Monday, July 22, 2013

On Metadata and the Right to Privacy

One of the interesting points raised by the NSA call data warehousing disclosures is whether the collection of metadata about phone calls is materially different from collection of the actual content of the calls themselves, and if so, how.  It's easy to see why you wouldn't want people listening in on your calls.  Knowing who you called and when is obviously materially interesting and important, but it seems to fit into the theoretical framework somewhat differently.  I'm trying to get a better understanding of the Right to Privacy in the abstract, because it's a tricky beast; for instance, is the Right to Privacy a fundamental human right?  Is it constitutionally supported?  What harm comes to someone who is being surveilled without their knowledge?  If there's no harm, and they never find out, what's the basis for the claimed right, and what's actually being infringed?  I've been working through one of the seminal works on the right to privacy in the US, Warren and Brandeis' Harvard Law Review article The Right to Privacy, and interesting, it actually addresses the question of metadata somewhat directly.  Warren and Brandeis propose that the right to privacy doesn't actually derive from any damages that we incur due to having our privacy breached, but instead derive from intellectual property rights.  They discuss the publication of information about a collection of gems, as opposed to the sale of the gems themselves:

Suppose a man has a collection of gems or curiosities which he keeps private : it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs...To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is that which is exclusively his..."

One of the downsides of this argument, as applied to government intrusions into privacy, is that it is very firmly based in 19th century notions of privacy from the paparazzi press of the era, and, as Warren and Brandeis put it, "the right to be left alone."  If the government is collecting data and keeping it secret, such concerns evaporate.  But, the interesting point is that, in their view, no damage needs to be shown to have suffered from a violation of privacy; the information which I care about is mine, and there's no need to quantify its value in order to show that you misused it.  Just as if you took a used paper coffee cup from me without my permission, it's theft, irrespective of the value.

In the Big Data era, we are constantly sloughing information in a myriad of ways: see, for instance, this article about collection of information about shoppers habits based on their mobile device WiFi signal.  (The shopper outrage is a bit hard to grok; you have a device in your pocket which is constantly broadcasting, and it's not doing it on its own, you had to buy it, and turn the WiFi on.  I think if people want to buy and use technology they don't understand, they're going to run this risk, and should take some personal responsibility.)  Warren and Brandeis seem to imagine a penumbra of information that follows us around, and within a certain sphere, that information belongs to us, but outside of which, it is fair game (much like Rabbi Jeremiah's fledgling bird.)  But with the amount of data being thrown off increasing both in range and volume, does the sphere stay the same size, or do our expectations simply have to change about what's fair game?

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