The Captain's Table: Privacy

Boot Key Harbor, Marathon, Florida

Since the 1980s, privacy has been my number one political issue. I join activists groups, and I read and opine on several online privacy forums. .I refuse to tell Facebook my real name.  I refuse to fill out questionnaires in the doctor's office truthfully.  If I could use a false name at the doctor's, I would.  In this post, I’ll skip outrageous examples of privacy invasion; you all have heard of some.

The problem with privacy in the USA is that it is based on a flawed premise – “reasonable expectation of privacy” first articulated by Samuel D. Warren & Louis D. Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193, 198 n.2 (1890). I say it is flawed, because it is a one-way ratchet. Every time privacy must be “balanced” against other interests, privacy rights are permanently reduced. Every time the news carries a story of widespread privacy violations (even if illegal), that particular expectation becomes unreasonable in the future. Thus illegal privacy invasions become automatically legalized as soon as they are revealed.  Think of NSA gathering all of our phone metadata.  Now, we all know about it and we can't expect them not to. As mighty mountains become mere piles of sand, so goes our reasonable expectation of privacy.

For 30 years, I dreamed of forming constitutional amendment that would protect privacy as the first amendment protects speech. After 30 years of agonized attempts I realized that I cannot, and never will, be able to define what privacy means in a sentence or two.

Another enormous problem is technology. When the day comes soon that a large fraction of the public takes to wearing body cameras all the time and streaming the scenes to the Internet, it will no longer matter how we restrict government and industry. Because of Moores' Law, the massive surveillance capabilities of NSA's technical infrastucture that cost $10 billion today, will cost only $94 in only 40 years.  Similarly, a body camera that costs $50 and weighs 98 grams today.  In 2045 we will be able to buy 2 million such cameras per dollar and they will weigh less than one billionth of a kg, and be able to float in the air like grains of dust.   Every private citizen will be able to afford his own NSA. Therefore, political activism, laws, rules and regulations will ultimately be futile.

No, I have come to believe that privacy is but a subset of a more basic problem. We live in The Information Age. The symbolic gold of the future is information, not physical things. We have countless laws and customs regarding personal property that date back to English Common Law. The only laws we have for information are patent, copyright, trademark, and classified secrets. We will continue to flounder until we learn how to define information (such as your personal data) as personal property, protected by property rights. That is exceedingly difficult because information is not like physical things. If I sell you my car, then I no longer have that car. If I sell you my information, then I still have the information. If the police or a court demand information from citizens, is that seizure of personal property. We are very far away from coming to grip with such issues. Much more important than privacy, the entire economy will rest on shaky ground until these issues are addressed.

So, what is the most beneficial thing the public can do in the meantime? I believe that we must fight for the right to use modern technology to level the playing field. Instead of trying to restrict law enforcement, the intelligence community, and corporations from gathering and using our data, we should fight for the the right of overseers to gather and use information about authorities. The Senate intelligence committee for example, would not need to ask CIA what they are doing. They would have tapped the computers, and bugged the offices of every CIA employee. In turn, the public needs to be able to bug the caucus rooms of Congress, the Oval Office, and the offices of the local DA. In short, lack of privacy must be a two-edged sword.