A version of this post appeared as a Special Guest Column to the Seattle Times in print and online.
Today we celebrate the 235th anniversary of the signing of the Declaration of Independence. It got me thinking about how our American commitment to life, liberty and the pursuit of happiness applies to today’s high-tech, fast-paced, social-media world, especially for privacy and speech rights.
So let’s drill into this right to privacy, a subject that has captured national attention lately in both the mainstream media and Congress. The Constitution provides for no such privacy right among us citizens. The Bill of Rights does offer privacy protections from the government. The Third Amendment protects our homes from government intrusion, and the Fourth Amendment protects our homes from unreasonable government searches and seizures.
But the Constitution doesn’t provide for privacy protections among our fellow citizens. For that, we’re largely left to the common law. This more pedestrian, common-law idea of privacy was discussed in “The Right to Privacy” (Harvard Law Review, 1890) by the future Supreme Court Justice Louis Brandeis and his law partner Samuel Warren. Warren and Brandeis quote from an 1880 treatise by Michigan Supreme Court Justice Thomas Cooley who introduced a “right to be let alone” in the context of common law torts1 — basically the 19th-century version of “don’t tase me, bro.”
So, privacy embodies an essential value of discretion — the expectation “to be let alone” by government and citizen. Of course, in tension with this value is a value of disclosure, embodied by the First Amendment, which guarantees freedom of press, individual speech and peaceful assembly.
It is within this uniquely American tapestry that we grapple with the deluge of new technological devices and social media. Should we have the right to have ourselves erased from the Internet, surf without being tracked, make an unrecorded phone call or conduct an anonymous search? As parents, how do we balance the responsibility to keep our kids safe online with respect for their privacy? (As a Dad, I have a few tips on this one.)
The good news is that we’ve all been wrestling with these heady issues for 235 years, and our long experience balancing discretion with disclosure can really help today.
For example, when it comes to “smart grid,” I’m a privacy-conservative. Smart grid is a set of technologies that monitors the power usage of the appliances in our homes. Frankly, my home (and body) are places of the highest discretion. How much time I spend staring at the fridge with the door open is my business. In the home, discretion rules, period.
But when in public, disclosure is king. I was leaving a baseball game a few weeks ago, and a woman was taking pictures of the fans as they left the stadium. In today’s world, I would expect my picture to be uploaded, tagged and available to anyone online. It’s the Internet equivalent of the small-town refrain: “Hey, did you see Jim at the game?”
Social media is less than a decade old. We are at the beginning of this journey to map our traditional values to this new medium. The question is whether this medium can support our values? And, if so, how?
In a recent New Yorker piece, “Small Change — why the revolution will not be tweeted,” Malcolm Gladwell criticizes social media for favoring vast, “weak-tie” relationships where disclosure is maximal and discretion is minimal.
He contrasts these relationships to small, “strong-tie” groups that enjoy deep trust because of the secrets they keep. Gladwell describes the relationship of the Greensboro Four who led the 1960 lunch counter sit-ins in North Carolina. The four discreetly discussed the idea of a sit-in late into the night for nearly a month over beers smuggled into their dorm room. The day before the sit-in, they challenged each other in the most in-your-face way when one of them asked: “Are you guys chicken or not?”
There is historic power that emerges from breaking the tension between discretion and disclosure. Our founders engaged in a similar social dynamic as the Greensboro Four — brutally honest disclosure among themselves and saintly discretion with everyone else.
The values of privacy and speech, discretion and disclosure were at play 235 years ago in Philadelphia, 51 years ago in Greensboro, and we Americans are reflexively shaping social media in the same ways today. These are the values that allow us to trust each other, to challenge each other, and ultimately to depend on each other. Let’s not forget that on this Independence Day.
1 Thanks to Drexel Professor Toni Carbo for setting me straight on the nuances of this history.