“Sunlight is said to be the best of disinfectants.”
— Louis Brandeis
Since the Summer of Snowden put “big data” on my father’s radar, the White House has dispatched John Podesta on a big data listening tour; Julia Angwin, former Wall Street Journal reporter, just released a book on digital dragnets; and new data broker legislation has been introduced in the Senate.
Given my prior pontification on privacy frameworks, it’s time to sharpen the pencil on (1) transparency, (2) private places, and (3) appropriate data use.
Transparency Philosophy
In Julia Angwin’s new book, Dragnet Nation, it was nice to see this:
Jim Adler, the chief privacy officer at Intelius, one of the few data broker executives who attended privacy conferences and took calls from privacy advocates.
Thanks Julia. Sure, I’ll take a bow for engaging with tough, fair critics. Frankly, we desperately need champions for privacy rights to buffet the forces that thirst for increasingly more information. These values of discretion and disclosure are in tension and we need heated debate to find the right balance.
However, we can’t have this debate in the dark. Powerful corporations and governments need to strike a transparent tone and, where reasonable, provide the opportunity for recourse and discourse.
Information asymmetry is power. In any negotiation, leverage is about “having something” on your adversary. Frank Underwood has taught this lesson well. If your adversaries are your customers or your citizens, the bar is pretty high to justify knowing their secrets.
Get Off My Lawn (wherever that is)
The lines are blurred on where public space ends and private space begins. The FBI got this one very wrong in US v Jones. Without a clear definition of whether a place is private or public, it will — like beauty — be in the eye of the beholder.
In his 1967 treatise, Privacy and Freedom, Alan Westin said: “Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others.” Too often, we don’t know when we’re in public or private, so don’t have the transparency to strike the right balance.
Nuala O’Connor, the newly minted CEO of the Center for Democracy and Technology, has a good take on this dilemma. There are really three places — private, public, and the curtilage between them. Curtilage legally defines the land immediately surrounding your house. Our new world of digital devices defines this curtilage. I think Nuala may be on to something here.
Use, Don’t Abuse
The Fair Credit Report Act (FCRA) of 1970 defines appropriate use of any data about you — public or private — when it’s used for credit, employment, insurance, and housing. Expect this permissible use doctrine to extend to unfair data uses like discriminatory pricing, high-tech profiling, and leaks of private information.
The Places-Players-Perils privacy framework is only as good as knowing how private the data is, who the players are, and what is being done with the data. Personal devices, the Internet of Things, and big data are on the rise. The stock of transparency will rise right along with them.
