Digital Rights Activist Contributes Eloquent Essay Perfectly Encapsulating Today’s Struggle for Privacy

Posted on June 21, 2019

One of the perennial challenges that digital rights-conscious civil liberties defenders face is the difficulty in expressing why digital technology presents such a unique and insidious threat to privacy. The ramifications of the erosion of privacy are truly palpable, especially for the most vulnerable communities in the US, but the full measure of consequences that stem from constant collection and mining of our personal data have yet to be fully felt. To avoid such a fate, civil libertarians must act before unblinking monitoring of all citizens’ online activity is an accomplished fact, but as it is not yet accomplished, they cannot readily fathom its effects. An incisive illustration of what is at stake is, therefore, crucial.

Technologist and digital rights activist Maciej Cegłowski gave us just such an explanation in an essay he published on his blog last week. Along with describing the perils of passively allowing our privacy to be worn away, he coins a term that captures the default, privacy-respecting state that the Framers envisioned in ratifying the Fourth Amendment: “ambient privacy.” It refers to the expectation citizens rightly have that their conversations, behaviors, and habits will not be watched and recorded as a rule, and that if they are, citizens will be explicitly warned and asked to consent beforehand (or face compelling and properly authorized legal grounding, such as a warrant). This is an extremely useful term for digital rights campaigners to employ when referencing the reasonable, and historically normative, mode that privacy should take in society.

Cegłowski goes further by linking the imperative of preserving ambient privacy broadly with maintaining the integrity of privacy generally, in a substantive capacity. He does so by deftly delineating how bulk surveillance—whether by governments or, in particular, private companies—fundamentally outflanks the US constitution’s particularized protection of privacy.

Ambient privacy is not a property of people, or of their data, but of the world around us. Just like you can’t drop out of the oil economy by refusing to drive a car, you can’t opt out of the surveillance economy by forswearing technology (and for many people, that choice is not an option). While there may be worthy reasons to take your life off the grid, the infrastructure will go up around you whether you use it or not.

Because our laws frame privacy as an individual right, we don’t have a mechanism for deciding whether we want to live in a surveillance society. Congress has remained silent on the matter, with both parties content to watch Silicon Valley make up its own rules. The large tech companies point to our willing use of their services as proof that people don’t really care about their privacy. But this is like arguing that inmates are happy to be in jail because they use the prison library. Confronted with the reality of a monitored world, people make the rational decision to make the best of it.

That is not consent.

Cegłowski also masterfully underscores the need to mount a collective, society-wide defense of privacy through regulation by likening the degradation of digital privacy with environmental degradation, and prescribing solutions of a similar regulatory scope.

In the span of a little more than a century, we went from treating nature as an inexhaustible resource, to defending it piecemeal, to our current recognition that human activity poses an ecological threat to the planet.

While people argue over the balance to strike between environmental preservation and economic activity, no one now denies that this tradeoff exists—that some technologies and ways of earning money must remain off limits because they are simply too harmful.

Just as Americans now largely acknowledge the perils of climate change as a result of climate scientists and environmental protection organizers contextualizing the issue as communal in nature (both in how it is solved and how its impact will be felt), this similarly communal framing of privacy helps immensely in communicating the dire need for political and legal recourse.

The cogency of the ideas and analogies the essay presents makes it a must-read for any privacy defender, and especially for those disposed to appreciate privacy concerns but are not yet moved to action.

You can read the full essay on Cegłowski’s blog here.