18 September 2012


On reading 'The Privacy Merchants: What is to Be Done?' by communitarian Amitai Etzioni in 14(4) Journal of Constitutional Law (2012) 929-951 I'm reminded of Mr Jourdain, who discovered - whodathunkit - that he had been speaking prose all his life.

Etzioni has discovered that entities in the private sector are disrespectful of privacy. Oh dear, it's not just Big Brother we need to worry about.

He explains that
Rights have been long understood, first and foremost, as protection of the private from the public, the individual from the State. True, we also recognize positive rights (such as socioeconomic rights) and the government’s duty to protect citizens from violations of rights by other actors besides the State. However, when violations of privacy are discussed, the first violator that typically comes to mind is “Big Brother” — that is, the State. This Article focuses on the growing threat to privacy from private actors, specifically profit-making corporations. It briefly outlines a range of options aimed at protecting individual privacy against encroachment by private actors, and it evaluates them within the prevailing normative, legal, and political context in the United States.
Etzioni concludes -
Corporations, especially those that make trading in private information their main line of business - the Privacy Merchants - are major violators of privacy, and their reach is rapidly expanding. Given that the information these corporations amass and process is also available to the government, it is no longer possible to protect privacy by only curbing the State. Suggesting that norms have changed and that people are now more willing to give up their privacy may be true, but only up to a point. The extent to which private aspects of one’s medical and even financial conditions are revealed is unlikely to be widely accepted as a social good. And violation of the privacy of dissenters and, more generally, of one’s political and social views (e.g., by tracking what people read) has chilling effects, whether or not the majority of the public understands the looming implications of unbounded profiling of most Americans. Self-regulation cannot come to the rescue because it assumes that individuals can sort out what corporations are doing behind the veil of their privacy statements, an unrealistic assumption. Banning the use of less sensitive information (in particular, about purchases) for divining more sensitive information (e.g., medical) — that is, outlawing Privacy Violating Triangulation — may serve, if combined with laws that add “patches” to the current patchwork of legislation, to cover new technological developments (e.g., social media). If such twin progress is possible, there will be much less reason to prevent the government from drawing on the databanks maintained by Privacy Merchants, because they would be limited to less sensitive information, and PVT of innocent Americans would be banned. Without such progress, one must assume that what is private is also public in two senses of these words: that one’s privacy (including sensitive matters) is rapidly corroded by the private sector and that whatever it learns is also available to the government.