INDIVIDUAL PRIVACY AND THE STATE

Modern notions of privacy are closely connected with the growth of liberalism in the nineteenth and twentieth centuries.

During this period, the idea that individuals are equal in their essential humanity, bearing inalienable rights against other individuals, groups, and institutions, became increasingly accepted.

Such a viewpoint implied the idea that individuals should have broad horizons for their personal development and should be free to think, express themselves, and act as individuals and not always as a member of a group (a family, a tribe, a nation, an ethnicity/race, a gender, etc.).

Such a viewpoint implied the idea that individuals should have broad horizons for their personal development and should be free to think, express themselves, and act as individuals and not always as a member of a group (a family, a tribe, a nation, an ethnicity/race, a gender, etc.).

As writers such as Hannah Arendt (The Origins of Totalitarianism) and George Orwell (1984) have warned us, states assume total power (and thus become “totalitarian”) when they can dismantle the distinction between individual privacy and the public realm of the state and the government.

For example, Orwell’s famous anti-hero, Winston Smith, and his struggle to avoid the prying eyes of the all-seeing government (“Big Brother”), even in his apartment.

The Soviet Union under Josef Stalin, for example, initiated purges of anyone suspected of political dissent.

Stalin’s sorry record of mass murder and brutal incarceration of political opponents as “enemies of the state” comprises one of history’s darkest chapters.

Under the Stalinist police state, there was a little real possibility of private correspondence and association, in which one could express one’s ideas candidly without fear of reprisal.

Recall that in UDHR 12, the authors use the term “arbitrary’: “No one shall be subjected to arbitrary interference with his privacy.”

The word is essential, for it underscores the idea that only a government subject to the law – and therefore, not an arbitrary power – has the right under lawful circumstances (such as the possession of a court-issued warrant) to interfere with a person’s privacy.

In fact, as in the case of Stalin and Hitler – and also with contemporary authoritarians such as Xi Jinping (China), Vladimir Putin (Russia), Kim Jong-Un (DPRK), and Viktor Orban (Hungary) – the lack of genuinely democratic institutions tends to instill an ever-growing sense of paranoia in the regime.

Fear among non-democratic regimes that the people will rise and topple the government often compels authoritarians to violate privacy to root out and eliminate critics.

DIGITAL PRIVACY

While we are lucky to live in a democracy, we also face efforts beyond the state to diminish our power as democratic citizens.

These threats manifest 1) in the capacity for digital information about us to remain publicly available for an unlimited period, even after we die, and 2) in technically sophisticated techniques employed by major IT companies, mainly social media conglomerates, to profile us in granular detail and use the same technology to influence our decision making.

Recently privacy rights in some jurisdictions have been extended to include the right to digital privacy and the right to be digitally forgotten – or to have your online personal data scrubbed when you are victimized online or when you die.

This proper claim speaks specifically to the second assertion in UDHR 12, which claims an individual’s right to control their reputation.

To that end, in 1995, the European Union issued a Data Protection Directive which argued for the right of people to have online data deleted once that data

was no longer needed.

The EU later adopted the concept as an official policy

There are now efforts to encourage significant internet companies to delete personal data under specified circumstances, but the prominent data collectors have balked at these demands

In April 2018, however, Google lost a landmark case requiring the firm to erase search results concerning a businessman’s (the plaintiff’s) past conviction for conspiracy (see image)

“Surveillance capitalism” is another significant new development.

Similar to the right to be forgotten, this issue concerns the overwhelming economy and economic and technical power.

Once upon a time, internet companies mainly provided services: access to information, communications tools, and the like.

Now, their business models have extended to gathering information about us (“big data”) and connecting paying customers (advertisers) to us.

A central pillar of a democratic society is the right of the people to scrutinize their government, mainly how it spends our money.

Several institutions help us to see through the layers of governance and bureaucracy to get a clear sense of what the government is up to auditors, ombudspeople, access to information laws, and, of course, the free press.

These institutions are necessary to make informed democratic decisions in our interest (especially in voting).

Moreover, “the people” have no inherent right to scrutinize these companies as privately-owned corporations.

The companies may be subject to subpoenas from parliamentary or congressional committees to compel testimony (as has happened to Mark Zuckerberg many times), but their “trade secrets” are often proprietary and thus protected by law.

The net result of these developments is that enormous political power has coalesced amongst the wealthiest corporate entities in the world, with very little corresponding political influence on the part of users.

And the irony is that this corporate power is predicated on the availability of our private information, which we willingly, though often unwittingly, supply.