Mar 312013
 March 31, 2013  Posted by  Featured News, Surveillance

The Dangers of Surveillance
Neil M. Richards
Washington University in Saint Louis – School of Law
March 25, 2013
Harvard Law Review, 2013


From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our law and literature are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices, however, have made this problem more urgent. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no tangible harms, as the Supreme Court did recently in the case of Clapper v. Amnesty International. We need a better account of the dangers of surveillance.

This article offers such an account. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I explain what those harms are and why they matter. At the level of theory, I explain when surveillance is particularly dangerous, and when it is not. Surveillance is harmful because it can chill the exercise of our civil liberties, especially our intellectual privacy. It is also gives the watcher power over the watched, creating the the risk of a variety of other harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.

At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public-private divide. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate, and prohibit the creation of any domestic surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine.

You can download the full paper from SSRN.

Mar 312013
 March 31, 2013  Posted by  Misc

Babak Siavoshy writes:

The most vexing failure of privacy scholarship, in my opinion, is that “privacy advocates” have failed to articulate in simple terms (to the public or any other audience) the value of privacy and the harm from undermining it.

I’m not suggesting I can solve this problem, but I have some thoughts about its sources.  I think there are several reasons privacy harms and benefits are difficult to articulate, including the following:

(1) in addition to being an individual right, privacy is (in the most important ways) a collective or system-based right, and the harm from violating privacy rights and the benefits from protecting them are only apparent in the aggregate.  That makes these harms and benefits more difficult to articulate and conceive in simple terms.  In this sense, privacy is like voting — it may be a relatively small societal harm to prevent one person from voting, but restricting the right to vote will, in the aggregate, fundamentally harm the system we live in by undermining values like democratic accountability.

Read more on a law and tech blog.

Mar 302013
 March 30, 2013  Posted by  Laws, Non-U.S., U.S.

Natasha Singer discusses a recent blog post by Peter Fleischer, mentioned previously on this blog, We Need a Better, Simpler Narrative of US Privacy Laws:

If the American side now appears to be losing the public relations battle, as Mr. Fleischer suggested, it may be because Europe has forged ahead with its project to modernize data protection. When officials of the United States and the European Union start work on a free trade agreement in the coming months, the trans-Atlantic privacy regulation divide is likely to be one of the sticking points, analysts say.

“We really are an outlier,” says Christopher Calabrese, legislative counsel for privacy-related issues at the American Civil Liberties Union in Washington.

For the moment, officials on either side of the Atlantic seem to be operating at different speeds.

Read more on The New York Times.

Mar 302013
 March 30, 2013  Posted by  Featured News, Misc, Online

Somini Sengupta has a great piece on Alessandro Acquisti’s research on the behavioral economics of privacy in the New York Times.  If you’re not familiar with Alessandro’s research, this is a great opportunity to get an overview of his major findings and its significance as we consider policy and regulations.