacy as an economic unit and agree upon privacy’s definition.

Much of this failure can also be attributed to the fact that every day people, while professing to care about their privacy, are equally eager to click “agree” and access online content. Adam Theirer’s piece “Why I Haven’t Yet Given Up Hope on Contracting Around Personal Data,” explains that regulating privacy requires reducing transaction costs surrounding it. The government and Internet companies would face high transaction costs due to the sheer number of websites that people visit, which would make keeping track of all that information difficult. I would also add that a transaction cost could be the number of stakeholders who are impacted by privacy markets, and getting them to come to a consensus is no small feat.  Natasha Singer’s New York Times article “Do-Not-Track Talks Could be Running Off the Rails” highlights how these transaction costs manifest in DNT policy talks. The stakeholders and industry could not agree on standards of what constituted privacy, which prevented movement forward. The stakeholders also conflicted with the interests of advertisers, who are not even legally required to honor DNT requests. In my opinion, until people truly take control over their own privacy and demand it’s protection (treating it akin to identity theft), then no true progress can be made towards advancing DNT.

The understanding of privacy and privacy law in the US hold an important place in the American legal system and psyche. Daniel Solove notes that, while the US Constitution does not explicitly mention privacy, “[t]he framers’ distaste for excessive government power to invade the privacy of the people was forged into the Bill of Rights in the Third, Fourth, and Fifth Amendments” (1-5). Solove also points out as technology changed, privacy and information became much more concentrated in private enterprises (1-46). This can be seen today where large media companies like Facebook and Google target users with advertisements specific to them based on their previous Internet history.

Another important area of the privacy debate is highlighting how American notions of privacy are much different than European notions of privacy. Bob Sullivan and Nikolaj Nielsen point to these differences, explaining how in Europe, an individual’s right to his or her own privacy trumps any commercial interests. This is written in EU law in the 1995 Directive on Data Protection. Additionally, he notes that every EU country MUST pass national privacy laws and create data protection authorities. Sullivan discusses how the use of personal information to persecute Jews in the Holocaust has shaped European views towards data privacy and is an interesting reason as to why Europeans are more concerned about the protection of privacy rights. Nielsen further states how the 1995 Directive on Data Protection has withstood legal tests coming with the price of conducting business in the EU. Know knowing the history of personal data violations in Europe, it is perhaps more understandable why the EU is so concerned about the privacy rights of European citizens.

Have Europeans successfully made the concept of privacy more tangible than Americans? I think that the EU has. By viewing it as a type of extension of self, individual privacy is put into terms that people understand. You wouldn’t want to be forced to do something against your will.  Private information online without the subject’s consent to be viewed it through a similar lens. In contrast, Americans see their privacy as a nebulous concept that they should care about, but is not thought as an extension of themselves. The logistical challenge government faces when trying to protect privacy is the sheer extent of data a person produces, as the number of sites and virtual platforms only increases. The recent NSA PRISIM scandal has seemingly reignited many of the debates surrounding privacy, and as the country moves forward, it remains to be seen the role privacy will play in any types of government reforms.

WORK CITED

Nielsen, Nikolaj . “EU Bill Gives Web Users ‘Right to be Forgotten’,” EU Observer (Jan. 25, 2012), http://euobserver.com/justice/115020.

Singer, Natasha. “Do-Not-Track Talks Could be Running Off the Rails,” NY Times (May 3, 2012), http://bits.blogs.nytimes.com/2013/05/03/do-not-track-talks-could-be-running-off-the-rails/.

Solove, Daniel. A Breif History of Information Privacy Law. Proskauer on Privacly, PLI 2006. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914271.

Sullivan, Bob. “‘La Difference’ is Stark in EU, U.S. Privacy Laws,” NBC News (Oct. 19, 2006), http://www.nbcnews.com/id/15221111/ns/technology_and_science-privacy_lost/t/la-difference-stark-eu-us-privacy-laws/#.Ug2pC5K2Mwo.

Thierer, Adam, “Why I Haven’t Yet Given Up Hope on Contracting Around Personal Data,” IAPP Privacy Perspectives (Aug. 6, 2013), https://www.privacyassociation.org/privacy_perspectives/post/the_problem_with_formal_contracting_and_data_ownership_as_privacy_solutions.

Andrew Postal

Andrew is a former CCT Graduate Student.