If You Are Totally Shameless You Have Nothing To Be Ashamed Of

Last week in privacy law we discussed Daniel J. Solove’s excellent article “Why Privacy Matters Even If You Have ‘Nothing to Hide.'” Solove addresses the tension between government security-related policies and practices and privacy rights, a tension many resolve by saying “I don’t care if the government listens to my calls/reads my email/attaches a GPS to my car because I have done nothing wrong, have nothing to be ashamed of, and therefor have nothing to hide.” Such a position equates privacy with secrecy, and nothing more. Solove’s point is that privacy

is too complex a concept to be reduced to a singular essence. It is a plurality of different things that do not share any one element but nevertheless bear a resemblance to one another. For example, privacy can be invaded by the disclosure of your deepest secrets. It might also be invaded if you’re watched by a peeping Tom, even if no secrets are ever revealed. With the disclosure of secrets, the harm is that your concealed information is spread to others. With the peeping Tom, the harm is that you’re being watched. You’d probably find that creepy regardless of whether the peeper finds out anything sensitive or discloses any information to others.

Solove goes on to discuss other privacy-related harms that can occur from government information-gathering programs and concludes that we should conceive of privacy as concept that embraces many interests, not secrecy alone.

The article by Cindy Gallop titled “Should we do away with privacy?” presents the “I’ve got nothing to hide perspective” so extremely that on first reading I thought it a parody:

If you identify exactly who you are and what you stand for, what you believe in, what you value, and if you then only ever behave, act and communicate in a way that is true to you, then you never have to worry about where anybody comes across you or what you’re found doing.  By definition you are never caught doing anything to be ashamed of.

What Gallop fails to acknowledge is that humans have an innate right to choose whether, how, and not to share personal information with others. (Gallop is an advertising consultant. Quelle surprise.) After suggesting how to implement this concept Gallop says

Now in a world of transparency, I am essentially unblackmail-able. I’m unblackmail-able because I have a secondary venture called Make Love Not Porn, and I launched it at the TED conference [organisation that promotes ideas] in 2009.

Once you have stood up on the stage at TED and announced that you have sex with younger men, no-one can ever shame or embarrass you ever again. So I live my life completely in the open, and that is an enormously stress free and relaxing way to be.

And by the way I realise that I am quite an extreme example of this, but the principles are the same for everybody.

Maybe this is a parody after all.

Unspoken Agendas

Recently the WSJ conducted a panel discussion about online privacy. Panelist Christopher Soghoian’s perspective on Facebook resonates for me:

Although consumers knowingly share information via Facebook, the privacy issues associated with that company are not related to the way consumers use it, but rather the other things the company does. These include the tricks the company has pulled to expose users’ private data to third-party app developers, the changing privacy defaults for profile data, as well as Facebook’s covert surveillance of your browsing activities on non-Facebook websites, as long as a “Like” button is present (even if you don’t click on it).

The dirty secret of the Web is that the “free” content and services that consumers enjoy come with a hidden price: their own private data. Many of the major online advertising companies are not interested in the data that we knowingly and willingly share. Instead, these parasitic firms covertly track our web-browsing activities, search behavior and geolocation information. Once collected, this mountain of data is analyzed to build digital dossiers on millions of consumers, in some cases identifying us by name, gender, age as well as the medical conditions and political issues we have researched online.

Although we now regularly trade our most private information for access to social-networking sites and free content, the terms of this exchange were never clearly communicated to consumers.

(emphasis mine)

No One Cares But DoubleClick

In his CNN Tech article “With ‘real-time’ apps, Facebook is always watching” John D. Sutter explains the effects of real-time apps:

In the old world of Facebook, I would have to click that I “liked” a song for it to show up on my Facebook profile page. That’s something you have to think about: “OK, I really like this song, and I really want all of my friends to know that I’m listening to it right now.” Now, sharing is both passive and automatic. It’s a choice you make in advance — one time — and never again.

And so it goes with all kinds of the new “real-time” apps.

Since I’ve logged in to Yahoo! News with Facebook, every time I read an article on that site, it goes to my Timeline.

The same is true for Hulu and TV shows.

And for the Internet game “Words with Friends.” When I play a Scrabble-style word in that game, it will show up on Facebook, along with an image of the current playing board.

Which raises an obvious question: who could possibly want to receive such a constant stream of mundane information about one’s friends, or especially about one’s “friends?” One obvious answer is “no one with a life of their own.”  My spouse does not want to follow every Scrabble hand I play with my son. I do not want to know every song she plays while hanging out in the kitchen. I see a group of friends just about every day for coffee, we talk about everything that captures our brief attention spans, yet being notified of every video they watched online is TMI.  We filter our experiences, we decide which of our friends might be interested in which stories, we curate.  This word is five minutes from overuse but its prevalence evidences our response to the problem of too much information.

To the question “who could possibly want to receive such a constant stream of mundane information” the other obvious, more relevant, and more truthful answer is “anyone who can use that information stream to sell me stuff.” One’s virtual and actual friends will tune it out as the background data buzz that surrounds every Facebook user like a thick cloud of noisy midges. Advertisers will collect, collate, examine, and evaluate each vibrating data point to construct interest and activity profiles. Then they will market to the midges.

This is no great insight. Sutter’s article makes the same point. What moves me is the breathtaking transparency of Facebook’s game. Facebook’s interest in serving its users is overwhelmed by its interest in users as data generators. Real-time apps provide a means to calibrate with unparalleled precision the relationship between user data and vendors of stuff. Facebooko ergo sum:  I Facebook therefore I am–a consumer first, last, and always.

EU Rules ISP Not Required to Monitor for Copyright Enforcement

While Congress considers passing legislation that imposes duties on ISP’s to monitor for and take affirmative steps to counter copyright infringement the European Court of Justice–the EU’s high court–held this week “that Internet service providers could not be required to monitor their customers’ online activity to filter out the illegal sharing of music and other copyrighted material.”

Not At All a Food Product

This article from Scientific American explains the chemical relationship between peppers and pepper spray and their relative positions on the Scoville scale. Green bell peppers are 0 Scoville units; Tabasco Sauce is 2,500-5,000 Scoville units;  scotch bonnet and habenaro chile peppers are 100,000-350,000 Scoville units; pepper spray is 2,000,000-5,300,000 Scoville units.

Lessig on Campaign Finance

Students in all of my fall courses–Intro to Law, Internet Law, and Privacy Law–have expressed alarm about SOPA. They ask where it came from, who is pushing for it, why it has gotten so much congressional support. The long answer involves copyright owners, actors, musicians, concern over the effect of copyright piracy on U.S. jobs, consumer tolerance or support of file-sharing, the public debate about Free Culture versus the legal protections of copyright law. The short answer involves elections and money, specifically the corrosive effect of campaign contributions on the political process–which drew Larry Lessig’s attention as he pursued his post-Free Culture intellectual path.

Carrots and Sticks

My posting is tardy but the New York Times article titled “The Smokers’ Surcharge” appeared a day after we discussed the legality of an employer terminating all employees who smoked cigarettes. The Times article focuses on insurance-premium surcharges, not termination, noting that “[m]ore and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.” The law encourages financial incentives to employee participation in wellness programs but some employers use other methods to modify employee behavior:

Current regulations allow companies to require workers who fail to meet specific standards to pay up to 20 percent of their insurance costs. The federal health care law raises that amount to 30 percent in 2014 and, potentially, to as much as half the cost of a policy.

When Wal-Mart Stores, the nation’s largest employer, recently sought the higher payments from some smokers, its decision was considered unusual, according to benefits experts. The amount, reaching $2,000 more than for nonsmokers, was much higher than surcharges of a few hundred dollars a year imposed by other employers on their smoking workers.

And the only way for Wal-Mart employees to avoid the surcharges was to attest that their doctor said it would be medically inadvisable or impossible to quit smoking. Other employers accept enrollment in tobacco cessation programs as an automatic waiver for surcharges.

“This is another example of where it’s not trying to create healthier options for people,” said Dan Schlademan, director of Making Change at Walmart, a union-backed campaign that is sharply critical of the company’s benefits. “It looks a lot more like cost-shifting.”

My Blogging Tips

Recently I was asked if I had pointers about starting a blog. Here’s what I said:

  • Have fun with it. If it’s not fun it becomes a chore and you’ll stop writing. (I wrote this point last and then realized it’s the most important thing I have to say.)
  • Should you buy a domain name and create your own site or use free a platform like Google Blogger or WordPress? I did the former. It involves more work and expense (not a lot–BlueHost, my blog’s host, is now $5.95/month) but gives you greater control. I (usually) enjoy learning the technical aspects of creating and running my sites, but not always. Blogging-specific hosts make life much easier. WordPress is the premier blogging software, which you can use without having WordPress host your blog.
  • Set realistic goals for how often you’ll post. Beginner’s enthusiasm can generate a flurry of initial posts but at some point it will fade, you’ll not post for three days in a row, and you may feel pressure to post something–anything–which can interfere with posting something good. My goal this year is 20 posts a month. If I meet that goal it will be the largest number of posts I’ve made in one calendar year. I kept the pace through August, fell behind when school began, and have started to pick it up again over the past few days. The important thing is that I only make myself a little crazy if I go 10 days without posting.
  • Understand why you are writing the blog. I created the blog because I like to write short pieces about ideas and issues that capture my attention, because writing about legal topics helps me refine my thinking, because I want to reveal how I think about these topics to students, and because there’s a never-ending conversation going on in my brain.
  • Define your blog’s focus. Will you post only about a few specific topics or will you also post about personal things–a book you enjoyed, a place you visited, whatever? How much will you reveal about yourself? It takes time to decide on a focus and settle into a voice. I post mostly about law-related topics with some personal stuff thrown in to give the blog more personality and make it more fun to write. I decided early that I would not post about really personal topics because there’s only so much of myself I’m willing to reveal to my general student readership. If I intended the blog for friends or peers its content would change dramatically. Should you ever notice that I’m posting about truly personal subjects it will be a sign either that I’m nearing the end of my teaching career or that for some other external reason I no longer care about my privacy.