Ten years ago, surveying the technology of the time – which, by and large, was one hundred times less powerful than today’s data processing capacity – Scott McNealy, then-CEO of Sun Microsystems, said: “Privacy is dead. Get over it.”
He was probably wrong in what he said. Pure privacy—e.g., the privacy of activities in your own home—remains reasonably well-protected – for example, the Supreme Court has said that the police may not use thermal imaging technology to reveal activities taking place inside your home without a warrant.
What has been lost, and will become even more so increasingly, is the anonymity of being able to act in public (whether physically or in cyberspace) without anyone having the technological capacity to permanently record and retain data about your activity for later analysis. American law has a phrase to describe this phenomenon; it is “practical obscurity.” It was first defined in a case known as Department of Justice v. Reporter’s Committee for Freedom of the Press. At the time the concept meant something. Today one might say: “Practical obscurity is dead. Get over it.”
This is not, however, something that leaves everybody happy. Many think that the inherent right to anonymity (or obscurity) is an essential part of the fabric of society. Others think that government access to private, personal data, poses a threat of authoritarian “Big Brother” control. On the other side, some argue, that better data analysis is an essential component of security in the post-9/11 world. Most of the laws that apply to data mining are intended to try and address this tension.
To help resolve the issue, we’ve asked two experts to “debate” the issue and discuss the challenges to privacy and security in current law:
Daniel Solove is a Professor of Law at George Washington University where he teaches Privacy Law. He is an internationally recognized expert in the field and his work has often appeared in the press. He is the author of the just published book, Nothing to Hide: The False Tradeoff Between Privacy and Security.
Nathan Sales is an Assistant Professor of Law at the George Mason University School of Law. He teaches National Security Law and Administrative Law. Before joining GMU Sales was Deputy Assistant Secretary for Policy Development at the U.S. Department of Homeland Security. Amongst his recent works is the article, Homeland Security, Information Policy and the Transatlantic Alliance.
