The unwanted gaze
"In this book, Jeffrey Rosen explores the legal, technological, and cultural changes that have undermined our ability to control how much personal information about ourselves is communicated to others, and he proposes ways of reconstructing some of the zones of privacy that law and technology have been allowed to invade. In a world in which everything that Americans read, write, and buy can be recorded and monitored in cyberspace, there is a growing danger that intimate personal information originally disclosed only to our friends and colleagues may be exposed to - and misinterpreted by - a less understanding audience of strangers.". "Privacy is important, Rosen argues, because it protects us from being judged out of context in a world of short attention spans, a world in which isolated bits of intimate information can be confused with genuine knowledge. Rosen also examines the expansion of sexual-harassment law that has given employers an incentive to monitor our e-mail, Internet browsing habits, and office romances. And he suggests that some forms of offensive speech in the workplace are better conceived of as invasions of privacy than as examples of sex discrimination. Combining discussions of current events with innovative legal and cultural analysis, The Unwanted Gaze offers a powerful challenge to Americans to be proactive in the face of new threats to privacy in the twenty-first century."--BOOK JACKET.
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- Corporate workplace spying on employee communication became prevalent in the 90s to prevent discrimination lawsuits. This predates what we think of as our contemporary "surveilance capitalism". There were a series of court decisions that enshrined this practice in law and since then the limits of proscribed speech have expanded.
"The Unwanted Gaze" is a good read on this subject. <https://www.penguinrandomhouse.com/books/157389/the-unwanted...>
- Apropos of this link... a couple decades ago I picked up a copy of Jeffrey Rosen's "The Unwanted Gaze."
I recommend it to mostly everyone who has time to digest it, especially of you're one of the "I have nothing to hide" people.
- This strikes me as a well-meaning project which has utterly misconceived both the source of the problem, and its solution.
Apologies for length. I'm thinking that privacy solutions need their own version of the "why your anti-spam idea won't work" checklist, which would be shorter...
<https://trog.qgl.org/20081217/the-why-your-anti-spam-idea-wo...>
I've written a bit on the hierarchy of failure, or reversing the sign, the requisite success chain, in problem resolution:
<https://old.reddit.com/r/dredmorbius/comments/2fsr0g/hierarc...>
Schluss fails at stages 2 & 3 (diagnosis and etiology), fails to clearly define 4 (objective), and embarks on "garbage can theory" solutionism in 5 (redress), a/k/a "when you have a hammer, every problem is a nail". Specifically Schluss is applying techno-solutionism to a problem which, whilst it has a technical component is fundamentally grounded in commerce, law, and risk. Given these foundational failings, I'm confident in predicting that Schluss will fail in its (poorly-formed and poorly-communicated) objectives entirely. I say this with absolutely no joy.
Furthermore, Schluss's proposed solution fails because data simply don't work that way. The way information works is through records and transmission, where a record preserves a transmission and a transmission reads from and/or generates a record. The notion that a single canonical data store assures that by technical means alone further stores and transmissions don't happen evidences a grievous failure to grasp the problem.
I've compiled a set of early concerns (largely pre-1980) expressed over computerised data, which are recommended reading. In particular I point to the works of Paul Baran written whilst at RAND in the 1960s. For those unaware, Baran is one of the co-inventors of packet-switched data routing, an essential foundation of today's Internet.
<https://www.rand.org/pubs/authors/b/baran_paul.html>
<https://diaspora.glasswings.com/posts/bf4f5f10f6120138799c00...>
Today's extraordinarily invasive data-surveillance regime, in both its surveillance state and surveillance capitalism instantiations, arises from a set of factors:
- Data storage is cheap and immense. Total data storage has been doubling every few years (2--4 by a quick search), and has been for decades, dating to at least the 1960s.[1] Significant thresholds were crossed in the early 2000s when disk ("spinning rust") storage crossed the 1 GB threshold, with the emergence of SSD storage after about 2010, and with the increasing prevalence of multi-GB RAM storage, with 24 TiB presently among the highest-memory tiers available on Amazon AWS. Your Humble Correspondent recalls working on a shared-compute resource in the early 1990s with a score and a half other analysts which had an aggregate storage of about 2 GB, for a mid-sized data-heavy corporation.
- Legal theories, most especially "Third Party Doctrine" in the US, which holds that "people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have 'no reasonable expectation of privacy' in that information." <https://en.wikipedia.org/wiki/Third-party_doctrine>[2]. Given the practical impossibility of conducting a normal life without use of such services, the doctrine effectively establishes a national surveillance apparatus and abrogates Constitutional guarantees of privacy.[3]
- A compelling commercial case. There are critics of surveillance capitalism's actual effectiveness, notably Cory Doctorow.[4] His case boils down to 1) influences are at best marginal and 2) it's a grift, mostly against advertisers. To which I respond that margins matter and advertising is an $800 billion global industry, costing roughly $100 per head, most of which is actually allocated to the 1 billion richest people on Earth, so if you're reading this figure your "free Internet" (and television, radio, and legacy print media) are costing you $800 per year, for each member of your household. Free ain't cheap. And it's remarkably corrosive in terms of privacy, manipulation, dark UI/UX patterns, and shitty, shitty content.
- Legally-permitted data exchange. Data-based credit risk assessment dates to the dawn of modern banking (a fuzzy line, as are most, but let's posit 12th century Italy), with currently extant firms such as Dun & Bradstreet tracing their origins to the early 19th century.[5] Practices such as ethnic, religious, racial, and "old-boy" network profiling led to outcomes such as redlining (mentioned by Baran in his writings, again, highly recommended). Modern data-based predictions utilising machine learning result in what Cathy O'Neil has colourfully termed "weapons of math destruction" in her book of the same name.[6]
- Effectively no liability for misuse, leakage, or exfiltration of data. I've long since stopped tracking major commercial data breaches. I strongly suspect Wikipedia's list is grossly incomplete.[7] The modern corporation is a liability-externalising engine, and there are few liabilities more effectively externalised than data loss, and its various fellow travelers of fraud, "identity theft" (that is: fraud), phishing (that is, fraud), impersonation (that is: fraud), social engineering (that is: fraud), and ... well, more fraud. Defences and consequences are pushed to the individual, precisely the level at which they are both most damaging and least-effectively addressed.
IF we are going to tackle this problem, THEN these underlying foundations must be attacked.
Data exchange must be greatly limited. Whilst data are cheap individually, large scale data aggregation does remain expensive, and if not justifiable based on commercial value, it will cease.
Liability for unauthorised disclosure and abuse must be entirely revised. "Data are liability" has been my own watchword for much of the past decade. Legally it has far less validity than I'd like.
Practices based on data aggregation must be both closely regulated and highly taxed. The taxes serve both to reduce the profitability of such businesses, and to provide an additional legal tool for prosecution against offenders. The old saw about Al Capone stands.[8]
Individuals must be granted strong legal protections to correct, or remove, data absent a compelling public interest in that data being available. I'm well aware that this sets up a conflict between privacy and free speech rights. Those are inherent and unavoidable, the question is where one finds a balance.[9]
I also hold that
privacy is an emergent response to changes in informational landscapes and increased capacities in capture, storage, transmission, and processing. As such, evolution of privacy follows rather than leads such technologies, it is inherently* reactive, no preemptive. I'm not aware of an explicit similar statement from others though Jeffrey Rosen's The Unwanted Gaze, much of the work of Daniel J. Solove and Helen Nissenbaum have struck me as above par. Harvard historian Jill Lepore has an excellent biography: <https://scholar.harvard.edu/files/jlepore/files/lepore_secre...> (PDF).Above all: Privacy is fundamentally the ability to define and enforce limits on information disclosure. Approaches to improving it must account for both elements. Schluss's proposal by contrast fails both.
- There are a number of ... not-very-good books on the subject (I picked up Carolyn Kennedy's 1990s effort, it's ... poor).
A challenge is that privacy itself is an emergent concept (this is my view, not one widely shared), which is a response to ever-more invasive or capable technologies. As such, much of the relevant caselaw and legal thinking is fairly new, and reflects advances in publishing (Brandeis and Warren), recording, transmission, and detection.
There are some historical antecedants.
Some of the more interesting non-legal-scholar work has come from Jill Lepore in recent years. I'd suggest her work as at the least a good entry point. She's a historian, and should be copiously documenting sources which may be of interest. Unseen: A History of Privacy (2013) https://scholar.harvard.edu/jlepore/presentations/unseen-his...
The Unwanted Gaze by Jeffrey Rosen (2001) addresses concerns as the Internet age was beginning to mature. https://www.worldcat.org/title/unwanted-gaze-the-destruction...
The EFF and ACLU have extensive resources on privacy, though not necessarily of specific legal focus:
https://www.eff.org/issues/privacy
https://www.aclu.org/issues/privacy-technology
For current legal opinion, Solve and Schwartz might be a standard (I honestly don't know, though it gets prominant mention):
https://www.worldcat.org/title/privacy-law-fundamentals/oclc...
- "In this much-discussed subject, I'm surprised that two huge points never arise"
Actually those points come up in pretty much every book about privacy. Your first point is heavily discussed in Jeffrey Rosen's book The Unwanted Gaze, and your second point is sort of the point of Bruce Schneier's book Beyond Fear. See also any of Daniel Solove's books.
- "To what extent may a good and proper government of the People keep secrets from its People"
The government may keep secrets to the extent that doing so does not erode its net good and properness. There can definitely be such a thing as too much transparency, which Jeffrey Rosen makes a good argument against in his book The Unwanted Gaze. But with Obama personally going out of his way to block scientific research from taking place I don't think we're anywhere near that point yet.[1]
[1] C.f. the controversy around Obama nominating Michele Leonhart for DEA administrator even after she defied a judicial recommendation to let UMass Amherst grow marijuana for MAPS research.
