Look at the  recent Daily Bits:An existential threat to America, What you can do to defeat the Republicans

Len’s Letter #21                     Privacy

What don’t you want people to know?

  • You are having an affair and who that affair is with.
  • Your sexual orientation is.
  • You had an abortion. What are you doing to avoid having a baby. What you are doing to make sure you can have a baby.
  • You are stealing money from where you work. Or where you don’t work.
  • How much money you actually make. How much in debt you are and to whom.
  • You are cheating on your taxes.
  • Whether or not you believe in God. What church you belong to and why.
  • What politician you give money to. Why you give money to a politician.
  • Where you are going and when you go there.
  • Who you have been cruel to. Who has been cruel to you.

Do we have a right to keep these secrets? Do politicians have a right to keep these secrets? Should the government be able to investigate to find these things out? Under what circumstances should the government be able to investigate to find these things out?

Think about these questions practically instead of legally. Think about your community instead of your government. How easy is it? How difficult is it for people to know whether or not you are having an affair, where your money comes from, what your religion or politics are, what you are like in your personal relations.

I live in New York City now. A city of more than eight million people. My wife and I have lived here for more than ten years. We begin to think about our neighborhood as a community, especially on days when we walk ten blocks and run into people we know. But living in New York City also allows you to feel as if you are anonymous.

We used to live in a small town in Massachusetts. A town with fewer than 5,000 people. I worked for five different small towns none with more than 2,000 people, two with fewer than 1,000. People in small towns, especially those who want to know, know a lot about you. If you are a school superintendent, which I was, people want to know a lot about you. If your kids are athletes, which my kids were, people follow them. They may know more about them than you do.

The constitution is one factor that affects the extent to which you can keep certain things private. A president who chooses not to release his taxes may or may not find that tax information is, nevertheless revealed. Look again at the list above. Which of these is Donald Trump keeping secret by not revealing his taxes. What constitutional protections is he afforded as he works to keep information secret?   You don’t have to be a constitutional originalist to wonder what secrets the Founders intended people should be able to keep secret.

You can take steps that have nothing to do with the constitution to keep information secret. If you don’t want the police or others to know where you travel, pay cash on toll roads. Pay cash for what you buy. That may seem like opting out of the twenty-first century, but you can keep some privacy that way. Except for what you can’t control. The New York Times recently had a front page article about facial recognition software. If someone takes a picture of you and that picture becomes available, your privacy may be gone. Pictures may be a product of a security camera, a published picture by a news photographer, or an amateur photo posted on line.

The Founders do not appear to have been conscious of addressing privacy in the Constitution. Most people lived in small towns where not a lot was secret. Big towns were smaller then. New York City had just under 50,000 people. It was he largest American city.  it was a little larger than Burlington, VT is now.  According to the 1790 census, Philadelphia had fewer than 30,000 people. Boston and Charleston fewer than 20,000. Providence had slightly more than 6,000 people, a trifle larger than the small town we lived in in Massachusetts. Keep a secret in a town of 6,000 people? Even one with 50,000 people.

New attention was paid to constitutional issues related to privacy in the late nineteenth century. The country had grown larger. People had grown more accustomed to anonymity. In 1890, New York City had a population of less than 6 million people. Philadelphia was just over one million. Boston was just under a half million. Charleston was still small at slightly more than 50,000. Providence, on the other hand, had increased to more than 130,000.

The anonymity afforded by larger places was offset by more comprehensive governmental record keeping and by new technologies. Prohibitions against opening mail without a warrant were passed. Questions were asked about whether the same privacy should be afforded to telegrams and, not long after that, to telephones. Questions were asked about publication of photographs or the use of photographs for advertisement or other purposes without permission. Issues of actual invasion of a person were addressed in the courts.

These themes continued throughout the twentieth century. Government record keeping become more comprehensive as the government’s desire for personal information increased in response to real or imagined international and internal threats. The technical possibilities for gaining information increased.  Legislatures and courts were more willing to address governmental intrusion on persons – abortion among them.

Where we go in the twenty-first century is not clear. The internet is an intrusive technology, collecting and dispensing more personal information more broadly than any prior technology. Facial recognition technology, the topic of the NY Times article, can allow the police to observe potential crime sites more effectively. Facial recognition software creates opportunities to spy on activities that may be embarrassing, but are not criminal.

Billionaire Libertarian Peter Thiel, was an early financial supporter of Facebook and of Clearview, the facial recognition software provider. Some suggest that there is no irony here, that Thiel is gradually making a U-turn toward becoming a national conservative.

Facial recognition software has made enormous strides, making it less likely, for instance, that my wife will be identified whenever there is a picture online of her cousin. The New York Times concluded its article describing the results of a free trial for Clearview software in Clifton, New Jersey. The police identified shoplifters, a thief at an Apple Store, and a righteous defender who punched a man threatening people with a knife.

My concluding question is another quote from the NY Times article – this one from David Scalzo. Scalzo’s firm, Kirinega Partners, is another early funder of Clearview. He says “I’ve come to the conclusion that because information constantly increases, there’s never going to be privacy. …..Laws have to determine what’s legal, but you can’t ban technology. Sure, that might lead to a dystopian future something but you can’t ban it.”

Moving toward a dystopian, intrusive future? What is dystopian and what is simply the consequence of living in the world?   When do privacy intrusions resemble what it is like living in a small town. In the late eighteenth century? In the twenty-first century? Rather than fearing or, worse, accepting some kind of dystopia, we could develop standards for privacy that are based on the level of privacy that people have or don’t have in small towns.

Moving toward a dystopian, intrusive future? We do need to maintain standards about how privacy is invaded, who does it, and why. Start with this: When the government watches or manipulates in order to make force conformity, that is dystopian.