The Current Status of Privacy is an Ecological Disaster

Privacy is typically viewed as a transactional good with a transactional nature. Consequently, focus is placed on regulating the transaction – that is, on the kind of consent required for collection of data, on what constitutes informed consent and on how the collecting entity may use the data. Whether this practice, in which people contract away their personal information is viewed as welcome or inherently dysfunctional, there can be little doubt that we are complicit in allowing it to occur. Viewing privacy through “ecological glasses” might put the problem into greater focus and provide a far less myopic and more useful perspective in which to examine it.

Professor Moglen argues in a 2014 article in The Guardian, that we have misunderstood the nature of privacy, stressing that private surveillance that came into existence through the forces of the free market, has turned into an “ecological disaster”. He further argues that “privacy is about our social environment, not about isolated transactions we individually make with others”. Within this framing, as he further demonstrates, when individuals make a “personal decision” to contract away their privacy, they also contract away the privacy of others that they correspond and interact with – and therefore derogate from the right as a whole.

If, in keeping with this view, we have misconstrued the nature of privacy, perceiving it as a transactional good between two parties rather than an “environmental resource” in the sense that the choice of the individual affects the right of many – then really what we have here is a crisis that is being dealt with in an inappropriate manner – without the proper regulations or tools. In other words, we have an ecological disaster without an EPA.

If privacy is a “social environment”, then the legal framework of environmental legislation may well be applied here as well. As in the fight against climate change, air pollution by factories and even, in the scope of health regulation, intervention in the sale of cigarettes and restriction of their use in public spaces – the government has the obligation to regulate privacy as an environmental resource, and educate users on the ecological effects of their online decisions.

Similar to the government’s war against polluting factories or cigarette and tobacco companies, fighting the war against “privacy pollution” requires a measure of paternalism regarding dos and don'ts, agreed upon standards of care, rules regarding damages and global uniformity in abating dangerous privacy nuisances. By applying standards for protection of environmental resources to privacy, we are advocating an approach that empowers legislators to hold “polluters” accountable for their actions, and encourages them to take a more paternalistic approach in certain matters. In keeping with the model of environmental legislation, it would be preferable, as an example, to regulate the input of health metrics or biometric identifiers to the Net.

Under an ecological analysis, current forms of commercialization of privacy, typically examined through the notion of “consent” – would require revision. Where the regulator determines that “privacy pollution” is taking place, the following steps would have to be taken:

(i) Step 1: In certain instances, users would no longer have the option of contracting away their privacy. If privacy is no longer a transactional good, then a user’s consent to contract away his/her privacy in return for free services would be deemed irrelevant. Once again, a good example in this regard would be to prohibit the use of health metrics or biometric identifiers. For this to be effective, legislators would have to rethink the current form of behavior collection and information flow, currently encompassing the information industry.

(ii) Step 2: Companies would be held accountable for permitting such (previously regarded as transactions and now) “pollutions” to take place. Accountability in this regard might be considered in terms of a two-tier structure: (a) holding companies accountable for collection, storage and analysis of data (whether actively or passively collected) that the legislator and regulator have determined cannot be contracted away by users, transferred to third parties, or used to predict commercial behavior; and (b) holding companies accountable for their users’ “privacy pollutions”. For this to be effective, “privacy pollutions” by users may need to be excluded from the broad protection provided to Internet platforms by Section 230 of the Communications Decency Act.

(iii) Step 3: Holding users accountable for “polluting” other people’s right to privacy. In the same way that none of us can choose to pollute our air or water sources, and in the same way that smokers can no longer smoke in public and subject others to the harmful effects of nicotine – users whose online actions contract away the privacy of others, may very well be held accountable for nuisance (in addition to any other cause of action that may arise from their “polluting behavior”).

If privacy is really a matter of “social environment”, as Professor Moglen argues, then its current status is a disaster of an “ecological” kind – requiring legislators to rethink the way we view and protect the right to privacy, and to establish a set of clear ethical and legal standards for regulating it. This form of rethinking is long overdue, as privacy is clearly an environmental resource at immediate risk of massive pollution. It is only a matter of time before we have succeeded in connecting the rest of the world to the Net, and surrounding mankind with wearable tech, IoT? devices and drones. Despite the obvious benefits, these achievements are “mass polluters” that raise fateful questions about our politics with respect to privacy. We owe it to the next generation, who will be born into the consequences of this untreated ecological disaster, to rethink the transactional nature of privacy, and lay the foundations for a social environment in which technology innovation is encouraged while online users’ privacy is maintained.