Welcome to the Fishbowl:  Is there a Right to Privacy?

Monday, June 24, 2013

By Steven H. VanderLeest

Edward Snowden is on the run.  He is crisscrossing the globe to evade US authorities trying to apprehend him for leaking information about a government program to collect broad swaths of data regarding the phone calls of its own citizens.  The existence of such programs was previously denied by US intelligence officials—James Clapper, director of national intelligence , justified his original denial that the government collected such broad data by explaining he was forced to use the “least untruthful” statement in order to keep the program secret. Now that the program has been outed, these same officials tell us not to worry, they aren’t actually listening in on our phone calls, merely recording the time and destination of the call.  However, given that officials felt compelled to tell “untruths” about the programs in public testimony before congress, it is hard to discern whether these latest statements might be true or false.  Stories about (the lack of) privacy come out weekly.  This past week’s news not only continued coverage of the Snowden affair, but also informed us of the FBI using drones domestically and Facebook’s shadow profiles that collected and collated data on its users from external sources . 

These latest articles about the close electronic scrutiny of our everyday lives reminds me of “The Dead Past”, a science fiction short story by Isaac Asimov.  The protagonist is a historian, desperately trying to gain access to a chronoscope (a sort of time-machine that lets one see into the past), in order to study the history of ancient Carthage by direct observation.  However, the instruments are controlled by a heavily bureaucratic government.  After years of red-tape and rejections, he builds his own chronoscope—only to have it quickly confiscated by government agents.  It turns out that the instruments have poor resolution so that they cannot go back very far into the past.  The government keeps the machines under lock and key because they realize the implications for privacy:  the past begins immediately after the present, and thus one can observe another’s private behavior with such a machine that can clearly observe what happened seconds ago.  The past is not so dead afterall!  The story ends with the inadvertent publication of simple instructions for building a chronoscope and thus privacy is destroyed for all: “Happy goldfish bowl to you, to me, to everyone, …”.  It seems that the NSA program to spy on us is the first step to living in such a fishbowl.  However, unlike a public fishbowl, when only certain people have access to otherwise private information, that access represents power—and power can be abused. 

The US Constitution does not have an explicit right to privacy.  However, over the last hundred years the US courts have interpreted several clauses in the Bill of Rights to include privacy, particularly the 4th amendment’s banning of unreasonable search and seizure and the 14th amendment’s prohibition on limiting one’s liberty (extended to include privacy) without due process of law.  Other nations have followed suit, giving limited privacy protections to citizens because such benefits have been collectively endorsed by society. 

There are legitimate reasons to keep personal information confidential.  Privacy helps prevent identity theft.  Privacy prevents stigma because of medical conditions or embarrassment because of personal traits or behaviors.  Privacy protects intellectual property, such as trade secrets and proprietary information such as a “secret sauce” ingredient. 

The secrecy of our data is valuable to us because of the potential harm that comes with its public release.  It thus represents a kind of power.  Your identifying information enables you to conduct business and obtain services.  You share certain information with selected organizations in order to confirm your identity.  As long as only you and they know that information, it serves as your ID.  However, once you or any of those organizations lose control of that information and it falls into the wrong hands, your ID is no longer secure and others can successfully impersonate you on-line.  Thus a thief who steals your identity holds power over you.  Likewise, an unscrupulous person who learns of your confidential medical condition could use the power of that information to blackmail you, shaking you down for cash in order to keep the information from going public.  Likewise, corporate espionage seeks to balance the power between two companies by stealing intellectual property.

The Bible doesn’t have much to say about privacy.  We could infer it from the commandment against stealing, to include stealing someone’s intellectual property, but that seems to be more about justice than an endorsement of privacy.  Privacy shows up more explicitly in the Sermon on the Mount, where Jesus exhorts us to keep our giving secret (Matthews 6:3) and keep our prayers secret (Matthew 6:6).  However, in both these cases, the purpose of privacy is not to give us power, but rather to avoid prideful pretentiousness.  Making our giving or our prayers public would let us show off.  Keeping them private keeps them directed to God instead of fellow humans. 

In the same sermon, Jesus tells us to avoid judging others, lest we ourselves be judged (Matthew 7:1).  His mandate recognizes that we only have a partial picture of our neighbors, and it is wrong for us to judge them without knowing their circumstances fully.  Thus there is an implied value for keeping information about others private and not gossiping about it.  Albert Borgmann notes the connection between privacy and judgmentalism:  “...Thomas Huff has helpfully isolate the notion of privacy as freedom from intrusions that can lead to an unwarranted judgment on the person whose sphere of intimacy has been invaded. Of course, our next of kin, who are naturally members of our personal circle, and our friends, whom we have invited into it, are entitled to judge whatever we do. No one else may without our permission.” (Albert Borgmann, Power Failure: Christianity in the Culture of Technology, Grand Rapids: Brazos Press, 2003, p. 40.)  However, Borgmann then observes that we often use privacy to shield our consumerist behavior from the prying eyes of others.  “What Huff calls the privacy norm is in large part the collective affirmation of consumption as an exercise of freedom that would be encumbered by judgmental intrusion.” (p. 43)  Materialism is not the only bad behavior we attempt to keep secret. Most sins are private affairs that would shame us if made public:  adultery, addictions like alcoholism, domestic abuse, and the list goes on.  Electronic anonymity (or at least the perception of it) encourages parallel bad behavior on the net, including online affairs, gambling on the web, and cyber-bullying.

Our legal right to privacy is not absolute—one’s privacy can still be invaded if warranted, i.e., if due process is afforded to ensure the invasion is justified, in the judgment of a fair and unbiased court.  This is important to prevent abuse of those rights.  Christians should use even more caution when exercising the privilege of privacy, since it is so often merely a pretext to keep our sinful ways out of the light of day.  Accountability to others is usually highest to our most intimate associates (spouse, co-worker, family, friends, boss), in part because of their physical proximity, access to our immediate environment, and their ability to regularly observe our behavior.  However, privacy allows us to hide from that accountability.  For example, we can use encryption to obscure our electronic communication from everyone but the recipient, thus bypassing any accountability lines we might otherwise have to our friends and family.  While there might be legitimate reasons for keeping that communication out of the public eye, how do we avoid the temptation to use privacy to hide our bad behavior?  Here’s a check.  Would you dare let a trustworthy friend review your past week’s email or web browsing history? 

“It is shameful even to mention what the disobedient do in secret. But everything exposed by the light becomes visible.” (Ephesians 5:12-13, NIV)

“Therefore judge nothing before the appointed time; wait until the Lord comes. He will bring to light what is hidden in darkness and will expose the motives of the heart.“ (1 Corinthians 4:5, NIV)

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(c) 2013, Steven H. VanderLeest