The Privacy Paradox: Surveillance vs. Celebrity
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If you are reading this article, you are probably among the millions of Americans who received an important but little noticed message from your credit card company last month. The notice -- written in infinitesimally small print -- informed you that unless you wish your credit card company to share your personal information with banks, insurance companies, brokerage firms and other financial institutions, you must put a dash in the "Opt Out" box and return it to the sender.
I have a couple of credit cards, so I must have received several of these forms in June. But I paid no attention to them; just threw them in the trash. Now it's mid-July, so unless I take some initiative and go to sites like PrivacyRightsNow.org, which helps consumers protect their financial information, my credit card companies have the right -- thanks to loose consumer privacy protection and the Gramm-Leach-Biley Act of 1999 -- to freely share my banking records and buying habits.
Welcome to privacy protection, or the lack thereof, in the information age. Due to ever more impressive technological innovations, Americans are now under constant surveillance, whether from their employers (according to the Privacy Foundation, the Web use and email of 14 million employees -- a full third of the workforce -- is being monitored), from police (who increasingly are using video cameras on downtown streets and flashlights with built-in breathalizers) or from private industry (which more and more bases its business models on information data to sell products to consumers).
Most Americans know about the Orwellian undertones of the information revolution -- but usually after it's too late. In January, attendees of the XXXV Super Bowl in Tampa learned only after the game that their faces had been "mapped" by hidden surveillance cameras and compared to a computerized database of suspected terrorists and known criminals. Again in Tampa this year, some citizens were unhappy to discover that a similar technology -- called the FaceIt scanning system -- had been installed by the local police to search for runaways and criminals on the city's most congested streets. (Tampa, by the way, received this year's Big Brother Award from the nonprofit advocacy group Privacy International. Other runner-ups included Pennsylvania school districts, which fingerprinted children participating in school lunch programs, and the FBI's unfortunate-named Carnivore system, which searches everyone's email using keywords like "bomb" or "blast" and informs law enforcement when messages seem particularly suspicious).
Yet as every new story of egregious privacy invasion hits the newsstands, it seems a wave of shock and outrage is followed by the calm waters of indifference and immobility. Why is that? Have Americans become so frustrated by their ability to influence public policy, they have been rendered apathetic? Or is it just too hard to do the paperwork, software installation and lobbying necessary to protect one's identity?
Certainly few Americans want their financial information or Web-surfing patterns exposed to companies who will then target them with advertising or the incredibly irksome 9:00 pm sales call. According to several polls, 80 percent of Americans say that privacy invasion is among their biggest concerns. And when they hear that, come 2002, cell phones will be equipped with tracking devices, or that Digital Angel has developed a subcutaneous honing chip for humans, they tend to cry Prospero-like, "Oh, Brave New World!"
And certainly the courts have been busy arbitrating the messy intersection between technology and privacy law. The recent Supreme Court ruling on Kyllo v. United States, which examined the legality of police using a thermal imaging device on a suspected pot grower's home, has given some proponents of privacy protection hope. Justice Antonin Scalia, the occasional libertarian, ruled that the device violated Kyllo's Fourth Amendment rights against unreasonable searches and seizures and therefore was unconstitutional.
But as many legal affairs writers have pointed out, most privacy law and privacy lawsuits protect citizens against invasions by government, not business. This is largely because much of the case law on the subject dates back 50 years, long before the Internet and other technology gave companies new tools to track consumers, and because industry and law enforcement are better organized than their privacy-protecting opponents. According to a July 15 Los Angeles Times story, the past few years of privacy lawsuits have resulted in a string of setbacks for consumers. "The going rate for corporate invasion of personal privacy," wrote the Times, "appears to be around $50 a pop." Companies like Alexa Internet, a unit of Amazon.com, have agreed to pay up to $40 to consumers who demonstrate their personal information was improperly gathered.
Forty or fifty dollars is undoubtedly chicken feed when it comes to the potential profits for companies in the information business game. Still, there is not much of a privacy movement beyond the employees and activists of organizations like the Privacy Coalition, the Electronic Privacy Information Center and Privacy International. "Self-help" technology that blocks Web bugging and email surveillance is available to consumers. But Zero Knowledge, the leader of that industry, has found there is not much of a market, and is now focusing on business-to-business data management rather than on consumer technology.
So there seems to be something about the dispersal, collection and sale of personal information that has become a social norm. Jeffrey Rosen, a leading scholar on privacy issues, has argued in The Unwanted Gaze: The Destruction of Privacy in America, that though privacy is a public good, legal, technological and cultural changes have undermined our ability to control how much personal information is communicated to others. Rosen's book examines how, in the 18th century, when the Bill of Rights was drafted, the spectacle of state agents rummaging through a personal diary was considered the paradigm case of an unconstitutional search and seizure. But during the impeachment of President Bill Clinton, prosecutors were able to subpoena Monica Lewinsky's bookstore records and access unsent love letters from her home computer with little difficulty.
Why this is so, argues Rosen, has everything to do with the tangle of questions that privacy raises. "People may like the idea of privacy protection in the abstract," said Rosen in a telephone interview. "But until their privacy is violated in a way that actually affects their life, they are reluctant to demand change." His primary example for this phenomenon is Monica Lewsinsky, whom he calls "an unlikely spokesperson for the values of reticence."
"Monica Lewinsky was justifiably aggrieved by the seizure of her diaries," continued Rosen. "But she was happy enough to talk about her abortion on Barbara Walters because she was the one deciding when to disclose these parts of herself."
Lewinsky, who has since gone on to author a memoir on her affair with President Clinton, design girlie hand bags and serve as spokesperson for Jenny Craig, the weight loss company, may very well be evidence of a generational shift about views on privacy and reticence. She does seem to cherish her continued place in the public eye more than the knowledge that she will forever be associated with President Clinton's member.
Which raises the question: What is the relationship between exhibitionism, celebrity and desire for privacy? For Rosen, the very relationship is evidence of one of stranger social paradoxes of our time. For privacy invasion today is not just about passively, or unknowingly, allowing companies or police enforcement to gather information on an individual's habits or views or whereabouts, but about the desire for status and exposure in a "democratic, connected society."
Rosen says he increasingly believes that celebrity culture may be the missing key to why the privacy movement cannot get off the floor. "To be unknown and invisible is not to exist to some degree," he said. "So the urge for being known may have eradicated, to some degree, the distinction between fame and infamy" -- and with it the legal demand for privacy protection.
In the past two years, similar views have been articulated by writers on contemporary American culture and politics. Jeremy Rifkin, for example, in his book The Age of Access: The New Culture of Hypercapitalism Where All of Life Is a Paid-For Experience, asserted that Generation I is more concerned with being connected technologically than with having private time. He argued young Americans' self worth is not so much dependent on the older values of public service and family responsibility but on how many telephone calls and emails they receive daily. "I am connected, therefore I am" is the true Gen I maxim, according to Rifkin.
Neal Gabler the author of Life the Movie: How Entertainment Conquered Reality also has weighed in on the privacy/fame issue, arguing that Americans are so inundated with glowing narratives from advertisements, TV shows and films that they daydream about notoriety, imagining themselves the subject of celebrity profiles, photo shoots and gossip. Writes Gabler: "It is not any ism but entertainment that is arguably the most pervasive, powerful, and ineluctable force of our time -- a force so overwhelming that it has finally metastasized into life."
This may seem very different from the question of whether enough Americans, including myself, will bother to write to their credit card companies, blocking them from sharing financial information. But there is a link, which is: if we don't, our inaction may serve as evidence that privacy protection is taking a backseat to another valued public good -- exposure and notoriety. As Rosen puts it, "We're looking at a crucial paradox when people say they want privacy and then go on reality television shows and reveal all."