Taking a New Look at Privacy Theory

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Privacy has been an active public policy issue for more than 40 years. We are awash in laws, reports, guidelines, standards and other domestic and international documents on the subject. Is it possible at this late date for anyone to take a truly fresh look, with an eye toward identifying and evaluating the many beliefs, values, questions, concerns and goals that might motivate government action on privacy?


Someone has taken up this very challenge. The Interactivity Foundation is a private, nonpartisan group that supports the creation of sound governance policies. It is located in West Virginia and at www.interactivityfoundation.org.


As an old Washington policy player, I find the foundation to be charmingly and somewhat intentionally naïve. It recruits both professionals and citizens to work on projects, but it doesn't identify them publicly. It imposes conditions on the release of its reports, including restrictions on using and citing reports. It publishes reports, but does not make them available directly on the Internet. If you want one, you have to make a request and it will snail mail it to you.


That's not the way the policy game is typically played these days, but the foundation follows its own star. I only learned about the group by a coincidence that I couldn't describe without breaking a confidence. However, I can say that I had nothing to do with its report on privacy.


The report, "Privacy and Privacy Rights," is dated February 2005. It offers nine distinct and contrasting governance possibilities for privacy. These include privacy as property, privacy rights as protection of basic liberties, privacy as a fundamental right, privacy as subordinate to national security and privacy as a lost ideal. Each approach leads in a different direction for making societal choices.


The report identifies consequences for each governance possibility. For example, under privacy as a lost ideal, it suggests that the government could repeal privacy laws, work to lower societal expectations about privacy protections and require citizens to carry identification cards. Other legal changes might include repeal of copyright protection and easier law enforcement because of the absence of restrictions aimed at protecting privacy.


Consequences for businesses include saving money because they no longer would need to protect information or train employees in privacy. However, the lack of protection might result in a flood of data and a subsequent loss of value for information assets. That last point may give some privacy-haters pause.


This is all interesting, even though it has no immediate application in the real world. No politician today is likely to advocate repeal of privacy and intellectual property laws. However, the foundation is not taking a position for or against anything. It offers alternative and somewhat abstract approaches, evaluating each in a similar, neutral way. The result is a document that makes you consider just what privacy is and what privacy policy can be expected to accomplish. It forces thinking outside the usual boxes.


By slipping the bounds of what may be politically and practically possible, the foundation offers a new perspective on the fundamental issues rather than another standard advocacy piece. So whether you wish privacy laws to disappear or expand, the report makes you confront some of the consequences of that choice. You likely will find that one particular approach may not always have the effect that you desire.


In a way, the report reminds me of "Einstein's Dreams," a novel by Alan Lightman. The novel posits other universes in which time is a circle, time goes backward, time stands still, etc. In each universe, the way that time functions deeply affects how people and things work and interact. It is an interesting exercise, even if detached from reality.


The foundation report is not quite so detached as to require a change in the fundamental laws of physics before any of its ideas could be implemented. It is a policy analysis and not fiction, albeit an analysis with a heavy dose of the hypothetical.


This type of work is easy to criticize on many fronts. I would note a lack of recognition of the realities of third-party record keeping in the modern world and of the rapidly growing interrelationship between governmental and private sector record keepers. Those forces and the supporting technologies are rapidly, and perhaps irreversibly, shaping developments in directions unfavorable to privacy. In short, the report might have benefited from more fact finding.


The foundation is adept at privacy policy work but not necessarily at its implementation. Its Web site promises that the foundation "will not release your contact information to anyone or organization." The sentiment is lovely if a bit ungrammatical. However, no one can make that promise, if only because of the possibility of a subpoena or search warrant. In any event, a broad nondisclosure pledge is no substitute for a complete privacy policy. Still, the foundation does better than some. I often find that nonprofits fail to address privacy on Web sites or otherwise.


If you want to reconsider privacy in some nontraditional ways, visit the foundation's Web page and order a copy of the report. It won't solve any of the privacy problems on your desk, but it will make you think.


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