Last Friday’s White House traveling summit on cybersecurity at Stanford University featured sophisticated discourse about Cyber Threat Intelligence Integration Centers and ISAOs—information sharing and analysis organizations. Underlying this Geek Speak, the attendees, led by President Barack Obama, faced some fundamental dilemmas rooted in the Bible, the “don’t tread on me” American Revolution, and the Constitution, complicated by our Information Age miracles. They debated: “what is privacy,” and “how to maximize both personal freedom and public safety?”
But rather than wallowing in contradictions or engaging in absolutes, we as Americans need to think of how we balance fighting terrorism effectively while maintaining privacy as a key to our freedom.
The demand for privacy is primal. The Bible curses Ham for staring at Noah’s nakedness, while blessing Shem and Japheth for respecting their exposed father’s privacy. King David’s great sin begins by spying Bathsheba bathing, and ogling her.
Although the Constitution offers no explicit privacy right, the Bill of Rights guarantees free expression, prevents unreasonable searches, and protects against self-incrimination, thus validating individual citizens’ personal integrity. In his Olmstead v. US (1928) dissent objecting to government wiretapping, Justice Louis Brandeis celebrated the “right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Brandeis realized that, in the 20th century, “subtler and more far-reaching means of invading privacy have become available to the Government.”
Only 37 years later did a Supreme Court majority validate this new right to privacy, in Griswold v. Connecticut (1965). Invalidating a law preventing married couples from using birth control, the Court found in the Constitution’s penumbra, its moonlike emanation, guarantees a “zone of privacy.” This novel privacy penumbra shaped the century’s biggest privacy case, Roe v. Wade (1973), legalizing abortion.
Despite the Court’s recognition, this fundamental civil liberty was increasingly assailed. The Watergate scandal demonstrated the many ways modern technology threatened privacy. This bugging, burglary, and snooping scandal unraveled when an aide revealed Richard Nixon’s taping of his own private conversations.
In May 1974, the escalating Watergate fight alarmed Democrats and Republicans alike. Republican Senator Edward Brooke of Massachusetts feared the “powerful forces working against the privacy of the individual American citizen,” threatening “our freedom, indeed our democracy.” “Watergate-type invasions of privacy” were outlawed, but the future would bring more ominous yet ambiguous threats. “For computer-caused invasions of privacy there are no laws,” Brooke warned. “Here we must enact legislation to safeguard the constitutional rights of our citizens from cybernetic invasions.”
Senator Sam Ervin, the North Carolina Democrat who stewarded the Senate Watergate hearings, in the 1974 Privacy Act, demanded a Federal Privacy Board, limits on government use of personal information, and procedures helping individuals control what government knew about them. Ervin cautioned, “The appetite of government and private organizations for information about individuals threatens to usurp the right to privacy…. Each time we give up a bit of information about ourselves to the Government, we give up some of our freedoms…. When the Government knows all of our secrets, we stand naked before official power.”
Traumatized by Nazis and Soviets, Ervin and Brooke feared Big Brother, the government turning totalitarian. But they could not imagine today’s hyper-connectedness, causing more widespread, democratic problems with multiple threats of indecent exposure en masse. Today, the amount of information we surrender unknowingly to so many corporations and government bodies makes us incredibly vulnerable financially and psychically.
But government isn’t the biggest problem anymore. We are.
In our new pathologically-exhibitionist culture, individuals promiscuously violate their own privacy, sharing secrets with virtual “friends” while publicly posting shameful moments. Most of us act as if nothing is real until it’s been Facebooked, Tweeted, and WhatsApped. But this leads to a paradox: Most individuals today are as zealous about guarding their own privacy, when they wish, as they are generous in tolerating government or corporate encroachments of others’ privacy for public safety or mass marketing. As Barack Obama admitted at Stanford: “The folks in favor of air-tight encryption also want to be protected from terrorists.”
Many Americans—and reporters—who wanted better government spying after 9/11, nevertheless cheer today’s Secrecy Robin Hood, Edward Snowden, who stole secrets from the government purporting to protect the public’s secrets. Privacy advocates like Glenn Greenwald argue eloquently in the tradition of Brandeis, Brooke, and Ervin, that “Only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie.”
However, these activists are too suspicious of government and too absolute in demanding privacy from our own intelligence agencies, ignoring how much information we surrender voluntarily. Much government invasiveness at least intends to protect us; corporations just seek profits.
When North Koreans hack Sony or thieves hack ATMs en masse, we demand more government mastery of the Internet, but not so much that the government can master us.
We want government to mount a bulletproof defense without acknowledging the inevitable offensive capabilities that follow. President Obama described cybersecurity as being “more like basketball than football, in the sense that there’s no clear line between offense and defense. Things are going back and forth all the time.”
Just as the Supreme Court has different balancing tests depending on the different competing values, we need different weights for different threats to privacy from different sources. In an age of terrorism, when it comes to government security agencies, a valid rationale should be sufficient to justify scrutiny. Considering how much information the government and corporations have already amassed, a little more won’t hurt, while effective surveillance can save lives—as we learned the hard way on September 11.
On the other hand, corporations should have to make a compelling case for violating privacy and make more detailed efforts to protect individuals’ personal information. Many companies now amass personal data simply for targeted marking. That feels Big Brotherish, and unjustifiable.
Unfortunately, amid all this sophisticated governmental and corporate spy vs. spy hacking, most citizens have become mere bystanders. This stuff sounds so complicated, most of us go limp. We accept whatever is thrown at us: more complicated passwords, more integrated platforms, more revealing cookies. The 20th century reduced most citizens to consumers, choosing one option from a range of possibilities, no longer creating that which we used. The 21st century further diminishes us from consumers to mouse potatoes, clicking to accept whatever menu of options is offered.
To Senators Ervin and Brooke, only engaged citizens, controlling their own information flow, could protect privacy. Ervin noted: “In gathering information, the individual must be the source of that information to the greatest extent possible.” But at Obama’s summit, the “shared mission” involved “the private sector” and the “government.” Joe (for Joseph or Josephine) Selfie, once known as Joe Sixpack, was sidelined.
So perhaps we should demand more of ourselves. Especially in the case of the Sony hack, all of us—including every newspaper and website—should have refused to collaborate with the hackers by reporting the exposed gossip. Unfortunately, too many of us were too titillated by the salaries disclosed, the careers derailed, to act as vigilant, “don’t tread on me” citizens.
Sam Ervin taught that the right to privacy “assure[s] that the minds and hearts of Americans remain free.” Last year alone, 1541 hacking incidents stole over one billion records. The great risk to modern privacy remains the Hit and Run Hacker not Big Brother. The great risk to the public safety remains the freely-surfing terrorist. And the great risk to democracy remains the broader corruption of complacency, punctuated by outrage at those who are trying to protect us despite so much unthinking collaboration with those who intend to profit from us or actually hurt us.