Modern Privacy Contextualized

"It is a power that places the liberty of every man in the hands of every petty officer."
-James Otis, February 1761

Otis' words were originally spoken as an outcry against British Writs of Assistance, which granted officials the ability to search for smuggled goods in any home that they deemed suspicious. Yet what strikes me most about his statements is not the simplicity with which he expresses his idea, but its broad applicability to privacy issues today.

It seems that he could just as easily be talking about the pervasive surveillance that we have come to expect from the world's governments. It seems to me that, in many respects, the technologies we now face are new, but the issues themselves are part of a long-running narrative.

Otis' words demonstrated the need for the 4th Amendment, which has since helped decide many of the Supreme Court's most intractable court cases: Olmstead vs. United States, Katz vs. United States, and, more recently, United States vs. Jones. These cases are data points in a broad and intricate history of privacy history, a narrative that we continue to see played out today.

The 4th Amendment was initially included in the Bill of Rights, which was formally approved on September 25, 1789, yet it would be another hundred years before Warren and Brandeis would finally publish "The Right to Privacy," the first article to formally recognize a right to privacy. Warren and Brandeis' work was nothing short of groundbreaking. It established an entire world of privacy law that had not existed prior. As Benjamin Bratman explains, Warren and Brandeis' work served as a foundation for the Griswold vs. Connecticut decision, so much so that the dissenting judge claimed its influence had extended so far as to be perceived as part of the constitution. After all, no section of the bill of rights explicitly defines a "right to privacy."

As time passed, the complexity of the privacy issues with which the government dealt only increased. The primary issue addressed in "The Right to Privacy," the excessive use of photography by journalists, could hardly compare to wiretapping (Olmstead vs. United States), contraception and marital privacy (Griswold vs. Connecticut), or GPS tracking (United States vs. Jones). Somehow, though, the tension between privacy and progress remained constant, even as new frameworks evolved to the changing world.

One such framework, the Fair Information Practice Principles (FIPPs), was incorporated into the Privacy Act of 1974 and provided the basis for data management policies throughout the US government. Such legislation should have established clear guidelines for privacy, yet the reality is not so simple.

New legislation during the early 21st century gave government the power to conduct nearly limitless surveillance on international and national citizens, thus creating a new challenge for privacy advocates. Which brings us to today. The modern conception of privacy (though hard to truly define), is the natural result of hundreds of years spent in a painstaking battle of trying to balance progress and civil liberties.

It is clear that, especially now, we don't have the answers. The Snowden disclosures demonstrated that there is still much to be done, but there is also hope. The technologies that have grown large enough to further threaten privacy have simultaneously enabled better protections. Audit logging, machine learning, differential privacy, pseudonymization, and other techniques have the potential to collectively influence systems to better protect civil liberties.

Otis' words still ring true today. If we place the liberty of all men in the hands of the right people, perhaps we can do some good while still having a country worth fighting for.

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