Peeping Toms, reporters, and door-to-door salesmen have always done it. The Stasi, the SAVAK, and the KGB were notorious for doing it. Photographers do it. So do hackers, identity thieves, and wearers of X-ray Specs. Employers and school principals see it as a normal part of their job. But now Google, Microsoft, Apple, Amazon, the NSA, Britain’s GCHQ, and the DGSE in France are doing it as well. And that’s why, thanks in part to Edward Snowden’s leaks, which technically invaded government privacy to expose the widespread practice of invading individual privacy, the phrase of the year for 2013 is invasion of privacy.
Google Glass or wiretaps? Invading privacy can be a party game as well as a government mandate.
2013 was a big year for invasion of privacy, but the legal defense of privacy began over a century ago, and it too was sparked by new technologies that threatened to erode individual privacy. In 1890, writing in the Harvard Law Review, Samuel D. Warren and Louis D. Brandeis complained that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” They asserted the need for a legal right to privacy to counteract new printing and photographic technologies that opened the door to intrusive gossip columnists and press photographers.
The legal right to privacy continued to develop over the next seventy-five years. In Griswold v. Connecticut (381 U.S. 479 [1965]), striking down Connecticut’s ban on the use of contraceptives, the United States Supreme Court recognized a constitutional right to privacy not in the text of the Constitution, where the word privacy is never used, but instead in the Constitution’s “penumbras” and “emanations”:
specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance [and] create zones of privacy.
Today, once again, new digital technologies have brought new invasions of our privacy, along with new justifications for the invasions. In 2010, Facebook’s Mark Zuckerberg argued that changes in social norms had killed privacy altogether, and most major internet players—Microsoft, Google, Amazon, Apple, Yahoo, to name only a few—agree that since privacy is dead, they can freely collect, analyze, and sell as much data as possible about their users’ online behavior, in order to influence that behavior and maximize their profits.
Many Americans seem to think that such corporate invasions of their privacy are a small price to pay for the convenience of using the internet, and besides, that’s how capitalism is supposed to work. However, they see government invasions of privacy as altogether different. 2013 brought revelations, thanks to Edward Snowden, that the governments of liberal democracies like the United States and Great Britain have eagerly joined more-autocratic states like China, Russia, and Cuba in secretly collecting massive amounts of data from their citizens, all their citizens, not just those suspected of criminal, subversive, or terrorist activity.
TIA, Total Information Awareness, is one of many U.S. government initiatives to collect everything about everyone.
These governments are harvesting the data of friends and foes alike, not just everyone’s public comings and goings as recorded by CCTV, or their published, and therefore public, tweets and blog posts, but also, and without a warrant, every private phone call, email, and text made by citizens and aliens both inside their borders and across the globe. Each government caught in the act insists that its invasions of privacy are necessary to protect the nation from terrorist attacks. The director of the NSA even insisted that the agency’s unbridled snooping actually preserves civil rights and liberties, praising
[the] NSA's staunch commitment to protecting and upholding the privacy and civil liberties of the American people even as we keep our nation safe.
The agency went so far as to advertise for a Civil Liberties and Privacy Officer, but the job notice is gone from the website and it’s not possible to find out from that website if the job was ever filled.
And here’s the ultimate irony, the one that makes invasion of privacy the hands down phrase of the year. Apparently the National Security Agency was able to gather all its data by hacking into computers at internet firms like Google, Microsoft, and Apple. According to one of Edward Snowden’s leaks, unbeknownst to Apple, the NSA created a secret iPhone backdoor as early as 2008, just a year after the phone’s initial release:
the NSA had worked on software that would allow it to remotely retrieve virtually all the information on an iPhone including text messages, photos, contacts, location, voice mail and live calls.
When these break-ins were made public, the same firms whose business model requires them to surreptitiously harvest user data announced that they were shocked, shocked to learn that spying was going on on their own servers, servers which they had thought to be impenetrable and secure.
Google, Apple, and Microsoft announced that they were shocked, shocked, that spying was going on via their own servers.
What’s shifted in these widespread invasions of privacy are not social norms—admittedly, ideas about privacy change from age to age, but personal privacy remains an important value, even to internet executives. What has shifted are business and government policies that set the boundaries between public and private behavior in ways that match their financial and strategic goals, only retreating from those positions—or pretending to retreat—if there’s too much pushback from those whose privacy is invaded.
That pushback is becoming louder, in the courts and in Congress, in private conversations, insofar as these are still possible, on line, and in the press. On New Year’s Day, the New York Times called whistle-blower Edward Snowden’s revelations about NSA surveillance a public service that did not harm national security. The editors called on the American government to offer Snowden either clemency or a plea bargain that would allow him to return from his Russian exile without risking life imprisonment and before the Russians invade his privacy any further. But the government’s invasion of privacy is too entrenched to succumb to leaks or publicity. Just before the Times editorial appeared, a federal district court judge ruled that Customs and Border Protection agents could search and seize the computers, tablets, or mobile phones of anyone entering the country, citizen or not, without probable cause, and without a warrant. The judge reasoned that, if travelers wanted to keep their data private, they should leave their digital devices at home.
Both digital devices and invasion of privacy are here to stay, but advising people who don’t want their privacy invaded to stay off the grid isn’t the answer (Unabomber Ted Kaczynski went off the grid, after all, and he’s no role model). Instead, the NSA needs to make invasion of privacy more palatable. It could offer Apple and Yahoo the kind of wrap contracts that these companies routinely offer their own customers: they might be less troubled by the government’s hacks if the NSA had only asked them to click “Agree.” And individual Americans would be less upset about the NSA’s routine invasion of their privacy if the agency accompanied its surveillance with context-sensitive ads, because, after all, that’s how capitalism is supposed to work.
Above: Google and Microsoft might find NSA hacking more acceptable if they had to agree to a wrap contract first. Below: There’s nothing like a context-sensitive ad to placate individual web users.
