Laurence Léveillé | Staff Writer
In exchange for a digital identity, people have given up their privacy.
Google has kept archives of emails sent and friends’ replies for the last six years. Facebook tracks people’s activities all over the Internet, even when they are logged off. And Twitter taps into entire address books when people use the “find friends” option and archives it for 18 months.
For those who do not use Facebook or Twitter, that does not mean no one is watching them, said Dahlia Lithwick, who reports on the law and the U.S. Supreme Court as a senior editor of Slate magazine. People can be tracked by turning on their phones, using an E-ZPass or using a Starbucks card.
“You are being watched whether you’re on ‘the Tweeter’ or not,” she said, poking fun at what Justice Stephen Breyer once called the popular social media platform.
Lithwick spoke about digital privacy during Thursday’s morning lecture in the Amphitheater for Week Six, themed “Digital Identity.”
In the near future, Lithwick said, the government could have the ability to track people using GPS devices on phones, use facial recognition technology to find people in any database, and access information turned over to third parties.
“Now, the good news is you may never know that you are being watched, photographed, tagged and monitored by your own government,” she said. “The bad news is you may never know that you are being watched, photographed, tagged and monitored by your own government.”
Invasion of privacy will happen more as it becomes normalized, Lithwick said.
Lithwick said she believes people have been naïve about how the digital world can intrude in their privacy. She is concerned about the people, not the technology.
“I think we have been shockingly complacent about letting the government and big corporations simply swallow up our data and our habits and what might in fact be our very selves,” she said. “And we have done so without backlash and without pushing back.”
When the Constitution was written, privacy in homes, papers and effects was the main concern. In Homestead v. United States in 1928, then-Chief Justice William Howard Taft decided government wiretaps were not “searches or seizures” under the Fourth Amendment, because they did not involve physical trespassing.
At the time, then-Justice Louis Brandeis argued that phone conversations could be just as intimate as letters. Lithwick said today Brandeis might say Facebook images and Google searches are part of what he would describe as “intimate occurrences of the homes.”
“The most intimate occurrences of the home are outside the home more often than they are in the home,” Lithwick said.
They now occur in our emails, texts, photos on Facebook, when we walk through airport scanners and more.
The post-Sept. 11 panic, changes in technology and the public’s need to be connected through sharing have all shifted the state of privacy, Lithwick said.
“To shorthand those three, I would say, ‘We were scared, the tech was there and, oh, we love to share,” she said.
Lithwick said it was a rational response for people to say they were willing to give up freedom and privacy for the sake of their safety after Sept. 11.
Six weeks after the attacks, Congress passed the Patriot Act, but most congressmen and women had not read it beforehand, Lithwick said. By approving the law, Congress had accepted wiretaps, the seizure of business and judge-free search warrants, she said.
“The Patriot Act changed everything,” she said. “The Patriot Act loosened constitutionally required checks and balances in so many areas of government surveillance.”
One of the most important changes, Lithwick said, was that it expanded the government’s ability to look through people’s records.
In the book The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age, Jeffrey Rosen wrote that after the Sept. 11 attacks, the American public was willing to abide by laws “that promised them complete and perfect safety even if it meant taking away complete and perfect privacy,” Lithwick said.
At the same time, there was a rise in surveillance technology. The Total Information Awareness program was developed to provide data mining and data profiling. The program was defunded, but the technology still exists, Lithwick said.
“It’s not just the security companies and the biometric entrepreneurs that profit from gazing in at us,” she said. “It’s our own friendly social networks — Facebook, Twitter, Google.”
A rule of thumb, Lithwick said, is that people are the products of any service they use for free, not the customers. Although websites such as Amazon sell merchandise to people, they are really selling people to advertisers.
To do that, she said, the websites take the information people provide and give it to third parties. In turn, ads are targeted toward people based on that personal information.
People have not understood the meaning of privacy, and as a result, it has been violated in their own lives, Lithwick said.
Lithwick referenced Monday’s morning lecture with Sherry Turkle, director of Massachusetts Institute of Technology’s Initiative on Technology and Self. She agreed in the concept of “I share, therefore I am.”
The definition of intimacy has become the act of sharing intimate information with anyone, she said.
“And often, it’s not about communicating as much as it is just emoting and hoping desperately that someone out there will emote back,” Lithwick said.
It is a lie to believe the digital selves people build online are more than another performance of self, Lithwick said. As more information is compiled about people online, they lose more of themselves to an Internet version of themselves.
“The whole of our digital identity is deconstructed by someone somewhere and reassembled by entities that know nothing about us and never will,” Lithwick said.
Though younger generations have a grasp on privacy, they do not necessarily think of it, and people have not explained why it matters, Lithwick said.
When the Fourth Amendment was drafted, framers were responding to British general warrants, Lithwick said. The warrants were based on nothing and served to prove disloyalty to the crown. The issue framers considered was that embarrassing, unknown information would be discovered and exposed.
“The Fourth Amendment had nothing to do with protecting anything other than privacy and intimacy,” she said.
Many Americans believe that they do not mind forsaking their information because they have nothing to hide, which implies only people who have done wrong require privacy, Lithwick said. But she argued that that idea misconstrues the definition of privacy.
One instance in which people have pushed back against digital invasion of privacy has to do with advanced imaging technology at airports. Last month, a man from Oregon walked through a scanner completely naked, Lithwick said.
“Our privacy is so much more than the bodies we are behind our clothes,” Lithwick said, “and the loss of our sprawling digital selves is so much harder to comprehend and to constrain than the loss of our pants at an airport.”
Editor’s note: This Q&A has been edited for clarity and length.
Q: This feels so different than the privacy issues that — for those of us who went to law school — we learned about and others have read about, because they were government intrusions. This is so much with our willing involvement. How does that change how we try to move forward in solving this issue?
A: That was the question I was hoping someone would ask. I think the short answer is that either courts are going to start to get involved in some way — because even though it’s Facebook, and there’s no government action, certainly if Facebook were to pick up, say, government surveillance cameras, the government is involved, and then there is government action. I think the better answer, or in my view, the more promising answer, is really congressional action on these issues. There are amazing groups — watchdog groups — who are doing fantastic work. We have to hold the agencies to their responsibilities. I think this is something that’s probably not first and foremost going to come out of the courts. I think we’re going to have to look to Congress to do a good job of regulating these issues. The last piece of this — and it’s so important — is that new technologies are in fact being developed to protect our privacy. So, for instance, there’s a new technological fix that’s called TigerText. Believe it or not, it was named TigerText before Tiger Woods got in trouble for texting his friend. But somehow, magically, it’s called TigerText, and what it will do is allow you to make sure that a text you send simply disappears from servers. There’s another program being developed at the University of Washington called Vanish that will have all your electronic data basically vaporize after a period of time. I want to be clear, Mark Zuckerberg doesn’t like any of these ideas. He says “No, people like transparency. They want their data to be there in perpetuity.” I think that we’re going to have to see companies come in and develop new technologies that obviate hoping that Facebook and Google are going to develop those technologies. I think that’s where some of the fixes are going to come from.
Q: Can the Freedom of Information Act give us information as to what the government has on us via digital information? Can this information be disclosed to us?
A: Yeah. FOIA works, as against the government. You can use the Freedom of Information Act. It’s a long and quite, exhausting process. But the real problem that a lot of us have is that the Freedom of Information Act can’t be used against private entities. It can only be used against the government. So you don’t know what other third parties have, and that’s where I get very nervous.
Q: What do you do to protect your own privacy?
A: Oh god, ask my husband. He’s had his head in his hands, because I am one of those people who only, sort of very slowly, uses the maximum privacy protections on Facebook, and uses the maximum privacy protections as I can figure them out. It’s slightly different for me, only because I guess I’m a somewhat public figure, and so I have just come to accept that there’s going to be more scrutiny. I, for instance, am very careful not to name my children, not to even name them on Facebook. So I think there are things you can do, but I certainly understand — and I also should add that I don’t sext, not even if you ask nicely. Part of it is I have pretty high boundaries about what I share. Probably, my husband would say not high enough. Largely, I think that I have come to accept, right or wrong, that when I walk through that naked machine at an airport, that image is preserved. And I hate it, but you know, that is the world we live in. And that’s one of the things that worries me. I think that we have simply conceded defeat on a lot of the critical privacy areas we’re talking about.
Q: Are Skype video conversations surveyed, recorded and archived?
A: Are they archived? You know, I don’t know the answer to that. I’m imagining yes, but that’s a great question. I just don’t know the answer. But I may not Skype until I find out the answer.
Q: Are websites such as Bing safer than Google, as they claim they don’t keep track of what sites you visit online? To what extent do such sites exist, and do they truly do as they claim?
A: I think probably Bing is safer than Google. I think Gmail and Google are pretty universally regarded as one of the big offenders. You know, one thing I did want to mention, just slightly apropos of this, is that Europeans have a very, very different view of monitoring privacy. So they all, believe or not, in Europe have privacy commissioners, who work very, very hard to do away with some of the problems I’ve described here today. So just for instance, in France, if you decide you want your Facebook past to be eradicated, if there’s something embarrassing there or you just regret something you posted two years ago, by law you have the right to have that scrubbed — in Europe. In this country, the law only exists in the extent that you’re under 13. So you can scrub your 13-year-old’s digital past, but not your own. One of the things that’s really fascinating is that in countries like Argentina, that have incredibly robust privacy protections or what they actually think of as dignity protections, they’re making demands of Google, and YouTube and Facebook that obviously don’t map onto what happens here in this country, where we’re vastly more protective. So there’s a real questions about, in a global world, where you have different laws in different countries, how that’s going to map out. Some people have come to believe that when all of Europe is saying you can simply scrub your entire digital past if you so wish and the United States becomes the outlier when you can’t — that at some point, you will be able to scrub your digital past, because we can’t hold out forever. One of the things that’s very, very interesting is differences between different countries and how they have addressed this problem and the extent to which the United States — which we think of ourselves as deeply privacy-protective — but we’re emerging as really the least privacy-protective country in the world.
Q: Are there privacy issues concerning online banking?
A: There are privacy concerns concerning banking, because those are public records, and they’re third parties. I want to be clear that there’s a ton of legislation. Just before I spoke, I just wanted to tell you that there are bills — all throughout the House and constantly being passed — to try to protect us more and more. For instance, I think medical records are safer than they ever were. There are 10 different bills that I count pending that have to do with identity theft — I.D. cards, homeland security, medical privacy, financial privacy. So I don’t want to suggest that nothing is being done. These are all areas in which Congress has been pretty active. But what I think I do want to suggest is that it’s very interesting to me that the same five GOP senators and the same five Democrats bring all these bills. This isn’t something about which there’s a huge consensus in our government that we need to address this. So, you have the civil libertarians on the left and the libertarians on the right joining together, but the middle is very quiet on these. One of the things we really can do is urge our elected officials to become those people who are passing these bills, who worry about this stuff.
Q: It sounds as if justices Alito and Sotomayor are fairly educated about new technology. Can you comment on how well the rest of the court gets it? Do judges need remedial tech education?
A: You know, I will tell you that the Chief Justice — who is, by the way, certainly relatively young to the other justices — still writes out each of his opinions with a pen on a pad, which they were doing in 1804, but nobody has done since. The Chief Justice is very “tech-anxious” — I think is the word I would use. The different justices are different about things. Justice Scalia now brags that he has an iPad, so I think they’re coming around. I was a little bit kidding about the frozen yogurt machine; I mean, it really didn’t cause a crisis. I do think that the younger justices are in such a different cohort from the older ones. You can really see on display, often in these cases, just a huge gap between what the justices who are 80 are thinking and the justices who are 50 and 60. And I think I would even go so far as to say that the justices who have — in this case, only really Roberts — small children — he thinks very differently about technology and privacy, because he has small kids at home. Last year, when the court heard a violent video games case, he was incredibly energized. Because for him, there was some sense that he didn’t understand the technology, but it was reaching out to grab his children. Some of the justices — I think, famously, Justice Breyer, in one case that I remember sitting through couldn’t understand how garage door openers worked. It really does differ from justice to justice. I love Justice Breyer — I don’t want you to think I’m making fun of him — but he really didn’t know. I think from justice to justice, it really does differ. I think I even want to add this little coda, which is I think some of the justices’ attitudes about allowing televisions into the court are very bound up with their fears, not just about technology, but about new media. I think they’re anxious about the Internet, about Twitter, about Facebook, and that is quite evident in the difference about how they feel about television.
Q: Are there some steps you can take, short of giving up Facebook, that would increase your privacy?
A: I would suggest that you should all just Google ‘Facebook’ and ‘privacy’ and 10 good articles from Wired magazine will come up and tell you how to absolutely maximize your Facebook. There are steps you can take to be much safer on Google. I would really urge you to look into that facial recognition stuff and make sure that that is disabled for you. But I don’t want to tell you to be off Google. I think what I want to tell you is to be one of those consumers that presses Google and Facebook to change their policies. Because, believe it or not, when they get pressed, they do change their policies. They simply set the default for the most transparent public settings. You can get them, with pressure, to change the default. Because, in many cases, the default is the worst possible thing for privacy; the onus is on you to change the default, but the meta-onus is to get them to change the default. I would urge you to do both of those things.
Q: A question that goes to why we have this need to share — is it a function of the lack of extended-family living, neighbors, etc., that provide a social network? Another question asks whether it’s the celebrity cult that we seem to have in society today.
A: I’m going to give the prefatory warning that I’m just a legal journalist, and that’s probably a better question for someone like Sherry Turkle. My own sense is that it is a little bit of that. I think that we are the most connected, isolated people in the world. In other words, I really profoundly believe that despite the fact that we are fanatically reaching out and touching everyone that we can reach out and touch, we are still pretty lonely. I do think it has something to do with our families, with mobility, with all the factors that have made us remote from the people we love. I think I would agree with the second question as well, which is I think I really do have a sense — and the best way I can describe this is to say my reader mail has really changed in recent years. I feel that readers who write to me really want to be heard, and they feel they’re not being heard. There’s a sense in which everybody has a story, and people want to tell their story, and they feel like they’re in this bubble of white noise. Their story is really important. I think, in the end, it’s not just that we all want to be on “Dancing with the Stars.” I certainly don’t want to be on “Dancing with the Stars.” But I think we want to matter. I think we want to be validated and honored. And I think we want to be heard. And I think we live in a world where we happen to be in a setting in this country where everybody is talking and nobody is listening. And so my takeaway is that we over-share, because we just need to get above that level of noise and be heard. I think that if we did a better job of listening — not talking — we might be less inclined to over-share.
—Transcribed by Sydney Maltese