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Privacy in the 20th Century
EDITOR (John Paul Ryan): How have America's cultural understandings of -- and
expectations for -- privacy changed in the 20th century?
HERB STRENTZ (Drake University/School of Journalism and Mass Communication): A
flippant answer is that we value and understand privacy less today, but we want it more.
Perhaps that is because the references are to different types of privacy. The one that is
valued and understood less is Justice Brandeis' view of privacy as a right most cherished
by civilized people. The privacy that is wanted more is better understood as data
protection and the related fear that people who capture our addresses have captured our
souls.
In saying we value and understand privacy less today, I reflect upon all the horrors of
human behavior that routinely are invoked when we lament the loss of privacy. But I'd add
that we don't distinguish between data protection and a legally enforceable right of
privacy; that people often treat directory information about themselves as more sacred
than intimate information.
And yet, we want privacy more. So much so, that I think we have moved from a
presumption of openness and access in our society-a presumption in which the case had to
be made for secrecy or lack of access to information-to a presumption of secrecy, in which
the case has to be made for openness and access. An amendment to the Drivers Privacy and
Protection Act (DPPA) this year, advanced by Senator Shelby of Alabama and signed by
President Clinton, provides that motorists have to "opt in" if their driver's
license or motor vehicle license information is to be accessible to the public. That is
terribly symbolic. We have legislation that assumes we are outside the community and must
act affirmatively to be a member.
PRISCILLA REGAN (George Mason University/Political Science): Privacy has always
been important to Americans and I suspect will continue to be so. But our understanding of
the cultural context in which we can achieve, or try to achieve, privacy has changed. To
achieve privacy in a small community, one had to make a conscious effort to avoid notice
or scrutiny. On some level, threats to privacy may have seemed less important, as everyone
knew quite a bit about everyone else. This cultural context has changed dramatically. We
deal with enormous organizations-private, public, global-all of whom know very detailed
information about us and see economic value in that information. So I think the size and
number of organizations, coupled with the economic value (commodification) of personal
information, represent a profound change.
A second change, which pertains most particularly to the Internet but is true more
generally, is that there are fewer visual cues about the status of one's privacy. There
are no clear warnings that information is being collected or activities surveilled. Nor
are the implications of information collection or surveillance understood. Many people
driving cars forget that others can see that they are singing, crying, or laughing. Many
surfing the Internet are not aware that lots of information on their browsing is being
automatically captured.
A third change is that people have less control over being in or out of situations
where their privacy might be compromised. Realistically, you can't really "opt
out" of much. You can't use cash to buy a BMW without raising alarms with the
financial and law enforcement world. Most of us don't feel we can, or want to, live only
in the off-line world. Realistically, if we want to be social creatures at this point in
time, we individually can't control [in Harold Lasswell's terminology] who knows what,
when, and how.
| We fear that people who capture our
addresses have captured our souls. [HERB
STRENTZ] |
JUDITH WAGNER DECEW (Clark University/Philosophy): I agree with Priscilla that
Americans have always valued privacy and continue to do so. But the cultural understanding
and expectations of privacy have certainly changed over the last decades. It seems to me
that even early in the century, developing technology helped drive people to be ever more
conscious and vigilant about their privacy, from the advent of mass circulation of
information through newspapers, the invention of the telegraph and telephone, and then on
to wiretapping devices, surveillance techniques, and computer technology, to name a few.
The Internet and data storage capacities of today are just the latest steps in
technological development, which have Americans yearning for more privacy.
In the past, people -- in small towns at least -- were aware that their grocers knew
what they bought (with no need for supermarket cards), and telephone switchboard operators
could listen in on conversations, etc. Thus, if they were bothered, people understood that
they needed to take steps to keep conversations or letters private, and generally they
found ways to protect their privacy on their own when they felt it was important enough to
do so. The threats were pretty tangible. One major change is that today Americans are far
less clear about what the threats to their privacy are. I agree with Priscilla that
"there are fewer visual cues." But also, many people are less aware of the
threats posed today, due to the rapid pace of technological development. Certainly, we
know we are being checked when we pass through airport security, and we are willing to put
up with that for the security of the flight. But in general, technology makes the threats
to our privacy less tangible. It is more difficult to know when or if our privacy is being
compromised, and thus it is often not easy to take a proactive stance to protect it. How
many of us know how much surveillance is really going on, how much of our data is being
collected and aggregated and used, and by whom? The unknown is frightening, and thus
another change may be in the cultural understanding of privacy—that it is more important,
yet also more elusive.
JOHN GILLIOM (Ohio University/Political Science): First, I would want to unpack
terms like "Americans" and "privacy." There is good reason to believe
that there are important differences in how people who are differently situated by class,
gender, and context approach the collection of social issues captured in the idea of
privacy. Second, if we poke the word privacy it explodes into a whole collection of
concerns. From some simple peace and quiet, to data security, to Fourth Amendment
analysis, to birth control decisions, to family autonomy, and so on, this poor overworked
term is, I think, stretched so far that we run the risk of losing a real sense of its
workable meaning.
Given that context, my sense is that most Americans both have and expect far more
household and intimate privacy than prior generations. The rise of private bedrooms,
multiple interior bathrooms, and nuclear family homes, coupled with the decline of the
small town and systems of local power and authority that came with them, means that most
of us have a lot more control over local exposures. But, at the same time, we face a
sweeping loss of control over new, more anonymous, and less confrontable invasions. The
new capacities for state and corporate surveillance over criminal behavior, consumer
behavior, financial standing and conduct, educational performance, and other facets of our
lives have rewritten the landscape upon which the politics of privacy occur. What we face
now are institutions more powerful and comprehensive than those in the days of old,
mechanisms of surveillance and inquiry with a reach and capacity far exceeding the days of
old, and, given the risks and interdependencies of contemporary life, more reason,
perhaps, to want to control each other.
| Organizations know detailed
information about us and see economic value in it. [PRISCILLA REGAN] |
DAVID SORKIN (John Marshall Law School/Center for Information Technology and Privacy
Law): I think there is a growing sense of powerlessness and futility about privacy,
especially with regard to information about ourselves. Last year Sun Microsystems' CEO
Scott McNealy said, "You have zero privacy anyway ... get over it." That's an
exaggeration, but it reflects the sense of many people that we lack the power we once had
to exercise control over our personal information. The distinction between public and
private spheres has blurred over the years, and the private sphere is much more limited
than it used to be.
Part of the problem is a lack of understanding. We don't know how information about us
is collected-we often aren't even aware that it is being collected-and we don't know how
or for what purposes it is being used. We also don't know (and therefore often fear) the
consequences of "opting out." For example, what happens if I don't fill in the
Census form or refuse to write my Social Security number on a check or an application for
credit or even a tax return? As Priscilla Regan suggests, "opting out"
frequently isn't a realistic option, but often we just don't know whether or not it is.
Just as important, however, is the fact that we don't place much (or sufficient) value
on incremental infringements of our privacy. Partly this is because personal information
gains great value only when it is exchanged, aggregated, and mined, processes that
frequently are invisible to most of us. At the margin, each piece of data that a
supermarket can collect about me when I use my "loyalty card" to obtain a small
discount seems to be of little consequence but could be quite dangerous if years later it
becomes part of a profile used to make insurance coverage decisions. As the sheer number
of instances in which our personal information is used skyrockets, tending to each
infringement is more trouble than it is worth. How many people conscientiously write to
every bank, insurance company, etc., with whom they do business to request that the
company not share information about them with third parties or its own
"affiliates" and then repeat this process each time the company merges with
another firm? And among the 99% of us who hate receiving calls from telemarketers, how
many have bothered to get listed in the Direct Marketing Association's do-not-call
database?
HERB STRENTZ: Increasingly, people want to protect information that warrants
access by the rest of us -- e.g., such manifestly public records as arrest records,
bankruptcy proceedings, divorces, and even deaths. This is what I earlier referred to as
the "presumption of secrecy," which seems to be growing in our society.
PRISCILLA REGAN: Herb raises the interesting and important issue of public
records, and I'm not sure I agree with his conclusion. I think we need to investigate why
certain records have been given the status of "public records" and reconsider
whether they still warrant this status, in terms of both the historical reasons and
changing conditions and attitudes. In the past, "public records" were maintained
by public authorities, and one had to go to a public place and deal with a public official
to gain access to those records. Now, the records are still maintained by public
authorities but can be accessed, in many cases and increasingly, over the Internet.
Additionally, there is a market in resale, manipulation, and re-aggregation of public
records, all done by private sector organizations.
Along these lines, I find the shift in control that is reflected in the amendment to
the DPPA, to which Herb refers, to be quite laudable. I don't think that the assumption is
that we are outside the community, but, rather, that our name, address, physical
characteristics, and Social Security number are not maintained by the state for resale to
private sector companies and stalkers.
JUDITH WAGNER DECEW: I'm not sure that I agree with Herb's perspective that we
have moved from a presumption of openness and access in this society to a presumption of
secrecy. I have the sense that the government, as well as large, powerful, and rich
corporations, not only wants and expects, but also in general, broad access to information
and data with few restrictions.
Let me give a different example. Not long ago, Beth Israel-Deaconess Medical Center in
Boston installed a huge new computer system with thousands of terminals. With respect to
electronic patient medical records, the software designers understood the conflict between
protecting confidentiality of records for patients and providing access to information to
medical staff and perhaps even secondary users such as insurance companies. They decided
to opt for a program that allowed access as the default, urging that confidentiality could
be protected by requiring audit trails. (Of course, audit trails only tell who has
accessed the information after the fact and tell nothing about what has been done with
it). The presumption was that access be allowed. This is in stark contrast to the way some
physicians in the Netherlands, for example, prefer to handle electronic medical data,
where the default is that access is denied and those who desire the data must defend their
need to know. The technology is available to set up the defaults either way, and it is a
moral and political choice that must be made.
If the Beth Israel-Deaconess approach is most typical in America, and I think it is,
then the presumption is in favor of openness, not privacy. Thus, I see the shift in
control in the amendment to the DPPA, to which Herb refers, as the exception, not the
rule. I differ with Herb's descriptive assessment that we have moved to a society with a
presumption of secrecy. Moreover, I suspect I disagree with him normatively as well. Given
the enormous proliferation of information, as well as individuals and agencies wanting
that information, I think that it would be preferable to endorse a presumption in favor of
privacy wherever possible, requiring those who want data to justify their need to know.
Like Priscilla, I favor the move in the DPPA amendment.
JOHN GILLIOM: I resoundingly agree with Judith and others that Americans do
still care about privacy. To uncover the nature of these concerns, our research may need
to try some different approaches. The common public opinion surveys that gather responses
to pre-coded question may not be able to get at people's concerns in this area. In the
project that I am currently completing, we undertook in-depth, semistructured interviews
with welfare mothers facing intensive computer and caseworker surveillance of their
financial and household situations. We sought to get an unstructured, more ethnographic
sense of how they perceived and spoke about surveillance. We never mentioned words like
surveillance, privacy, rights, or other key terms in the ongoing public debates, and
neither, for the most part, did the people we interviewed. We found that while a few
talked about privacy issues, more spoke of fear, degradation, or personal insult, and-the
most central point-how the constant surveillance made it difficult for them to care for
their children. As everyone in the field knows, you can't make it on welfare if you follow
all the rules.
Because of these findings, I began to worry that the discursive monopoly held by the
word privacy may be truncating our public discussions and preventing a full accounting of
how people experience, critique, and resist surveillance programs. There may be a lot more
going on out there than is captured by the public discussions in the media and the
legislatures.
JUDITH WAGNER DECEW: The findings from John's project with welfare mothers are
quite revealing. In my book on privacy (DeCew, 1997: 74) I wrote: "Protection of
privacy enhances and ensures the freedom from [scrutiny, prejudice, coercion, pressure to
conform, and the judgment of others] that we require so that as self-conscious beings we
can maintain our self-respect, develop our self- esteem, and increase our ability to form
varied and complex relationships with others." Thank you, John, for a great
illustration.
PRISCILLA REGAN: John Gilliom raises a really important point. Invariably,
discussions of privacy involve the concept of my "right to privacy," which tends
to individualize the concern. At the same time, privacy is put in conflict with other
rights and interests; an adversarial situation is envisioned-either privacy or whatever.
The possibility of having both privacy and the other is not explored. For example, with
many new information systems (the Internet, Intelligent Transportation Systems, etc.), the
possibility of privacy is dependent upon system architecture. If it's not addressed at
that stage of development, its inclusion immediately raises conflicts with other parts of
the architecture.
The notion of "control," which has been a part of many definitions of privacy
(see Westin), gets at the fear, degradation, and ability to act that John found in his
interviews. Information is power, and those who know things about you, often without your
knowledge, have the potential to exercise power over you. The sense of the
"dossier" changing how people act was part of the privacy discourse in the
1960s, and part of Orwell's 1984. Maybe we need to revisit our thinking about this.
HERB STRENTZ: To sum up, I see three sweeping changes in our understandings
about privacy in this century. First, we show less sensitivity to government intrusion of
privacy. Thanks to the war on drugs, we enjoy less Fourth Amendment protection. As Justice
Hans Linde, former Oregon Supreme Court Justice, pointed out, "The premise of a
higher necessity is everywhere the arch enemy of constitutional rights." So at
century's end, we've bid adieu to the Fourth Amendment. And yet, from almost every
quarter, the news media are viewed as greater threats to privacy than government. Second,
we are increasingly a society that, as the saying goes, "knows the price of
everything and the value of nothing." So the Brandeis vision of privacy is off the
screen; privacy of the database is front and center. Finally, we are a less civil, less
engaged people. We find it easy to know, and often want to know, information about
strangers that, if requested in the early 1900s, would have resulted in a buggy whipping.
Moreover, as a less civil, less engaged people, we are far more frightened and seek
comfort in the notion that denying access to directory information will make the world a
safer and saner place for us. The news media do little to counter these trends and
probably exacerbate them.
DAVID SORKIN: Herb suggests that we have become less sensitive to government
intrusion of privacy. I'm not sure I agree with that in a general sense, but certainly it
is true that even though we tend to put less trust in our government, we are perfectly
willing to trade our privacy away for increased security. This isn't a uniquely American
phenomenon; surveillance cameras in public places, for example, are much more common
elsewhere than in the United States.
| If we poke the word privacy, it
explodes into a collection of concerns. [JOHN
GILLIOM] |
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