One of the chief claims in Helen Nissenbaum’s book, Privacy in Context, is that there is a dimension of privacy that is not captured by analyses such as Warren and Brandeis’s: privacy in public. I can be out in public and yet the information about who I am and where I am going is effectively private. It’s privacy by anonymity.See Josh O’s observation. If you follow me or plant a tracking device on me, then this privacy is lost.
There is an analogy with the internet. When we use internet services, we are effectively leaving our private spaces and entering the spaces controlled by companies. In that way, using the internet is like being out in public. Where things are going wrong, she thinks, is that we think of ourselves as enjoying the privacy of anonymity. But we’re actually being tracked and followed.
That is why people worry about the loss of privacy on the internet. It is also why the solutions proposed under the heading of transparency and consent fail to address the problem. We’re being tracked but don’t think of it that way. Various efforts to get us to consent or appreciate what is going on all fail: we don’t read the small print, don’t think it through, or need to use the services enough to sacrifice our privacy.
Part of the trouble with talking about privacy and the internet lies on the level of description. In what sense are we losing privacy? It’s not like the internet snoops in your house, after all. In my opinion, Nissenbaum’s analysis is insightful: I think it does a good job of isolating a kind of privacy that we’re concerned about.
At the same time, I think it’s fair to say that most of us in the room were willing to lose some of this privacy. As Kenny put it, we give up some privacy but we get services that we value more in return. I think that’s right. We are willing to let Google’s computers read our emails in exchange for free email and we’re willing to let the phone company track where we are in exchange for having mobile phones.
The things that worried us lay in the future. Using our information to sell advertisements is one thing, but it would be another thing if the information went to employers, insurance companies, or the government.
Nissenbaum’s proposal does not address all of those concerns. It is addressed at the more modest goal of thinking about how to give people control over their information. I think she’s right to say that the transparency and choice model, where you check a box saying you have read the terms and conditions, does not work. Her proposal is to make the rules governing private information online using analogies with the rules governing private information out in the real world. The idea is that people would understand that kind of system better.