America needs more and better protections over personal data, says Lawrence Cappello of the University of Alabama


ONE OF the toughest questions of modern life is where to draw the bounds of privacy—and privacy law. Digital technologies make a virtue of sharing. At the same time, the ability of governments and companies to keep people’s activities under surveillance has never been greater. Slick artificial-intelligence algorithms depend on data, and creeping authoritarianism around the world means that the collection of vast quantities of data may be a recipe for disaster.

A historical perspective on privacy in America is provided by “None of Your Damn Business: Privacy in the United States from the Gilded Age to the Digital Age” (University of Chicago Press, 2019) by Lawrence Cappello, a professor of constitutional history at the University of Alabama. He notes that America was founded partly in rebellion against the privacy-violating British, so the debate over surveillance is as old as the country itself. The laws have always lagged behind the technology.

An interview with Lawrence Cappello

The Economist: What is privacy? Can we even define it well?

Lawrence Cappello: Privacy is a very slippery word. It’s incredibly hard to boil down into a nice tight compact sentence, although great minds have certainly tried. In the 1890s Justice Louis Brandeis called it “the right to be let alone”. In the 1960s the Columbia Law School professor Alan Westin said it was “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others.”

The best definition by far comes from legal scholar Daniel Solove, who calls it an “umbrella term” which, like “freedom” or “liberty” or “love”, can only be understood across a multitude of contexts. Westin’s definition isn’t perfect, but it is an excellent place to start. So if asked, I’d go with: privacy is (mostly) about controlling and limiting access to ourselves and our personal information. The desire for privacy is a fundamental aspect of the human condition. It is a fundamental part of what it means to be alive.

The Economist: Is the lack of privacy from government and corporate surveillance worse today than in the past?

Mr Cappello: Absolutely. The surveillance tools at their disposal are far more sophisticated than anything developed in the 20th century, both on a physical surveillance level (surveillance in real-time) and a “dataveillance” level (surveillance that picks-up and processes snippets of information after the fact). The extent to which one can be “known” today is unparalleled when compared to previous generations.

But it is important to recognise that the core impulses guiding corporate and government surveillance are nothing new. On one hand, this surveillance does serve positive ends that can’t be ignored. National security and corporate efficiency are, in principle at least, worthwhile pursuits. The trouble is that throughout our history, surveillance was frequently used to serve sinister ends. So now more than ever it is important that American courts take a robust view of the Fourth Amendment, and that corporate privacy practices be aggressively regulated. And I say that last part as a capitalist.

The Economist: America was born of privacy rights, so why does it lack robust privacy rules compared to Europe?

Mr Cappello: I believe in America. And it kills me that we are so behind on this issue. There are three main reasons. First, in the 20th century, when these laws were being written, privacy advocates tended to argue that privacy was an individual right while ignoring its larger societal value. This error let the forces that pushed against privacy to argue they were on the side of the “greater good,” while those defending it spoke of individual harms—a much weaker position.

Second, the key privacy debates in our history usually assumed an “all-or-nothing” character, which means they were framed incorrectly as a question of whether things like security and corporate efficiency were more important than privacy, instead of the better question of how privacy could be protected while simultaneously embracing those interests.

Third, and no surprise here, privacy protections hurt bottom-lines. Special interests often claim privacy regulations are burdensome to business owners and lawmakers often agree.

The Economist: Are there any legal reforms that would meaningfully protect privacy in the digital era?

Mr Cappello: For starters, the ability to control one’s own private data needs to be recognised as a fundamental human right. And while we’re at it, so too does the “right to be forgotten”—the ability to have information about yourself removed from internet databases after a period of time. Otherwise we’re all bound to end up prisoners of our recorded past.

Most American privacy law presently operates under something called a “patchwork” system: different kinds of data are protected in different ways. Medical data, financial data, consumer data; they all receive different kinds of protections. What we need instead is something that resembles the omnibus or “comprehensive” model used by the European Union. This approach is both stronger and more streamlined. It also may not be that far off. There are a few bills working their way through Congress at the moment.

The Economist: In our age of authoritarianism and AI, what fills you with dread that human dignity and rights may suffer—or fills you with confidence that these values will be preserved?

Mr Cappello: I’ll go with dread. I dread that Americans born in the 21st century will grow ignorant of the fact that they enjoy considerably less privacy than their parents and grandparents did at their age—that a certain instinct is being lost as the years march on. I dread that our national conversation about privacy will be hijacked by conspiracy-theorists who speak in zero-sum terms. Or by political operatives so caught up in red-team/blue-team squabbles that they’ll use the issue as cannon fire instead of approaching it with the sense of balance and nuance that it deserves.

More than any of that, however, I dread that our civilisation is growing numb. That as our expectations of privacy plummet, Americans will increasingly shrug their shoulders and mutter knowingly to each other that privacy is dead. Those people make it a lot harder for the rest of us.

But don’t get me wrong: lately I’ve been more hopeful than fearful. The marketplace finally seems to be recognising privacy as something that consumers are willing to pay for. Apple’s new iPhone ad campaign, for example, is centered entirely around privacy. The more privacy and the profit-motive entwine, the less reliant our society is on just legal remedies.

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