To a degree unheard-of even five years ago, we live our lives mediated by Firefox browsers and Droid screens. And that means — whether it's ostensibly protected sensitive data (financial and medical data), ostensibly inconsequential personal data (Flickr photos, YouTube channels, Twitter feeds), or ostensibly de-personalized behavioral data (browsing patterns, search queries, HTTP cookies) — our lives are nowhere near as private as we might presume them to be.
"Precisely because the tech advances have come in so many places, it's really quite hard to pick any one particular spot that's the biggest problem," says Lee Tien, senior staff attorney at the Electronic Frontier Foundation. "They all converge. Because we have a giant personal information superhighway, where all of our information travels around both the government and the business sector, what gets picked up in one place is being transferred to another place. So it all ends up, not necessarily in a central basket, but in a lot of different baskets — where it can always be accessed."
"Data collection is becoming ubiquitous," says Jules Polonetsky, co-chair and director of the Future of Privacy Forum, and former chief privacy officer at AOL. "It's not science fiction anymore to think there are lots of databases that have everything we've done: every search we've done, every Web site we've visited."
It might be comforting to think that our online identities are just anonymous strings of ones and zeros, but that's just not true anymore. So what we used to loosely define as "privacy" — an admittedly amorphous concept — is changing fast. And only recently do consumers, voters, politicians, and the media seem to be grasping that fact.
Before, "we had privacy from obscurity," says David Ardia, another fellow at the Berkman Center, and the director and founder of the Citizen Media Law Project. Now, almost everything worth knowing about almost anyone is online.
"That means it's searchable, and it's available forever. And I don't think we've caught up to that change in the way we structure our lives and the way we understand privacy"
'They want to know more about us'
To begin with, privacy is a problematic notion.
"It a very misunderstood concept from a constitutional point of view," says civil-liberties attorney and longtime Phoenix contributor Harvey Silverglate. "There are some parts of the Constitution, and of the Bill of Rights in particular, that are quite specific about it. And there are others that are quite general and amorphous."
While the First Amendment is very explicit, for instance ("Congress shall make no law . . ."), the Fourth Amendment ("unreasonable searches and seizures" . . . "probable cause") leaves a lot more wiggle room. It's "seemingly intentionally vague," says Silverglate — as if "left for the particular era and particular culture to define." The result is a wording that suggests people are entitled to a reasonable degree of privacy — but just what it is differs in any given environment.
Obviously, the Framers "didn't envision the Internet or telephones, but they obviously understood that this was an area that was going to be evolving, and they couldn't define it."
And so we find ourselves, at the beginning of the second decade of the 21st century, still trying to figure all this out.