Wanting privacy shouldn’t be conflated with having something to hide

Memeburn has a good article titled Privacy is worth protecting, even if you have nothing to hide which is a great reminder that privacy isn’t about having something to hide. There are many valid reasons to insist that your right to privacy be respected:

The reason most often given for failing to consider digital privacy in our day-to-day lives is that, if we have nothing to hide, there’s no need to. Others, meanwhile, take the line of thinking proffered by those institutions caught eavesdropping and argue that monitoring metadata alone — information about, for example, which telephone number you called when and for how long, rather than the content of the call itself — doesn’t amount to an infringement of privacy.

Both of these arguments are fundamentally flawed. Wanting privacy shouldn’t be conflated with having something to hide. There are plenty of legitimate reasons for people to want to keep certain things private – from their religious or political affiliation to their sexual orientation or drunken photos they’d rather family or employers (current or potential) didn’t see. For political dissidents living under repressive regimes, meanwhile, privacy can be a matter of life or death.

Here are two other perspectives:

Is privacy a recent fiction or a neglected human right?

Google’s Chief Internet Evangelist, Vint Cerf, recently spoke at the FTC’s Internet of Things Workshop where he suggested that privacy is a recent construct our society created when technology made it possible. Is privacy an anomaly, as he suggests, or is it an important right which technology has enabled and which we are neglecting to the point where we are negating it so we can share more stuff with each other?

Google’s Chief Internet Evangelist, Vint Cerf, recently spoke at the FTC’s Internet of Things Workshop where he suggested that privacy is a recent construct our society created when technology made it possible. According to The Verge’s coverage of his speech, privacy wasn’t a given just a few decades ago –

Elaborating, he explained that privacy wasn’t even guaranteed a few decades ago: he used to live in a small town without home phones where the postmaster saw who everyone was getting mail from. “In a town of 3,000 people there is no privacy. Everybody knows what everybody is doing.”

Rather than privacy being a fundamental right which is being threatened by technology (as we’ve seen through the recent government surveillance revelations courtesy of Edward Snowden), he argued that technology has both enabled what we take for granted as privacy today and, at the same time, is enabling us to erode it. I don’t believe he was arguing that privacy as a preference for being secretive is a recent invention. I suspect people have always tended to have a sense of their private spaces and have protected that in varying degrees, to the extent they have been able to. What is fairly recent is this idea of a right to privacy which is protected by legal authority.

Our right to privacy in South Africa has evolved through our common law and was entrenched as a fundamental right in our Constitution. The right to privacy is described in section 14 of the Constitution:

Everyone has the right to privacy, which includes the right not to have-

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed.

It is not an absolute right but it is an important one. It is also a right which we have to be mindful of and actively protect. What has been happening, instead, is that we have become accustomed to abdicating our right to privacy in exchange for access to online services and the ability to share more stuff with each other. This isn’t an egg we can unscramble. As Cerf pointed out (courtesy of The Verge) –

”Our social behavior is also quite damaging with regard to privacy,” Cerf says. He gives an example how a person could be exposed doing something that they wanted to keep secret by being tagged in the background of a stranger’s photo — a photo they never expected to be caught in. “The technology that we use today has far outraced our social intuition, our headlights. … [There’s a] need to develop social conventions that are more respectful of people’s privacy.”

This touches on my 2012 post titled Changing privacy norms where I wrote about our changing understanding of what privacy is and how our online activities are shrinking our expectations of privacy. Most people still think privacy is about secrecy but it is really more about how much control you have over your personal information which you have disclosed and continue to share? The more we share with each other online, the less control we have and virtually every controversy over an apparent privacy violation by a social media service is actually a further consensual encroachment into what remains of our private spaces that we have enabled.

Privacy may have been a very different sensibility before 20th century technologies enabled more effective protections and modern laws created more clearly defined privacy rights but we are complicit in continued privacy erosion through our digital tools. The big question is how aware we are of this, its implications for our future society and whether we are comfortable with the very public future that lies ahead?

Super-injunctions, football players and their affairs

While they were initially intended to protect the people whose lives may be at risk should their identities ever be exposed (for example, child offenders), super-injunctions are being used by English celebrities and other personalities to stifle freedom of expression in England and Wales. Not only do these orders prohibit publication of information the applicants regard as sensitive but the orders prohibit any publication of the fact that they exist in the first place. These orders only appear to be enforceable in England and Wales and should be too much of a concern for anyone outside the United Kingdom, as I understand their application.

One case has become particularly well publicized regardless of the super-injunction apparently in force largely due to a @PigSpotter-style Twitter account set up to shine a spotlight on these super-injunctions and the secrets they are intended to hide.

Super injunction tweet

@InjunctionSuper published this tweet exposing an affair between UK soccer star, Ryan Giggs, and Imogen Thomas. This tweet sparked legal proceedings which Ars Technica tried to describe recently:

That brings us to today. An entity going by “CTB” has filed suit against Twitter and some of its users for breaking a super-injunction over… something. According to Bloomberg, there were no details on what the super-injunction was about or who was accused of leaking the information. However, the initials “CTB” are also used in a separate suit about an athlete who won an anonymity order after allegedly having an affair with a reality TV “star,” leading many to believe that CTB is the athlete and someone posted details of the affair to Twitter, leading to the new lawsuit.

Twitter is listed as a defendant in the suit, as well as “persons unknown responsible for the publication of information on the Twitter accounts.” It’s not clear how the High Court plans to get a US company like Twitter to comply, though. According to US law, sites like Twitter and Facebook aren’t liable for the crazy postings of their users thanks to Section 230 of the Communications Decency Act, and for most things, users’ speech is protected by the First Amendment. 

As for Twitter’s response to the story: “We are unable to comment.”

Update: We’ve been informed by our resident Brit (Peter Bright) that CTB is soccer player Ryan Giggs, who is believed to be attempting to cover up his affair with TV personality Imogen Thomas. It’s also worth noting that this is information that is easily found on the Web. 

To say the effects of these super-injunctions are chilling is an understatement. I have great difficulty seeing these sorts of orders ever getting past a Constitutional test in our courts and yet they seem to be fairly common in English and Welsh courts, ironically due to an interpretation of the 1998 Human Rights Act passed in the United Kingdom.

Giggs and other super-injunction applicants face a number of practical challenges enforcing their orders. One of those challenges is the Streisand Effect which Giggs appears to be unaware of and which has led to exposure of his identity on Twitter and elsewhere (at one point his name was reportedly mentioned 16 times a minute). His efforts to make use of an extremely onerous legal mechanism (one which UK government ministers are expressing increasing concern over) to stifle freedom of expression in order to keep his alleged affair with Imogen Thomas secret are only contributing to the whole affair’s increased publicity.

Underestimating the Streisand Effect is becoming a classic mistake made by litigants and their lawyers who are unfamiliar with the phenomenon and the manner in which these sorts of memes can rapidly go viral across the social Web. It is also a phenomenon which reputation management experts are very much aware of and seek to guard against where possible. The Giggs-Thomas story and the super-injunction used to conceal it will likely be of passing interest for the duration of this particular news cycle but it is yet another reminder of how lawyers must approach certain issues very differently. While Twitter, Facebook and other social Web platforms can be, and are being, used to defame people and invade their privacy, unscrambling those eggs can prove to be virtually impossible.

Super injunction mention in Parliament

As I end off this post news is breaking on Twitter that Ryan Giggs has been named in the English House of Commons as the person behind this super-injunction, opening the Twitter flood gates. John Hemming MP is taking advantage of a qualified indemnity granted to English lawmakers to reveal Giggs identity. Officially, at least.