The chaotic politics of privacy
Almost nobody pays attention to the real issues in privacy and surveillance. That’s gotten only slightly better over the decade that I’ve written about the subject. But the problems with privacy/surveillance politics run yet deeper than that.
Worldwide
The politics of privacy and surveillance are confused, in many countries around the world. This is hardly surprising. After all:
- Privacy involves complex technological issues. Few governments understand those well.
- Privacy also involves complex business issues. Few governments understand those well either.
- Citizen understanding of these issues is no better.
Technical cluelessness isn’t the only problem. Privacy issues are commonly framed in terms of civil liberties, national security, law enforcement and/or general national sovereignty. And these categories are inherently confusing, in that:
- Opinions about them often cross standard partisan lines.
- Different countries take very different approaches, especially in the “civil liberties” area.
- These categories are rife with questionably-founded fears, such as supposed threats from terrorism, child pornographers, or “foreign interference”.
Data sovereignty regulations — which are quite a big part of privacy law — get their own extra bit of confusion, because of the various purposes they can serve. Chief among these are:
- Preventing foreign governments or businesses from impinging citizens’ privacy.
- Helping their own governments impinge on citizens’ privacy.
- Providing a pretext to favor local companies at the expense of foreign ones.
The United States
Specifically in the United States, I’d like to drill into two areas:
- An important bit of constitutional confusion.
- Just how bipartisan this all gets in our generally hyper-partisan times.
The constitutional confusion goes something like this:
- A new communication technology is invented, such as telephones or email.
- The courts rule that there is no Fourth Amendment expectation of privacy in using such optional services, because:
- Given how the technology works, the information is temporarily under a third party’s control.
- If you weren’t willing to give up your privacy, you wouldn’t have used the technology in the first place.
- Later the technology becomes so central to everyday life that courts start finding the previous reasoning to be inaccurate, and extend the Fourth’s protection of your “papers and effect” to the new communication medium.
- In the meantime, laws are passed regulating privacy for that particular medium.
For example:
- The Electronics Communications Privacy Act of 1986 (ECPA) — specifically in its section known as the Stored Communication Act (SCA) — gives authorities warrantless access to online information more than 180 days old.
- The Warshak decision of 2010 rendered the ECPA/SCA unconstitutional in the Sixth District.
- The Email Privacy Act was supposed to make Warshak the general law of the land.
Those links are all to Wikipedia. At the time of this writing, the ones on Warshak and the SCA go into considerable constitutional depth.
The Email Privacy Act is also the single best example of this post’s premises about the general chaos of privacy politics.
- It passed the House of Representatives unanimously in 2016 — 419-0 — which is an honor usually reserved for such noncontroversial subjects as renaming post offices.
- Even so, it was shot down in the Senate, under opposition from Senators of both parties,* never coming up for vote.
- It was passed by voice vote in the House again in 2017.
- It again didn’t come up for vote in the Senate.
Last week’s FISA reauthorization is another example; it wouldn’t have passed without senior-level Democratic support in the House and Senate alike.
*A chief opponent among the Democrats was Diane Feinstein, who despite representing California is commonly hostile to technological good sense. She voted for FISA reauthorization as well.
Like many folks, I’ve been distracted by all the other political calamities that have befallen since November, 2016. But the time to refocus on privacy/surveillance is drawing near.
Related links
- I wrote about similar subjects in May, 2016, and offered many links then.
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