[This blog entry is the last of the three devoted to reflections on the Patriot Act, ten years later, an excerpt of a longer article about the Internet, entitled:"What Manner of Salutation Be This? Social Dimensions of the Internet," which I am writing for a book on Cyber-Crime edited by Sam McQuade at the Rochester Institute of Technology.]
The free market’s manipulations of personally identifiable data might partially explain why people have fallen into a spell. All those notices piling up in the mailbox informing people of a breaches become meaningless after awhile. Meanwhile, corporates could not operate without data mining and recombining practices. Entirely under the protection of the law, companies create “profiles” of individuals that encompass everything about them from determining whether an individual qualifies for a loan to obtain employment. Targeted marketing occurs now in the main, especially on search engines and web sites. The unregulated sale of all of that information to any bidder –including crime syndicates located outside the U.S. jurisdiction – occurs with abandon. An explosion of identity theft has only resulted in the creation of new information security industry that specializes in breach notification, credit monitoring and a feast of other financial and reputational services.
The real shocker is how much information individuals voluntarily put on offer in chat rooms, surveys, and especially social networking sites. In fact, although many sensitive observers immediately identified privacy as a concern in the Internet era, the topic did not come clearly into focus until the advent of Facebook. Around the start of the ‘teens, half a billion people around the world had profiles. Most merely made a simple statement of creating a file. Many broadcasted a message of who they were, or perhaps wanted to be, or maybe were posturing as, or possibly turning out a new identity, or just saying hi to their grandchildren or sharing photographs and information as mundane as a sweet smile, crude as a fraternity prank, clever as a clown, shocking as a revelation, mad at the end of a relationship or celebratory in the announcement of a new marriage. For anyone with ears open and eyes to see, there was nothing about which to be surprised. Facebook is a portrait in humanity.
With Latin roots “to put out in words,” and late Middle English “to render,” the term “exposure” is both a fact and a metaphor. No wonder that Warren and Brandeis deemed it the motivation for the first U.S. explicitly named privacy laws, such as invasion of privacy, misrepresentation of likeness and intrusion upon seclusion, based on the then new technology of photography in the late nineteenth century. Little used by the general public in the twentieth-century, these torts may have a second and much fuller life with tools such as webcams and PhotoShop, applications such as Facebook and Twitter, Juicycampus and CollegeACB.
Privacy is complicated because it encompasses so many concepts: reputation, information management and electronic surveillance. It emerges in civil law as torts such as defamation and less-known claims such as “intrusion upon seclusion” and “invasion of privacy.” Some of those claims have criminal counterparts. The student who videotaped his roommate at Rutgers University has been indicted on a New Jersey law that makes invasion of privacy a criminal action. Public privacy laws such as HIPAA carry heavy financial penalties and potential criminal action. Moreover, if Congress could update the Electronic Communications Privacy Act in a manner that maps the technology to the Fourth Amendment, criminal action would be available against individuals who tap lines and law enforcement under civil rights laws too.
That revision would not make government purchase of information about individuals collected by third parties illegal, however. To close that loophole would require significantly more public engagement than seemingly exists now. That line of thinking would open the public to the larger question of why U.S. law does not regulate the collection, preservation, recombining and sale of information about individuals. It would raise awareness about the larger issues of privacy that speak to semiotic democracy. It would break the spell of the poppies. Personal autonomy and political liberties hang in the balance.