Let's Leave Orwell Out Of It

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It has been a confusing few days in the privacy debate. Last week, The Guardian published two stories about the US government’s collection of data. First, The Guardian revealed that the US government was collecting “metadata” – information about a telecommunication, rather than the content of the telecommunication itself – from Verizon. The following day, they published a story revealing a top secret US program, PRISM, which was able to access data on the servers of Microsoft, Google, Facebook, and other “internet giants”.

Understandably, many people are concerned about these revelations. Unsurprisingly, responses have ranged from the elegant and the sublime through to the kooky and weird. Naturally, the word “Orwellian” has been used everywhere.

First they came for the mobile phone metadata, they whisper in hushed tones. Then they came for the Facebook status updates. Soon they’ll drag me to a North African prison… It’s just so Orwellian. At least the American public thinks so. Sales of the book on Amazon have skyrocketed by 7000 per cent.

The key aspect to a rational discussion about privacy rights is not what data the state has obtained, but how the state obtained the information. If I commit some terrible crime, it is not necessarily a breach of my privacy for the police to obtain the information that I committed the terrible crime. What matters is how the police find out that I committed that crime. Perhaps they had eyewitnesses. Perhaps they took a sample of my DNA when I was arrested for a separate crime. Perhaps they turned every mobile phone in Gotham City into a sonar-based surveillance system.

It is in this space that law and morality overlap. Although we discuss ideas like probable cause, the Fourth Amendment and other constitutional rights, and so on, the actual lawfulness of obtaining the information is secondary to a bigger point: even if it is lawful, should it be lawful? For privacy advocates, it almost doesn’t matter if the schemes are technically lawful. If they are lawful, they contend, the law should be changed so that they are not.

Discussing the morality of the state obtaining information is a significantly more difficult task than discussing its legality. Even if the discussion were free of the Tea Partyesque clowns – the ones who utterly refuse to believe that the State is capable of having these two datasets without going full Nixon on everybody – our toolkit for discussing the issues is old and rusty. Orwell’s 1984 is still the standard text for “authoritarianism”, but it was written back in 1949 when the biggest threat to your soapbox was the state.

Here in the year 2013, we have sold off the soapbox to a variety of increasingly shady companies, who mediate much of our day-to-day interaction with others, including political interaction. My peers protest by hitting “like” on a Facebook post. They rally through hashtags on Twitter. When they want to feel informed, they use Google to find bias-confirming information. Gmail and SMS allow them to coordinate good, old fashioned sit downs on the lawn outside Parliament House.

Each day, we hand over vast amounts of our private information to these companies. More interestingly, we also hand over a vast amount of private information about people that we know: the photos of us down at the pub, the tagging of people in status updates and so on. Even a slightly higher than average level of communication between people gives data analysts clues about our personalities and preferences.

You don’t even need to give your consent to these organisations to start compiling this information. People without Facebook accounts are still tracked by Zuckerberg’s cookies on the one hand, and have their pictures uploaded by well-meaning friends on the other. It’s a massive dataset full of our private information that we hand over for free so it can be sold to companies we’ve never heard to do things we never thought possible. If they misuse it, we’d never know. If we ever knew, we’d never be able to sue.

And thus we get to the crux of the Verizon and PRISM issues: we seem happy (or at least unperturbed) that companies have vast amounts of data on us for advertising, data mining, profiling, and all other kinds of poorly regulated activities. But when the government gets the same access to this dataset, we freak out. Creepily accurate advertising is apparently fine; law enforcement is not.

The privacy advocates’ position makes little sense: when obtaining this data about us, the State never had to violate the sanctum sanctorum of our private worlds. The data no longer belonged to us. Stretch your imaginations and think of the State is a group of vampires. In vampire mythology, vampires can only come into your home (violating your privacy) if you invited them to do so. Although privacy advocates are arguing that the vampires have broken the rules by entering our homes and draining our bodies of delicious private information, they fail to see is that the vampires are just taking the information we have been bleeding out into the streets for years.

Unlike the data miners who use our information for all kinds of unknown purposes, the US government’s use of the datasets is well regulated. The Obama administration released a Fact Sheet outlining how the PRISM program was supervised by the courts as well as by congress. There are two important things to take away from the Fact Sheet. First, “fishing trips” – where the State randomly selects information to audit for crimes – are forbidden. Second, there is a limit on the justifications for accessing the information – so the paranoid claims that the State would hunt down leaks to journalists were unhinged.

If anything, this scheme has features which Australia could feasibly implement in order to balance privacy concerns against, say, the benefits of CCTV or other passive data collection activities: one group collects the data and the State’s access to it is regulated. Checks, balances, and less reliance on pure trust.

Privacy concerns are increasingly important as we rely on third parties to provide us facilities we consider essential, but our discussions about privacy need to be analytical and rational. Getting upset that somebody took what we freely gave is neither.

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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