What Will We Protect?
In thinking about how the law has evolved and should evolve, it’s fundamental to clarify what values we want to preserve and rebalance. In the world of Data 1.0 the law primarily protected a privacy interest in physical spaces through property rights. At the time of the signing of the U.S. Constitution, the rule was that judicial permission was needed to search and seize in private physical space. When Data 2.0 arrived, technology like the telegraph and telephone shrank physical distances between spaces. The law adapted to protect a privacy interest in personal conversations, requiring a warrant to intercept conversations, even over publicly located telephone wires.
Today, Data 3.0 technology is again changing what is at stake. The sheer amount of personal data recorded, stored, and analyzed is staggering. New technologies have further blurred the line between what is public and what is private, and information once collected does not readily disappear. While we will always be concerned about our privacy in physical spaces and communications, the advent of mass collection, storage, analysis, and distribution of personal data means that we must also consider how we control data generated by or about us, even if it was not collected in what we might generally consider personal physical space.
What should we protect? Privacy is too narrow a value: it covers concealing only behavior that is sheltered from others in a private space or on privately designated communications facilities. In a world irreversibly governed by ubiquitous Data 3.0, hiding or obscuring behavior is impossible.
I argue that what we can and should care about is the broader value of autonomy, which is at the very core of freedom. Autonomy is the ability to make our own personal choices, restricted only by transparent laws and also influenced by social norms affecting our reputations within our communities. Autonomy is fundamental to human nature and respected in a modern, democratic society. Under the democratic ideal and the rule of law, citizens are bound only by law and regulations openly and democratically adopted and objectively enforced. Less coercively, our conduct is affected by norms honored within our own civil society institutions and communities.
These principles—the essence of the rule of law—are eroded when the availability of ubiquitous personal data means that any data holder (official or private) can use psychological manipulation, shaming, and financial incentives and penalties to in influence and possibly coerce almost every facet of human behavior: what we watch, see, and eat; how we behave; and to whom we relate. When government has total access to your personal information, the practical reach of its authority is almost limitless, transgressing the formal constitutional or statutory limits on of official power. Just as alarming, unfettered access to that data can allow private enterprises or groups to pressure, manipulate, or incentivize personal behavior without any public accountability. As is illustrated by the increasing phenomenon of online bullying, communities with which we have no connection can use data about us to retaliate or annoy us if they don’t like our political or even aesthetic opinions.
To preserve space for lawful personal choice means that we must have significant control over data about ourselves— our likenesses, the things we do, our thought processes and decisions. A world in which every step we take factors into auto insurance or marketing, or allows the government to predict and regulate our behavior, would be a substantial constraint on our freedom of belief, our relationships, and our actions. Essentially, it means we would become programmed. We are moving in that direction.
We have always been worried that Big Brother might force his way into our home and compel obedience under his watchful eye. But Big Brother need not beat down the door. We are currently rolling out the red carpet to welcome him. And Big Brother is not just the government but also foreign nations, organized criminals, and even private companies. Indeed, as we incessantly record one another, we become Little Brothers and Sisters.
At a fundamental level, people should be aware of what is being done with their data, and they should make a choice about how to deal with it. Put another way, protection of our way of life must move beyond a right to conceal our data and into a broader right to control our data, even when hiding it or privately maintaining it becomes technologically impossible. Unless we take stock of our new digital environment and its consequences, we may lose not just privacy but also freedom and autonomy in the name of convenience.