The Deciders, the Dividers, and the Advertisers

I just got home from the 2011 Robert L. Levine Lecture at Fordham given by Jeffrey Rosen and called “The Deciders: the future of privacy and free speech in the age of Facebook and Google”.  It was great – challenging, thought provoking, and engaging.  Unfortunately, the detailed notes that I took on my fancy new Android phone (I’m getting pretty quick with the Swype feature) were erased when I failed to save the file after the lecture, but I’ll do my best to recall the details as I respond to it now.

Mr. Rosen started out by describing a possible future in the year 2025 when there will be public cameras installed everywhere that we can access with our phones for a live video feed of town squares, times squares, beaches, etc.  He then mused about how this might fare under Constitutional challenges to our right to privacy.  Obviously we don’t have privacy in a public area per-se, but might the Fourth Amendment be violated if the government were to use this public information in police work?  Would this violate our reasonable expectations of privacy?   Should we be worried about this new vulnerability?

My response would be that our definition of “reasonable expectation” change with time, so as our culture adjusts to the idea that our lives are increasingly public and more information is accessible, our expectations will adjust and we will consider it increasingly reasonable and acceptable for these channels to be accessed.  Mr. Rosen may have a different normative view as to whether this is good or bad than I do, and certainly his view AND my view would differ from the views of today’s teens, tween, and toddlers, and that was what struck me the most throughout the lecture.  Much of the crowd was a bit older, and seemed horrified at the changes taking place through social networking that I take for granted as a part of my reality.  I can only imagine how automatic these trade-offs must seem to the generation growing up today.

A strong emphasis was put on the idea that only a motivated population can create real change, as illustrated by the “naked scanner” example in our nation’s airports.  A public outcry led to a reconsideration of the privacy costs of these scanners, and now the TSA is trying to shift to the “blob sensors” that are equally effective but much less invasive of personal privacy.  Mr. Rosen’s point was that when the public is outraged and vocal, change happens.  When people are docile, business as usual continues.  There are often reasonable, middle-of-the-road solutions that already exist technologically, it is just a matter of motivating government and industry to adopt the more balanced solution instead of the one that suits their own needs most efficiently.

The truth is, though, that cultural norms are changing, and we need to be realistic about how they are changing and why.  More than ever, our population is aware of the trade-offs that come with digital life, and almost certainly would be unwilling to trade the benefits of life online for stricter privacy protections.  Imagine asking a fifteen-year-old to give up Facebook, Google, Amazon, iTunes and Twitter in exchange for perfect privacy protection.  You’d be laughed out of the room!  And it isn’t just because this misguided teen is ignorant of the dangers of life online (though that may be true), it is because whatever the costs and dangers of online privacy tradeoffs, they can’t possibly offset the enormous value of free online services.  So while there was a public outcry about the TSA nude scans, there won’t be a public outcry about Facebook or Google using our data for ads.  Gmail and Facebook users, myself included, know that they use our data for ads and we are generally fine with that.  Was I shocked to learn that I may not have exclusive privacy rights over my files stored on the Gmail cloud?  Not by a longshot – it’s a free, ad-driven service, and it is amazing.  Scan away, Google, just keep the apps coming.

Is it frightening in principle to hear cautionary tales about faceless corporations buying and selling my “consumer profile” in order target ads to me?  Sure.  But is it actually upsetting when Amazon offers an unsolicited suggestion for a book that I’m interested in reading?  Nope.  So what that tells me is that while much of this sounds disturbing on paper, the real world implementation is actually pretty familiar and benign.  This is not to say that there isn’t the possibility of abuse in the future, but I think that a healthy sense of caution is enough to keep me comfortable.

Of course, it is much easier for me to relax knowing that people like Mr. Rosen are out there advising organizations like EPIC and keeping companies and governments honest about how they use the resources to monitor the population.  And though the horror story he told about the teacher whose career was ruined by one irresponsible MySpace photo was indeed disturbing, services like Reputation Defender and X-Pire are providing market-based solutions to these problems as they arise.  Perhaps this just illustrates his point that unless we are all personally affected by these problems the population will not demand change, but the flip side of that equation is that if most people are not affected by the problem in a serious way, perhaps change is not as urgent as he insinuated.

So in the end, I felt that the moral of the story was that the world is changing, and we need to be cautious about leaping before we look.  And while that is true, it also isn’t a great revelation to any of us who use these sites with regularity, or have thought about what it means to carry a GPS-enabled phone with us at all times.  These concerns are a given – a part of the DNA of our lives that is now built into our thought processes.  There is no changing this and no going back to how things were.  And certainly it’s worth considering the possible best-case futures and worst-case scenarios to inform how we architect our digital future, but there’s no sense being alarmed by the fact that the future is coming.

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About privacyandpiracy

Fordham Law student, Student Association for Law and Entrepreneurship co-founder, I.P. Law Journal staffer, and Center on Law & Information Policy fellow. Look out for my upcoming article on copyright and fair use in the Twittersphere in Fordham's Intellectual Property Law Journal, and let me know if you need a legal intern. Twitter: https://twitter.com/#!/MrAdamN
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