Computers, Privacy & the Constitution

The Truth is Not Enough

By MahaAtal - 18 May 2009

In our last class on Part Four, we determined that until we can build a legal infrastructure for privacy, we should take it into our own hands to protect our data by implementing technologies that take us off the radar. Yet although these technologies are available and often free, consumers aren’t biting.

One explanation is that outside the small subset of the population who enroll in a course like ours, privacy just isn’t a concern. But this doesn’t account for the outpouring of public outrage when a new privacy violation—wireless wiretapping or social media data-tracking—first comes to light. Instead, what seems to be happening is that governments and companies are able to quickly assuage that outrage without correcting the core violation by appeals to transparency.

An Inherent Trade-Off?

Asked about Google’s reliance on user data, Vice-President for User Experience Marissa Mayer recently told Charlie Rose, “In all cases it’s a tradeoff, right, where you will give you some of your privacy in order to gain some functionality… so the user can decide. And you have to be very transparent about what information you have about that user and how it’s being used.”

Such arguments traffic in two fallacies: first, that it’s impossible to have functionality without giving up privacy (VOIP and Tor disprove this) and secondly, that being transparent about data practices somehow eliminates violations. It is because the public buys into the second fallacy that they are willing to take the first fallacy on faith without exploring the functionality of privacy-respecting alternatives.

Indeed, privacy advocates are often the ones singing transparency’s praises. Karen Oqvist, a scholar at the British Computer Society argues as much in her recent book Virtual Shadows: “In the future we will be looking at transparency. It will be ‘you show me what you have and I’ll show you what I have’, that kind of thing.” It’s the case made perhaps most famously in David Brin’s Transparent Society. So long as you can watch those who are watching you, all is well.

Beyond Privacy

The meme extends far beyond digital data-mining and privacy concerns. Increasingly, transparency is being touted as a panacea for all forms of malfeasance. President Obama made it a campaign buzzword, echoing scholars who say transparency begets consensus governing and even “self-actualization.” Once elected, he appealed to transparency to justify releasing the Bush-era torture memos without plans to investigate the practices they sanctioned. Financial experts often respond to fraud—like that we’ve just experienced in the housing markets—by citing a lack of disclosure.

If only we’d known about this, they say, it would never have happened; now that we do know about it, it won’t happen again. In other words, inherent in the valorization of transparency as a solution is the assumption that the public, once informed about a problem, is immediately capable of eliminating it. That’s the assumption behind a recent Pew Internet Project survey: a plurality of respondents agreed that “transparency heightens individual integrity and forgiveness…As people’s lives have become more transparent, they have become more responsible for their own actions.”

But reality doesn’t work that way because there is an inherent power imbalance between states and their citizens, corporations and their investors or Google and its users. The incremental power governments and companies derive from information dwarfs the power we derive from knowing how they use it. Moreover, what power we do have—to decide if they should have our money or our votes—only has value if we can leverage it to make governments and companies carry out the work of changing their practices.

Seeing the Forest for the Trees

Transparency and openness are important prerequisites for that process, but they are not enough. And on the American political left at least, we have begun to focus on transparency as an end in itself; it is what happens when arguments for “liberal-tarianism” start to gain precedence over liberal institutionalism. The latter has its many flaws, but its chief strength is the emphasis on both the power and responsibility of institutions, as well on the ability of institutions to overcome the collective action hurdle. It is a framework that, if popularized and extended to domestic policy, would yield a public more amenable to the notion of privacy-checks on companies and the state.

It is a difficult notion to swallow, perhaps, given that many privacy advocates are also staunch supporters of other “openness” goals like free software. To his credit, Eben acknowledged this tension in his opening lecture for the course, when he noted that it was the spread of technology, lauded by free software activists that facilitated the current data-verse. But to preserve the freedom of those technologies and the people who use them, it may be necessary to abandon or rework some of the rhetoric and ideals around which they were built.

* Set ALLOWTOPICVIEW = TWikiAdminGroup, MahaAtal

Maha, I dropped in a comment box (hope that's ok).

I liked your direction for this paper a lot, but I wonder if you could have made the point more succinctly by simply addressing the overarching and blind valuation of "efficiency" over all other virtues when it comes to transparency. If you look at the various calls for electronic medical records, efficiency and transparency are implicitly linked in the public's mind and in legislative action. Of course, it makes perfect sense that transparency would allow a business or the state to more efficiently scrutinize one's identity, but there is a cognitive gap between how well they should be able to perform that scrutiny and the reasons one would want to allow that scrutiny. I think your best point is that efficiency and transparency have become ends in and of themselves. This is an assumption that will be difficult to check in the face of the high public confidence in the free market, so maybe the recent economic crisis provides a good opportunity to point out that efficiency is not always a virtue.

-- RickSchwartz - 19 May 2009



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r3 - 05 Jan 2010 - 22:32:08 - IanSullivan
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