A History of Privacy

This New Yorker article traces the history of privacy from the mid 1800s to today:

As a matter of historical analysis, the relationship between secrecy and privacy can be stated in an axiom: the defense of privacy follows, and never precedes, the emergence of new technologies for the exposure of secrets. In other words, the case for privacy always comes too late. The horse is out of the barn. The post office has opened your mail. Your photograph is on Facebook. Google already knows that, notwithstanding your demographic, you hate kale.

Posted on November 30, 2015 at 12:47 PM • 24 Comments

Comments

DarthNovember 30, 2015 1:15 PM

>>“We have not joined any program that would give the U.S. government—or any other government—direct access to our servers,” Larry Page and David Drummond, Google’s C.E.O. and chief legal officer, said. “Facebook is not and has never been part of any program to give the U.S. or any other government direct access to our servers,” Mark Zuckerberg, Facebook’s C.E.O., insisted. Congress is sure to launch an investigation. (Exactly how Internet companies have complied with requests from intelligence agencies has not yet fully come out.)

Duh - backups! Or packet sniffers. They don't need direct access to the servers. Talk about plausible denial.

AlanSNovember 30, 2015 2:26 PM

From the New Yorker:

Brandeis’s dissent in  Olmstead is, in effect, a continuation of the argument that he had begun in 1890.

For an alternative and much more interesting take take on Brandeis's dissent in Olmstead and its relationship to the "The Right to Privacy" see: Neil M. Richards The Puzzle of Brandeis, Privacy, and Speech:

My basic claim is that Brandeis came to largely abandon the tort theory of privacy he expounded in “The Right to Privacy.” As a young lawyer, Brandeis conceived of privacy as a tort action protecting emotional injury from newspaper stories that revealed private facts. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty. But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive.

rgaffNovember 30, 2015 3:20 PM

Examples about dick pics and kale trivialize it. It's more like:

Your local police station knows EXACTLY which 3 felonies EVERY CITIZEN in the whole town is committing each and every day (yes, everyone unknowingly commits that many). They don't actually empty out the whole town to fill the prisons, but they most certainly can haul ANYONE off to prison any time they jolly well please, any time anyone crosses them! This is the cruelest dictatorship the world has ever seen just waiting to happen. But again, nobody sees this until it's too late either. It's human nature to disbelieve that worse-than-Hitler is in the making in your own backyard, and you are personally responsible for gruesome future atrocities by sitting around idly letting it happen.

I think that's a more accurate description of the severity of the situation.

de la BoetieNovember 30, 2015 3:27 PM

This is a dangerous argument, that we've seen this all before, that we can analogise now against history.

In all historical cases, there was an economic/practical limit on the scale of interception and analysis that took place.

Now there is not, there are no practical limits to the level of collection, data mining and automated analysis. It's never been done before in history, and that's what makes this period especially dangerous (that, and the concomitant concentration of power and contempt for the rule of law).

The danger to ordinary citizens is not only loss of privacy, it's false accusations, arrests and imprisonment based on dodgy data and the asymmetrical ability to defend yourself. No justice, no rule of law, and an encouragement of what are essentially rent-seekers on the body politic.

From an economic point of view, since it's obvious that mass surveillance is not about terrorism but about economic espionage, that has rather direct and ultimately disastrous consequences for the integrity of markets that our economic systems are "supposed" to be based on.

BoppingAroundNovember 30, 2015 4:08 PM

I have a vague conjecture that in each such situation there probably were
people who had foreseen the consequences and warned about them, only to be
dismissed on the basis of whatever — possibly bullshit — reason of the day.

I cannot access the article for unknown reasons, so excuse me if anything I've
written is actually mentioned in the article.

Faber on the CharlesNovember 30, 2015 4:22 PM

This is boilerplate statist propaganda: distort your rights into a matter for antiquarian noodling or airy-fairy philosophy.

Only in America could you have a pretend-scholarly article on privacy that never mentions the customary international law passed by acclamation in 1948, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks," and the binding conventional international law that entered into force in 1976, now in its third decade as US supreme law, "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

So Lepore's axiom is bullshit. The universal consensus on the right to privacy predates NSA's efforts to destroy it. The world has been defending privacy in law for more than 60 years, and the only thing that makes it possible to deny that is the US government's furious efforts to suppress public knowledge of the law. Sad thing is, it's very possible that a Harvard historian never heard of any of this. Ivy League indoctrination buries it all.

Slime Mold with MustardNovember 30, 2015 4:38 PM

When we think of the modern "mystery" of state, (as used in the article) we tend to think only of the Intelligence Community, the Pentagon, and the Military - Industrial Complex. Allow me to assure the readership that nearly every function of the USG; the DOJ, IRS, State, EPA, DHHS, VA, USDA, FDA, et al, have become infected. State and local governments are little better.

Grew_up_onlineNovember 30, 2015 5:13 PM

@AlanS

Since the Snowden leaks, I've found myself without any feeling of intellectual privacy. I've lost faith in most Internet infrastructure and I find myself trying to live a life with less electronics and learning less stuff online.

I had the hacker mentality. It was insatiable curiosity. After the Snowden leaks, my curiosity was replaced with fear. Fear I've felt almost every day for the past several years. At this point, I'm comfortable not learning more programming. Not tinkering. Because the alternative causes me pain now.

I also used to shortcut the intake of new knowledge in the context of how I could Google the topic to find out more info. It has taken me years to stop thinking like that. Thankfully I no longer have panic attacks as a result.

The world is a far more dull and depressing place than it used to be.

MmmNovember 30, 2015 5:57 PM

I've put the article on my reading list but my initial observation is that the article was published June 24, 2013 so it was right at the very beginning of the Snowden disclosures.

Dirk PraetNovember 30, 2015 7:38 PM

In other words, the case for privacy always comes too late.

I don't agree. The Bill of Rights, the US Constitution and its amendments, the UDHR, the EU DPD etc. etc. are very clear on quite a number of privacy related issues and rights. The main problem is that both governments and corporations willfully choose to ignore them or have their lawyers come up with new and innovative interpretations to work around them, the former for reasons of "national security", the latter to make more money.

Arguably, many new technologies require existing laws and regulations to be amended or refined, but in the end, that's not the primary issue here.

AlanSNovember 30, 2015 7:41 PM

@Grew Up Online

We have foreboding but most are willing participants who quickly put aside any disquiet they feel. Bernard Harcourt writes that Orwell was mostly right but points out that he was wrong about one important thing. Surveillance doesn't have to be disciplinary or at least it doesn't have to be purely disciplinary. It can operate very efficiently through desire. Foucault, who had moved beyond consideration of disciplinary techniques by the mid 1970s, to consideration of the government of populations, also points this out (see STP, chapter 3).

AlanSNovember 30, 2015 8:25 PM

@Dirk Praet

I agree with you about the axiom. The author is a historian but I don't think this is her area of expertise. There are much better and more reliable authors to go to for "a history of privacy".

rgaffNovember 30, 2015 11:54 PM

@Dirk Praet

"for reasons of 'national security'"

The problem is that "national security" really means "securing the structure keeping us in power".... and NOT "security of the general populace from terrorism"

This means it's not about terrorism, it's about power. Therefore they will even promote and use terrorism itself to further their real goals, not quash it. They themselves become terrorists of a more insidious kind, purposefully trying to keep the populace in a mental state of terror, so that they can keep and increase their own power.

Promoting fear and terror through the manipulation of the news and other media is just as bad of a result as bombs going off. In either case the people are terrorized. Just one is perfectly legal and common in this country, whereas bombs don't actually go off that often.

WmDecember 1, 2015 8:34 AM

Once again, we must be reminded that everyone today, especially governments, is corrupted. You must secure yourself. Otherwise, you will remain insecure. I have a FaceBook account, but only to identify that it belongs to me by containing a signed message informing such with my public keyID. Today, most people are too stuck on themselves to keep from posting everything they like and do on the likes of FaceBook. If the cops and/or a prosecutor comes after you for anything, they will attempt to use your FaceBook and Twitter account information against you.

I have a very basic cell phone, but only turn it on when I need to call someone. If I ever need to be continuously available for contacting, I'll go to a nation wide pager also.

For emails, I use AAMDirect (wjlanders.users.sourceforge.net) and force anyone who wishes to correspond with me to use it also.

Do not post on forums that do not secure you entries with https. This might not be of much help if the post is not delayed a bit however. TheBlaze is one of these sites that sometimes expresses concerns about personal privacy, yet they don't use a secure website for posting. Dating sites will usually be secured with https, but as soon as you go to the contact forums, they become unsecured http.

Most of all, NEVER allow yourself to be interrogated. Immediately say that you have been advised by a lawyer to never make statements to the authorities. This is within reason, of course. A local cop knocked on my door last year and asked if Terri was here. I answered that no one by that name lives here. He then asked if Terri had ever lived here. I said no, that I have always lived here alone. He thanked me and said that they had a report from another department that she might live at my address. Any further questioning would have been met with the above lawyer advise. Keep in mind that a police technique is to sometimes approach someone as if they are interested in a fake topic for serendipitous purposes.

Grew Up OnlineDecember 1, 2015 8:47 AM

@AlanS

It doesn't have to be purely disciplinary for me to be repulsed by the very notion. Trying to influence me, my friends, my family, and the various cultures I participate in are all repulsive concepts. I know it's done anyway by marketers and special interest groups, but their effectiveness typically only went so far. Ubiquitous surveillance and information asymmetry in favor of entrenched power gives them an unprecedented degree of influence over large populaces.

Furthermore, it's not clear to me where the separation of Law Enforcement and National Security is. It's not clear to me what information law enforcement, prosecutors, and attorneys actually get. Enough blood of the curious is on the hands of DoJ prosecutors like Stephen Heymann. Why should I risk my life when there's parasites like him ready and waiting to exploit any opportunity to advance his career?

I'm not even talking about breaking the law. To parasites like Stephen Heymann, the *appearance* of breaking the law is good enough. And an awful lot of completely innocent activity looks like law-breaking to the eyes of the willfully ignorant.

SofakinbdDecember 1, 2015 4:36 PM

Whenever this topic comes up I always remember this fascinating read posted by Bruce:
https://www.schneier.com/blog/archives/2007/03/privacy_law_and.html

Interesting article: Neil M. Richards & Daniel J. Solove, "Privacy's Other Path: Recovering the Law of Confidentiality," 96 Georgetown Law Journal, 2007.

Abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis "invented" the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's "inviolate personality." English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

CuriousDecember 2, 2015 3:00 AM

I haven't yet read the article, but from the quoted part in Bruce's post, I am inclined to say the following:

The general notion of certain things not having being subject to privacy considerations, something that seem to me here to be a core argument, would be imo intellectually fraudulent, because of the is-ought problem in philosophy.

The simple point of mine is that just because something is perceived like this-or-that shouldn't mean it ought to be that way. Then in turn, I'd have to say that the notion of there being a "relationship between secrecy and privacy" is nonsensical because it is imo counter factual. At one point, there is a claim to be a 'relationship',if only conceptual as some kind of rhetorical ploy perhaps, however, it is a factual statement that the author is trying to come to terms with things gone past, so to me it seems obvious that the author cannot claim to know if there ever was a relationship (if only conceptual) between events in the past, and certainly not this far back in time.

Presumably, the articled from which the quote is taken from is some kind of creative opinion piece, too creative imo, because of being subject to the problem of being suggestive rather than being argumentative.

AnonDecember 3, 2015 9:20 PM

@Dirk

The US Constitution and Bill of Rights is anything but clear. The 4th amendment doesn't protect your privacy in general, but only persons, papers, houses, and effects. You could certainly make a reasonable argument that "papers" taken literally would exclude all electronic communications and a request to a ISP wouldn't be a search of houses or persons. Effects, generally meant movable physical property. A demand for your e-mails from an ISP could reasonably be interpreted as a search of the ISP servers("effects"), but only if you first apply constitutional rights to corporations and then, only your ISP, not you has the standing to challenge the search. Courts have of course interpreted this more broadly, perhaps keeping in the broadest spirit of the 4th amendment, but the idea that there's crystal clear language from the 1700s on how to treat e-mail metadata is more than a little ridiculous. If constitutional amendments weren't so difficult in the US, the 4th amendment would be updated to reflect modern technology.

More Human Than HumanDecember 4, 2015 12:19 AM

I do not know, frankly, I hate the title, "A History of Privacy". Especially in context with the near time, Western dating. I have stated as much in mcsimilar post, a few years ago.

I dislike this because it implies privacy is an invention, and that, one of late, and even by this very small but so influential West.

If that is so, then it might be dismissed as merely a fad, a fancy. Some relic soon to be gone.

First written story of privacy invasion on human record? Adam and Eve had sex, and suddenly realized what being naked meant. They were ashamed.

God gave them clothes, removing their shame.

They were cursed. Eve would have pain in pregnancy. They would have kids, which would mean "the earth would bring up thorns". They went from G rated living to the greatest conspiracy of all. Well beyond Santa Claus and the Easter Bunny. R rated realities of sex knowing adult human beings.

Ever since, that greatest conspiracy has continued.

We grow up, and we learn what being an adult is really about.

More practically:

Every human being is layered. Sure, we are naked underneath our clothes. But, psychologically and emotionally, we have layers, too. We have public facing clothes. We have layers of intimacy. Internally, not just externally.

Will there be any such layers in the future?

I remember one book which came out early on about the social media, 'share all' culture: it had a title like "Going Naked".

What we are witnessing today, is increasingly, a move away from that old
way.

From a world of isolation, lacking intimacy, to a world where intimacy is endemic. It can be scary. So, we have horror films of singularities: of corporate beings: many, but one.

One from many, is the phrase? Or many who is one?

You have robots from the future skynet, or Borg. You have Cybermen and Daleks.

Or the collapse of corrupt systems, where 'what is whispered in secret is shouted from the rooftops", "what is hidden is meant to be revealed, both good and bad". True justice represented as absolute true knowledge of each person to their very soul.

I think the real front of that is where you have one group who wants to control that, while doing and saying very bad things in secret while doing so. They do and say very bad things in secret, while trying to monopolize everyone else's secrets.

Blackmail and control, by "total information awareness".

Will society end up, again, totalitarian, tyranny? The confessional booth made global?

Where one elite, small group has absolute secrecy, and everyone else has none?

Will pictures of your fat stomach be plastered on billboards, and your "O face" be seen by all your friends and coworkers?

Or... is there some happy, perfect medium there? Where people no longer treat each other as "us versus them" as "stranger" versus "brother and sister"? As family and kin, versus "outsider"?

I think, the later.

The later is inevitable.

We have bred dogs to be meek, so must humans be so.

Surely human beings can finally surpass the requirements we hold to dogs, some day. Maybe not so far in the future?

BoppingAroundDecember 4, 2015 9:18 AM

> If that is so, then it might be dismissed as merely a fad, a fancy. Some relic soon to be
> gone.

Cui prodest?

More Human Than HumanDecember 4, 2015 1:49 PM

@BoppingAround

'Who is it's gain to take such a stance as making out privacy to be an illusionary and recent invention'.

Just to be clear: I am certainly not suggesting that Schneier nor even the New Yorker is a guilty party here. :-)

Language does matter, and underlining influences which are negative can seep in.

Though, considering everything, regardless of controversy is important for people to do. In fact, due to our innate human weaknesses of perception, if you believe anything, strongly; you are very well served by looking and listening long and hard to your own, particular, 'devil on your shoulder'. Because that 'devil', 'devil's advocate', very well might be the actual angel you are seeing quite incorrectly.

This said, I do think that it can be well said: privacy is core to 'who we are as humans', and certainly no mere invention of recent times - or ever - it is a basic function of our being. Even ironically so, as what is truly core to our being, but that very most protected layer?

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