Our ideas about privacy need redefining in the internet age
Hayden Glass is a Principal with the Sapere Research Group, one of Australasia's largest expert consulting firms. Thanks to Rick Shera (@lawgeeknz) for instructive conversation.
I consider myself a fairly typical internet user. Google for web search, a Gmail account for email, calendar and contacts, the Chrome browser for surfing, and my Google drive for a whole host of documents stored and shared in the cloud. On my Android phone I have 60 or so apps installed. I have no Facebook account, but I am on Twitter. I use Dropbox to share files, Flickr for my photos, iTunes for music, and Tumblr and Wordpress for blogs. Plus, like the rest of you, I use online banking, shop online, and get my news nearly exclusively from online sources. I provide my location to make Google maps work better and also to help get better search results, but I click "Deny" when my phone gives me the choice to share location with any particular website.
The internet is such a part of daily life that we now share information unconsciously. Everything we do online creates a record and we don't think too much about what happens to it. In US academic Daniel Solove’s vivid phrase, “data is the perspiration of the Information Age”. Others, like American computer security specialist Bruce Schneier, think of your click-stream as a type of pollution, in the sense that it is created by doing some useful online task but it can have unpleasant side-effects that need to be managed.
In Part 1 of this post we take a brief look at the online privacy environment and what makes it different. In Part 2 we will look at how laws are changing to adapt to it.
Something new under the sun
Problems of information privacy are much more difficult in the internet age because the internet itself is so widely available, and information flows on it are difficult to control.
The internet has no borders, and is not based in any particular country. The location of service providers or users is generally unimportant: information available in one place is available in all, and it is difficult to control or trace the flow of data. Content is continually being added or modified, but content is also persistent, i.e., information that was once on a website can be searched for and retrieved even after the content of the site has changed.
The internet is also tricky for governments to control. There are, of course, still telecommunications operators who connect you to the internet. They have extensive physical investments, powerful brands and reputations to uphold. But service providers who hold information about you are generally not dependent on individual governments for resources at all. Most of the New Zealand internet's most popular services are provided by US firms based in California with servers all over the world, and with little local presence here. The ability of the New Zealand government to influence the activities of, say, Facebook is limited, and given the aterritoriality of the internet, it is often not clear how firms can navigate the thicket of different national responsibilities.
Privacy, of course, is also a non-internet problem. Those holding information need to not, for example, lose sensitive government data in the internal post, or leave their computer systems open for members of the public to access.
But often internet users do not realise how much they are sharing (see these unfortunate Belgians), or what the consequences are. Facebook stands accused of deliberately making it hard for users to control their own privacy, and even the most sophisticated can get it wrong, releasing data that they think is innocuous (like AOL or Netflix) that turns out not to be when combined with other public data. See also a local example.
Gold in them thar hills
The major online services companies have also raised substantial privacy concerns by mis-estimating what their users are happy with: cue dismay when Mark Zuckerberg, Facebook CEO, said that his firm was built on privacy expectations that all users might not share and the furore over changes to Facebook's privacy settings that have led to EU and FTC regulatory intervention, or when Google's then CEO Eric Schmidt said that if you want to keep something private online "maybe you shouldn't be doing it in the first place".
With all of this information about your online activities able to be discovered, there is money to be made in sifting through it,tying it together, and then selling the profiles to online advertisers.
Consider Rapleaf, a US outfit that matches email addresses with a range of public data including Zip code, age, income, property value, marital status and whether the person who controls this email address has children. It claims to have data on over 80% of US email addresses, and charges 0.5 cents per match.
Or this (registration required), a deal between Facebook and a firm called Datalogix that allows the site to track whether ads seen on Facebook lead users to buy those products in stores. Datalogix buys consumer loyalty data from retailers, and matches email addresses in its database to email accounts used to set up Facebook profiles.
It is hardly surprising that people are concerned about online privacy. Americans say their biggest perceived privacy threat is social networking services like Facebook and Twitter (they are also worried about unmanned drones, electronic banking, GPS/smartphone tracking and roadside cameras) (WARNING: PDF).
New Zealanders are worried too. A Law Commission survey revealed that 84% of respondents were concerned about "the security of personal details on the internet", more than were concerned about "confidentiality of medical records" (78%) or "government interception of telephone calls or email" (72%).
Expectations of privacy clearly depend a lot on context. Information I share with my mother I may not wish to share with my friends (sorry guys), and information I share with my friends I may wish to keep secret from a potential employer. Information that I directly and intentionally share (e.g., via Twitter) is less sensitive than information that I do not know is being collected. I would consider my browser history, my email and my search history more sensitive than my purchase history from Amazon.com. I am pretty relaxed if information about these things is used just to target online advertising. I am less relaxed if these data were put together and used to establish my identity or calculate my credibility and trustworthiness.
And since my list of privacy preferences will not be the same as yours, it becomes clear that the question of online privacy is about the limits of my ability to control the flow of information about me, and my basic point here is that the internet age means that I have less control than before.
If users are concerned about control but feel (and to some extent are) powerless, what help does the law provide? We take up that story in Part 2.