The Future of Privacy: More Data and More Choices

As I wrapped up my time at the Future of Privacy Forum, I prepared the following essay in advance of participating on a plenary discussion on the “future of privacy” at the Privacy & Access 20/20 conference in Vancouver on November 13, 2015 — my final outing in think tankery. 

Alan Westin famously described privacy as the ability of individuals “to determine for themselves when, how, and to what extent information about them is communicated to others.” Today, the challenge of controlling let alone managing our information has strained this definition of privacy to the breaking point. As one former European consumer protection commissioner put it, personal information is not just “the new oil of the Internet” but is also “the new currency of the digital world.” Information, much of it personal and much of it sensitive, is now everywhere, and anyone’s individual ability to control it is limited.

Early debates over consumer privacy focused on the role of cookies and other identifiers on web browsers. Technologies that feature unique identifiers have since expanded to include wearable devices, home thermostats, smart lighting, and every type of device in the Internet of Things. As a result, digital data trails will feed from a broad range of sensors and will paint a more detailed portrait about users than previously imagined. If privacy was once about controlling who knew your home address and what you might be doing inside, our understanding of the word requires revision in a world where every device has a digital address and ceaselessly broadcasts information.

The complexity of our digital world makes a huge challenge out of explaining all of this data collection and sharing. Privacy policies must either be high level and generic or technical and detailed, each option proves of limited value to the average consumer. Many connected devices have little capacity to communicate anything to consumers or passersby. And without meaningful insight, it makes sense to argue that our activities are now subject to the determinations of a giant digital black box. We see privacy conversations increasingly shift to discussions about fairness, equity, power imbalances, and discrimination.

No one can put the data genie back in a bottle. No one would want to. At a recent convening of privacy advocates, folks discussed the social impact of being surrounded by an endless array of “always on” devices, yet no one was willing to silence their smartphones for even an hour. It has become difficult, if not impossible, to opt out of our digital world, so the challenge moving forward is how do we reconcile reality with Westin’s understanding of privacy.

Yes, consumers may grow more comfortable with our increasingly transparent society over time, but survey after survey suggest that the vast majority of consumers feel powerless when it comes to controlling their personal information. Moreover, they want to do more to protect their privacy. This dynamic must be viewed as an opportunity. Rather than dour information management, we need better ways to express our desire for privacy. It is true that “privacy management” and “user empowerment” have been at the heart of efforts to improve privacy for years. Many companies already offer consumers an array of helpful controls, but one would be hard-pressed to convince the average consumer of this. The proliferation of opt-outs and plug-ins has done little to actually provide consumers with any feeling of control.

The problem is few of these tools actually help individuals engage with their information in a practical, transparent, or easy way. The notion of privacy as clinging to control of our information against faceless entities leaves consumers feeling powerless and frustrated. Privacy needs some rebranding. Privacy must be “appified” and made more engaging. There is a business model to be made in finding a way to marry privacy and control in an experience that is simple and functional. Start-ups are working to answer that challenge, and the rise of ephemeral messaging apps are, if not perfect implementations, a sure sign that consumers want privacy, if they can get it easily. For Westin’s view of privacy to have a future, we need to do a better job of embracing creative, outside-the-box ways to get consumers thinking about and engaging with how their data is being used, secured, and ultimately kept private.

Voter Privacy and the Future of Democracy

As the election season gets into full swing, I teamed up with Evan Selinger (and an otherwise off-the-grid coworker) to discuss some of the privacy challenges facing the campaigns. A recent study by the Online Trust Alliance found major failings’ with the campaigns’ privacy policies, and beyond the nuts and bolts of having an online privacy notice, political hunger for data presents very real challenges for voters and perhaps more provocatively, for democracy. // More at the Christian Science Monitor’s Passcode.

No Privacy/No Control

This week, the Pew Research Center released a new report detailing Americans’ attitudes about their privacy. I wrote up a few thoughts, but my big takeaway is that Americans both want and need more control over their personal information. Of course, the challenge is helping users engage with their privacy, i.e., making privacy “fun,” which anyone will tell you is easier said than done. Then again, considering we’ve found ways to make everything from budgeting to health tracking “fun,” I’m unsure what’s stopping industry from finding some way to do it. // More on the Future of Privacy Forum blog.

Technology Policy Institute Tackles Big Data

A recent paper by the Technology Policy Institute takes a pro-business look at the Big Data phenomenon, finding “no evidence” that Big Data is creating any sort of privacy harms.  As I hope to lay out, I didn’t agree with several of the report’s findings, but I found the paper especially interesting as it critiques my essay from September’s “Big Data and Privacy” conference.  According to TPI, my “inflammatory” suggestion that ubiquitous data collection may harm the poor was presented “without evidence.” Let me first say that I’m deeply honored to have my writing critiqued; for better or worse, I am happy to have my thoughts somehow contribute to a policy conversation.  That said, while some free market voices applauded the report as a thoughtful first step at doing a a Big Data cost-benefit analysis, I found the report to be one-sided to its detriment.

As ever in the world of technology and law, definitions matter, and neither myself nor TPI can adequately define what “Big Data” even is.  Instead, TPI suggests that Big Data phenomenon describes the fact that data is “now available in real time, at larger scale, with less structure, and on different types of variables than previously.”  If I wanted to be inflammatory, I would suggest this means that personal data is being collected and iterated upon pervasively and continuously.  The paper then does a good job of exploring some of the unexpected benefits of this situation.  It points to the commonly-lauded Google Flu Trends as the posterchild for Big Data’s benefits, but neglects to mention the infamous example where Target was able to uncover a teenage customer was pregnant before her family.

At that point, the paper looks at several common privacy concerns surrounding Big Data and attempts to debunk them. Read More…

National Security Journalism: From Watchdog to Lapdog

In 2011, as I was wrapping up law school, I wrote a lengthy, ranting paper about the problems watchdog journalism faced in effectively reporting about national security and foreign affairs.  Fueled by a combination of a course on media law, a recent set of disclosures by WikiLeaks, and an unhealthy amount of Sunday morning talk show viewing, I blamed the “systemic professionalization” of our major media for weakening the press’ watchdog function vis-a-vis government.  Specifically, I argued that objectivity in journalism had the unintended consequence of making major media extremely susceptible to having its coverage of foreign affairs and national security issues in general manipulated by outside actors, especially the government.

A combination of cost-cutting and the twenty-four hour news cycle has forced the media to rely on information provided directly from government officials, and this sort of access has become arguably as valuable as rigorous documentation, critical analysis, or investigations. This leads to an outcome where government becomes the arbiter of what news the public gets to learn.  Over time, my thinking was that reliance on government for the story indirectly reduces the press’s credibility. Since government briefings have become notoriously managed and “spun,” the perverse result is that government information is often considered more reliable or more truthful if it given anonymously and off-the-record, which produces the deluge of anonymous sourcing we see in the media today.

It is my belief that one of the key values of a free press is to serve as a check on government action, but when this sort of government access is combined with a slavish devotion to objectivity, it has the unintended consequence of making our watchdog press more a neutral arbiter than an antagonistic body that oversees government behaviors. Cloaked in secrecy, national security issues provide government officials with an opportunity to shape reality as they wish it — as we have seen repeatedly over the last year.  I.F. Stone one famously stated that “every government is run by liars and nothing they say should be believed,” but how often do our most esteemed journalists dare call a politician’s lie a lie?

In 1947, the Commission on Freedom of the Press suggested that market forces and citizen efforts could be used to improve the media’s watchdog capability.  When I wrote this paper in 2011, I concluded that this casual observation may be more feasible now than six decades ago due the rise of so-called new media. Collaborative journalism is on the rise:

Reporting is becoming more participatory and collaborative. The ranks of news gatherers now include not only newsroom staffers, but freelancers, university faculty members, students, and citizens. Financial support for reporting now comes not only from advertisers and subscribers, but also from foundations, individual philanthropists, academic and government budgets, special interests, and voluntary contributions from readers and viewers. There is increased competition among the different kinds of news gatherers, but there also is more cooperation, a willingness to share resources and reporting with former competitors.

Maybe now the solution is the professionalize the blogosphere?

In any event, doesn’t this entire enterprise of collaborative journalism sound like exactly how this past year’s reporting on NSA surveillance has been carried out?  Glenn Greenwald is, in the best sense of the word, a blogger by tradition, and numerous organizations, from establishment media to ProPublica and independent researchers like Ashkan Soltani, have brought information to the public.  In the coming year, Greenwald has teamed with billionaire Pierre Omidyar to launch First Look Media.

I had largely forgotten about the paper, but considering its the new year, I thought it worth something to share publicly.  Please feel free to read and criticize — that’s what being a watchdog is all about!

Rural Minority Is a Vast Landed Majority

In an anecdote-filled piece on Republican obsolescence by Robert Draper in The New York Times Magazine, Draper discusses the results of a focus group of average Ohioans.  When asked to describe the Republican brand, the following terms were generated:

When Anderson then wrote “Republican,” the outburst was immediate and vehement: “Corporate greed.”“Old.”“Middle-aged white men.” “Rich.” “Religious.” “Conservative.” “Hypocritical.” “Military retirees.” “Narrow-minded.” “Rigid.” “Not progressive.” “Polarizing.” “Stuck in their ways.” “Farmers.”

A number of those terms fit easily together, and I was struck instantly by the last term: “Farmers.”  It’s no surprise that the Republican Party has an increasingly rural base.

Unfortunately for our ever-urbanizing country (and fortunate for our rural minority), the fruited plains and vast open “flyover country” that Republicans dominate affords them out-sized political power despite their dwindling numbers.  While Democratic House candidates received more than 1.4 million votes than their Republican counterparts, they still face a thirty-some seat disadvantage in the House.  Their Senate majority rests largely on Republican candidates that were . . . confused about rape. Combined with well-timed gerrymandering, the result is that Republicans have “drawn themselves into a durable House majority,” but one that is elected by “an alternate universe of voters that little resembles the growing diversity of the country.”

While the country has long trumpeted majority rule, Republican political power is the beneficiary of the powerful protections given to the minority in our Constitution.  Instead, what the Constitution rewards political power to a landed majority.  Since the Founding, agrarian America has been bolstered by structural guarantees such as the Electoral College and, yes, the long-stricken Three-Fifths Clause.

This made sense in Eighteenth Century when the American populace was widely dispersed throughout the former colonies.  In fact, in 1790, at the time of the first Census, nearly 95% of Americans lived in rural areas.  By 1900, this percentage had declined to 60%, but still, ensuring the political dominance of rural America still made sense.  Today, rural America accounts for only 16% of the total population.

Republicans have embraced this 16% of the population to the country’s detriment.  Certainly political polarization impacts the Democratic Party as well, but because Republicans can still have substantial national political power while representing a shrinking part of the country, the United States’ political development is stunted.  Obviously, many parties instead see this state of affairs as an appropriate check on fluctuating democratic impulses.  That notion may well be true in some circumstances, but because our politics has become perpetually locked into a two-party system, rural domination has unduly warped our political discourse.  We have a party in lockstep with “conservative” rural interests against a broad base of “Democrats.”

As the Republican base has shrunk, the Democrats have become a big tent party.  This creates its own set of problems: I was talking to a member of the Maryland state legislature, a state that’s utterly dominated by Democrats, and he bemoaned the single-party rule that’s spreading to more and more states.  ”We should have Democrats versus Greens, and Greens could well represent farmers,” he said.

Instead, farmers are trapped with Republicans, and Greens are trapped with Democrats, and America suffers as a result.  Our political discourse demands that we disconnect the landed majority from the trappings of political power.  Some of this made sense at our Founding.  It no longer does.

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