"Privacy" Isn't What's Really At Stake...,

NewYorker  |  The question about national security and personal convenience is always: At what price? What do we have to give up? On the criminal-justice side, law enforcement is in an arms race with lawbreakers. Timothy Carpenter was allegedly able to orchestrate an armed-robbery gang in two states because he had a cell phone; the law makes it difficult for police to learn how he used it. Thanks to lobbying by the National Rifle Association, federal law prohibits the National Tracing Center from using a searchable database to identify the owners of guns seized at crime scenes. Whose privacy is being protected there?

Most citizens feel glad for privacy protections like the one in Griswold, but are less invested in protections like the one in Katz. In “Habeas Data,” Farivar analyzes ten Fourth Amendment cases; all ten of the plaintiffs were criminals. We want their rights to be observed, but we also want them locked up.

On the commercial side, are the trade-offs equivalent? The market-theory expectation is that if there is demand for greater privacy then competition will arise to offer it. Services like Signal and WhatsApp already do this. Consumers will, of course, have to balance privacy with convenience. The question is: Can they really? The General Data Protection Regulation went into effect on May 25th, and privacy-advocacy groups in Europe are already filing lawsuits claiming that the policy updates circulated by companies like Facebook and Google are not in compliance. How can you ever be sure who is eating your cookies?

Possibly the discussion is using the wrong vocabulary. “Privacy” is an odd name for the good that is being threatened by commercial exploitation and state surveillance. Privacy implies “It’s nobody’s business,” and that is not really what Roe v. Wade is about, or what the E.U. regulations are about, or even what Katz and Carpenter are about. The real issue is the one that Pollak and Martin, in their suit against the District of Columbia in the Muzak case, said it was: liberty. This means the freedom to choose what to do with your body, or who can see your personal information, or who can monitor your movements and record your calls—who gets to surveil your life and on what grounds.

As we are learning, the danger of data collection by online companies is not that they will use it to try to sell you stuff. The danger is that that information can so easily fall into the hands of parties whose motives are much less benign. A government, for example. A typical reaction to worries about the police listening to your phone conversations is the one Gary Hart had when it was suggested that reporters might tail him to see if he was having affairs: “You’d be bored.” They were not, as it turned out. We all may underestimate our susceptibility to persecution. “We were just talking about hardwood floors!” we say. But authorities who feel emboldened by the promise of a Presidential pardon or by a Justice Department that looks the other way may feel less inhibited about invading the spaces of people who belong to groups that the government has singled out as unpatriotic or undesirable. And we now have a government that does that.