By Paul Rosenzweig, The George Washington University Law School
There are conflicting views on how helpful surveillance is to a nation and its people. On the one hand, transparency could help in maintaining order, while on the other, it could lead to the state taking complete control of the people or what some call being the Big Brother. So, what privacy rules does America have? And, how much does technology help?
British philosopher and social reformer Jeremy Bentham thought that the ideal world is one in which each ‘gesture, every turn of limb or feature, in those whose emotions have a visible impact on the general happiness, will be noticed’ and taken account of.
In this view, we can extrapolate that surveillance itself—although perhaps not solely by the state—has, in Bentham’s view, a positive effect on maintaining order.
The Panopticon Theory
Few people today would embrace as beneficial Bentham’s image of complete transparency. Rather, Bentham is remembered as having given voice to a horrifying dystopian vision.
The extreme of this view is best captured in the image of an institutional building—a jail—designed by Bentham and known as the Panopticon. The rooms consisted of a transparent inner wall that allowed any watcher at the center to see into the inmate’s jail cell. The idea was to allow a single watchman to monitor all of the inmates of the institution without himself being observed. As a result, the inmates would always behave themselves.
However, what Bentham saw as a utilitarian good, we see as the ultimate in Big Brother.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Fair Information Practice Principles
Our concepts of privacy today are largely embedded in a set of principles known as the Fair Information Practice Principles, sometimes known as the FIPPs, which are the keystone of the Privacy Act of 1974.
The principles state that a government should limit the collection of personal information to what is necessary, use it only for specific and limited purposes, be transparent and open with the public about how the information is collected and used, and allow the individual about whom the data is collected to see the data, and correct it if necessary.
Does New Technology Fit in the Old Rules?
New technologies, such as drones, biometrics, and big data collection and analysis just destroy these types of rules. A conscientious and fair application of such principles is, in many ways, fundamentally inconsistent with the way in which personal information is used in the context of counter-terrorism, or for that matter, in commercial data analysis.
Consider, as just one example of this, the purpose and use-specification principle, which states generally that data collected for one purpose should not be used for another. If universally applied, this principle would make it impossible for many sophisticated knowledge-discovery systems based on big data analysis to work well.
Thus, what is needed is a modern conception of privacy, one with enough flexibility to allow effective government action but with the surety necessary to protect against governmental abuse.
Learn more about metadata and its legality.
What Is Privacy?
What the term ‘privacy’ reflects is a desire for the independence of personal activity—a form of autonomy—and we protect that privacy in many ways. Sometimes, we do so through secrecy. An example of this is the voting booth, where who you are and what you do are actually, physically obscured behind a screen to preserve the unimpeded freedom of your democratic choice.
But, when we talk about privacy rights in connection with freedom of religion, or the right to marry whom we want, we protect our autonomy directly by allowing us to exercise our own individual choice of conduct. Indeed, the whole point of that kind of privacy is to allow people to act as they wish in public, which is a very different way of looking at privacy.
Privacy and Anonymity
Anonymity is another concept of privacy. It’s kind of middle ground where observation is permitted—that is, where we expose our actions in public, but where our identities and intentions are not ordinarily subject to close scrutiny.
In everyday life we leave behind an electronic data trail that is suffused with information of this middle sort: bank account transactions, phone records, airplane reservations, smart card travel logs, to name just a few. Likewise, in the physical realm of biometrics and drones, it often involves the collection of publicly exposed information in which we also have an anonymity-based privacy interest.
The Types of Anonymity
The type of anonymity that one has in respect of activities in the electronic realm or under the gaze of unseen drones is not different from the type of anonymity we have every day in our physical existence.
What we really must mean by anonymity is not a pure form of privacy, akin to secrecy. Rather, what we mean is that, even though one’s conduct is examined, routinely and regularly—both with and without our knowledge—nothing adverse should happen to us without good cause.
Learn more about how technology outruns the law.
Limiting Intrusions
So to actively protect privacy that otherwise is compromised by the new technology, we need to formulate rules that prescribe limits to the unwanted and undesirable intrusions. These rules are needed to protect our privacy and prevent governmental abuse.
The key to this conception is that privacy’s principal virtue is a limitation on consequence. In the context of governmental oversight, the questions to be asked of any new surveillance program are: What is the consequence of identification? What is the trigger for that consequence? And who decides when the trigger is met?
Common Questions about Privacy, Anonymity, and the Rules of Surveillance
According to this theory, there is an institutional building—a jail—known as the Panopticon. The rooms consist of a transparent inner wall. The idea is to allow a single watchman to monitor all of the inmates without himself being observed. As a result, the inmates always behave themselves.
The Fair Information Practice Principles state that a government should limit the collection of personal information to what is necessary, use it only for specific and limited purposes, be transparent and open with the public about how the information is collected and used, and allow the individual about whom the data is collected to see the data, and correct it if necessary.
Privacy can be of three forms: the independence of personal activity, to act as we wish in public, and anonymity.
