Privacy-- it's a human value.
And there's so many different parties
who could become involved.
The companies, the government, individuals.
We've seen with the recent revelations of the National
Security Agency that people take privacy seriously.
And that's no longer paranoid fear,
it's a very realistic concern.
We need space mentally to play and experiment
without the threat of judgment in order
to grow into people who are internally free.
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Before the Civil War, there was this gathering
of concern about intrusions.
Not so much about the government,
but by the church, which was a larger intrusive force.
And also, printing presses that allowed
for mass production of a means of reporting on other people's
lives.
There was great concern about the US Mail, too.
There was Ben Franklin, who was the first Postmaster
General, who said that if the government's going
to run this system, there'll have
to be some means by statute to keep it private.
And then with technology around the 1880s, three things
that were really shocking to people.
A means to take your picture, which had never
been known before, and very quickly after that, a means
to take your picture without you knowing it,
with a tiny little box camera.
Secondly, the telephone, a means for your voice
to be transmitted beyond the four walls of where you were.
And thirdly, a means for one large company, namely
Western Union, to collect all sorts
of intimate personal information about people,
and no real law that gave you a right to see it or to get it
deleted later on.
So those three technological changes
were shocking to the American culture.
And two lawyers from Boston said, wait a minute,
there should be some measure in American law
that awards people damages if somebody
takes their information and makes a buck off it.
And that was the first kernels of a right
to privacy in commercial life in the United States.
Government intrusion was not a factor,
I would say, until the turn of the 20th century.
I think it came about with the invention the telephone.
And before long, government investigators
wanted the means to capture, perhaps
after the fact, what had been said on the telephone,
commonly called wiretapping during that period.
And then of course, in the second decade
of the 20th century came the FBI and its mania
for wanting to collect all sorts of information,
for the first time keeping databases on people.
But it was not until really the development
of new programs like Social Security, public assistance,
educational loans and grants, that the government
became a large collector of information.
And coincidentally, computers made
it possible to collect that information.
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Privacy is about the appropriate flow
of information.
And the way I've understood a violation of privacy
is information that flows inappropriately
that violates certain values we may have.
And what's happening is that new technology
can enable different flows, and present us
with different problems, ones we've never confronted before.
And there are people in my field who
might look at a Facebook or a Google and say,
you've become like a utility company.
The public utilities are highly regulated,
because how many of us could live without electricity,
without running water?
And so participating in social media, some might argue,
is not an option anymore.
For example, you apply for a job and, as many employers do,
they go and check you out on Facebook.
But let's say you don't have a Facebook page.
Then they may say, why don't you have a Facebook page?
That's a bit unusual.
So yes, it's true that these companies come in
and they offer certain services and they say,
these are the terms of the services.
But ultimately, some might argue you don't have a choice.
I think that there are many businesses who really
try to do the right thing, but their backs
are up against the wall.
And if they don't accept some of the activities of the ad
networks that can monitor across sites
and do the analytics and the profiling,
their businesses can be threatened significantly.
So we're saying it's great for you to be profitable,
and yes we understand you're providing great service,
but that doesn't give you a free pass.
Right now, we really are in dire need of meaningful rules
to level the playing fields so that the values to which we
subscribe as societies, as cultures, as communities,
can continue to be maintained.
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It is a combination of law and technology
that decides how surveillable we are.
But technology changes a lot faster than major legislation
can get passed, or than anything can get to the courts.
It was not until 2010 that a court finally
ruled that the Fourth Amendment protects email.
And that's one court in one circuit.
Federal law still says your email
can be read in a lot of situations
without a search warrant.
The basic statute governing federal surveillance
is the Electronic Communications Privacy Act.
That's 1986, tweaked in the early '90s,
but it's still the sort of framework
for police and government surveillance of people's
electronic communications.
It's a law that was written before most people had
heard of the internet or knew it existed.
So it may be that by the time that courts get around
to considering the appropriateness
of some new method of technological surveillance,
the technology has moved down.
We've decided that it needs to be
easy to have a secure communication that involves
a credit card transaction.
We haven't decided it's as important for it
to be easy, by default, to send an email that's encrypted,
or have an IM chat that's encrypted.
So a lot of the defaults have to do with the technology.
And now we're starting to see this growing body of services
that are, I think, pitching to people
who are not that comfortable with collection
of data about you.
Things like SpiderOak, which is a kind of Dropbox alternative.
Everything's sort of encrypted.
Browsers that are set by default to not accept
third-party cookies or to tell sites not to track you.
There's also a push to lock in some of those defaults legally.
But the Department of Justice, the FBI,
have gotten accustomed to being able to listen to phone calls
and read emails, and is pushing for legislation to say
companies basically cannot offer you more secure communications,
cannot offer you a service where the company itself doesn't have
the keys to unlock the message you're sending,
or the conversation you're having.
So in a lot of ways, I think the future of our privacy
will depend on whether the technology
to allow for greater privacy is deployed
in a kind of easy-to-use for the ordinary person way
before the government is able to lock that down
and legally forbid it.
For me, the greatest horror is that we've
become what was called a nation of sheep,
that we are just tame.
We alter our conduct.
And that is going to be the end result of the disclosures
we've had about telephone information being
used on a massive scale by NSA.
And that's where we are now.
The technology presents new problems,
but our cultural values about privacy remain important.
The leaks by Ed Snowden highlighting the extent
of NSA surveillance, I think people suddenly
had a much sharper sense of how intrusive that can really be.
So the question is whether there's
a transparency in the process, whether we can break out
of the bubble if we want to.