Here’s something a little outside the normal Lawfare fare but which Lawfare readers might find interesting: A new paper we have written about all the privacy benefits we receive from technologies we typically think of as privacy eroding. Entitled “The Privacy Paradox: The Privacy Benefits of Privacy Threats,” and published by Brookings, the paper sets forth the basic idea that the American (and European) privacy debates keep score very badly. When confronted with technologies that give us new privacy with one hand and erode privacy with the other, we tend to pocket the gains without thinking about them while worrying endlessly about the erosions. In this paper, we try to imagine a more rigorous balance sheet---one that includes the privacy benefits of things like searching for sensitive information on Google, reading on your Kindle, online shopping, and getting your porn online. It’s not about NSA, but we hope it is a disruptive look at the larger subject of how our society conceives of privacy as a value.
The 1971 Woody Allen film Bananas contains a scene of cringing comedic embarrassment: Allen is at a newspaper store, trying to buy pornography, and doing so in person makes him acutely conscious of being watched and judged. He flips through some magazines, hoping to disguise his purchase amid others. He then stops and nervously scans the store. A older, stern-countenanced woman stands close by. Turning back to the magazines, he narrates aloud as he gathers his selections.
“I’ll get a copy of Time magazine.” He pauses, shoots a quick glance at the older woman. “I’ll take the Commentary and Saturday Review. And uh, let’s see, Newsweek…”
In between the respectable magazines, he sandwiches his porn selections.
Satisfied that he has buried the disreputable within the higher-minded, he walks up to the counter. He’ll take them all, he says, anxious to pay for his selections and leave. But Allen’s plan falls apart when the cashier rings up his purchases and hollers loudly to a colleague: “Hey Ralph! How much is a copy of Orgasm?” His mortification grows when Ralph doesn’t catch the title the first time, prompting the cashier to shout the question even louder. “Orgasm! This man wants to buy a copy! How much is it?” This scene may lack the same comic pointedness for younger readers—for whom adolescence did not involve the minor humiliations associated with purchasing pornography in person—as it will for folks, particularly men, above a certain age. But nearly every male, and more than a few women, who went through puberty in the pre-Internet age will smile in memory of some variation of Allen’s humiliation. If you didn’t go to the magazine store yourself to purchase girly magazines yourself, you asked an older brother, cousin, or friend. Or maybe you went to a friend’s house or borrowed something from some kid at school. Pornography then, like alcohol today, was something teenagers wanted to get their hands on but could only obtain by facing another person and effectively confessing vice. While you could consume it in private, but you couldn’t obtain it in private. The Bananas portrayal of the embarrassing need to face a person to obtain porn seems quaintly anachronistic these days. The pornography consumer no longer has to face the judgmental old lady while nervously cramming Orgasm between Time and Newsweek at the corner store. Today, adolescents and adults alike simply click open their favored porn website. They can tab it somewhere between Gmail, Facebook, and SparkNotes on their browsers for easy switching purposes. Or if they fear detection, Google Chrome conveniently provides a helpful “Incognito Mode” that does not store browsing history. Teenagers have access to all of this material without ever setting foot outside their bedrooms. They have something one might call “privacy.” And so do we all. We have it not just—or even principally—with respect to erotic material, but with respect to all sorts of other content as well: medical information, politically sensitive publications and purchases, and secret communications. And we have it because of a series of technologies that are the subject of endless anxiety among commentators, scholars, journalists, and activists concerned about—ironically enough—protecting privacy in the digital age. Something is not right here. In this paper, we want to advance a simple thesis that will be far more controversial than it should be: the American and international debates over privacy keep score very badly and in a fashion gravely biased towards overstating the negative privacy impacts of new technologies relative to their privacy benefits. Many new technologies whose privacy impacts we fear as a society actually bring great privacy boons to users, as well as significant costs. Society tends to pocket these benefits without much thought, while carefully tallying the costs. The result is a ledger in which we worry obsessively about the possibility that users’ internet searches can be tracked, without considering the privacy benefits that accrue to users because of the underlying ability in the first instance to acquire sensitive material without facing another human, without asking permission, and without being judged by the people around us. While our public debate largely ignores these benefits, as we shall show, our behavior as consumers is often exquisitely attuned to the reality that the march of technological development is not—contrary to the assumption that so dominates the privacy literature—simply robbing us of our privacy in exchange for convenience. Rather, technologies often offer privacy with one hand while creating privacy risks with the other, and consumers choose whether or not to use these technologies based, in part, on whether they value more the privacy given or the privacy taken away. Countless teenagers—and adults, for that matter—now acquire their medical information, as well as their pornography, online because they would rather be tracked online by commercial vendors than be judged by the stern-faced old lady at a news stand. From Google searches to online shopping to Kindle readers, the privacy equation is seldom as simple as a trade of convenience for privacy. It is far more often a tradeoff among different types of privacy. How we balance the relative value of different forms of privacy is, we will argue, a function of how much we fear the potential audiences from whom we want to keep certain information secret. Privacy is a value that often discuss in the abstract but generally does not exist in the abstract. The person who deeply resents being tracked online for commercial purposes might quite reasonably weigh the privacy risks of seeking medical information on the web differently from, say, the pregnant teenager whose primary privacy concern is shielding her situation from her parents. This latter person may see the possibility of Google’s of Microsoft’s tracking her search as the most minor of concerns next to the ability search engines are providing her to find an abortion provider on her own. As we will show, the privacy that consumers value in practice is not always the privacy that activists devoted to privacy value on their behalf. We proceed in several steps. We first briefly survey the literature on the privacy implications of technology to demonstrate the dominance of the theme that privacy is eroding. We then then set forth the argument that the reality is more complicated than that, and that technologies may enhance privacy in some areas while eroding it in others. We then seek to illustrate this argument by highlighting certain commonplace technologies generally believed to be privacy threats but that actually key provide privacy benefits as well. We conclude with a call for better means of keeping score in the privacy debates and for making policy on the basis of a more holistic understanding of privacy impacts.