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Reasonable Expectations

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A position paper exercise on privacy. Written for a Computer Science class in Fall 2021.

The Case For Subjective, Individualized Expectations of Privacy

Introduction

The virtual world challenges the legacy idea of “a reasonable expectation of privacy.” Society cannot broadly determine what should be recognized as “reasonable” in the face of varied digital literacy rates, mixed financial incentives of many of those in society, and ever-changing technologies. Instead, in order to protect important privacy rights, new privacy norms should rely primarily on the subjective expectation of privacy expressed through informed consent.

Background

There are several definitions of “privacy,” conceptually ranging from something morally valuable to a legal right (1). In the United States, the Fourth Amendment grants the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (2). This Amendment has been central to American privacy case law and theory. Notably, in Katz v. United States, the interpretation of the Fourth Amendment was expanded to include as private and protected what an individual “seeks to preserve as private,” as Justice Potter Stewart wrote in his majority opinion (3).

In his concurring opinion for the same case, Justice John Marshall Harlan II additionally set forth the idea of “a reasonable expectation of privacy” (4). He suggested that this “reasonable expectation” requires (1) “that a person have exhibited an actual (subjective) expectation of privacy,” and (2) “that the expectation be one that society is prepared to recognize as ‘reasonable.’” This paper will discuss why this idea is no longer useful in the virtual world.

Digital Literacy

The outdated notion of “a reasonable expectation of privacy” is partly founded on society’s supposed ability to broadly agree on expectations of privacy. However, such a consensus cannot possibly be reached because there is too great a difference between the most and the least digitally literate in society. In the United States today, the major concern about digital life is no longer so much around digital access. Instead, the Pew Research Center reports, the critical issue is, “the degree to which people succeed or struggle when they use technology to try to navigate their environments, solve problems, and make decisions” (italics mine) (5). The reports demonstrates that there are several different groups of Americans on the digital literacy spectrum.

This is concerning because in order to define “a reasonable expectation of privacy” in the virtual world, a society needs to be able to define those expectations together. A digitally illiterate society, or one with highly varied levels of digital literacy, surely cannot do this. If a society as a whole is ill-equipped to determine these expectations, then that leaves the possibility of selecting a specific subset of society to do so. However, that presents its own challenges. For example, American elected representatives in Congress themselves appeared fairly digitally illiterate in the 2018 hearings against Facebook (6).

Mixed Incentives

Other challenges arise if a society hands off the determining “reasonable expectation[s] of privacy” to a representative or other stakeholder. Evidence has already been presented highlighting the American Congress’s elementary digital literacy. The ability of elected representatives to determine these “reasonable expectation[s]” should further be called into question given that many large technology companies spend millions on lobbying in American politics (7). Lastly, given that many of these technology companies’ business models rely on limited privacy protections of their users, it would be naive to think that they could act on behalf of society to recognize what these reasonable expectations of privacy might be. As Maciej Ceglowski puts it:

Those who benefit from the death of privacy attempt to frame our subjugation in terms of freedom, just like early factory owners talked about the sanctity of contract law. They insisted that a worker should have the right to agree to anything, from sixteen-hour days to unsafe working conditions, as if factory owners and workers were on an equal footing (8).

Fundamentally, society’s inability to determine reasonable privacy expectations for itself in the digital world undermines Justice Harlan II’s framework for thinking about privacy.

Ever-changing Technology

Lastly, given the unprecedented pace of technology development, it is unreasonable to expect that society could keep up with all the new developments. Indeed, it might only be reasonable to assume that the technology companies themselves could keep up with their technology—if even that is a reasonable assumption. Either only those building the virtual world fully understand the implications of that world, or no one does. In either case, Justice Harlan II’s requirement “that the expectation be one that society is prepared to recognize as ‘reasonable’” cannot be fulfilled.

Informed Consent and Expectation of Privacy

Where Justice Harlan II’s second requirement fails in the virtual world, the first requirement thrives. In the virtual world, “a reasonable expectation of privacy” exists only when the person has “exhibited an actual (subjective) expectation of privacy,” as Justice Harlan II’s puts it in his first requirement.9 This subjective expectation can be reached when there is informed consent. In their report on privacy, a United Nations Human Rights Council reaches a similar conclusion, declaring that users must, “have meaningful transparency about how their data are being gathered, stored, used and potentially shared with others, so that they are able to raise concerns and make informed decisions” (10).

Without this meaningful transparency, informed consent cannot be attained and privacy rights are seriously compromised. For instance, in “Markets and Privacy,” Kenneth C. Laudon describes refutes classic “fair information principles” on the grounds that the individual cannot possibly review all the systems in which her information is stored (11). When informed consent is not prioritized, it is hard for people to understand and be critical of their privacy in practice. The existing gaps around informed consent in the virtual world are well-documented. A Pew Research study, for example, found that in late 2018, 74% of adult Facebook users, “were not aware that the site lists their traits and interests for advertisers” (12).

The subjective expectation of privacy is different in the case of children, who are themselves major Internet users. According to a 2017 National Center for Education Statistics survey, 51% of children aged 3 and 4 and 77% of children 11-14 used the Internet either at home, school, or elsewhere (13). It’s also known that many children use Internet and other services, like Facebook, while pretending they are older (14). Under the expectation of privacy through informed consent, existing standards of informed consent for children should be applied. For example, children should have extra protections under privacy law, like they do under other types of laws. The expectations for informing consent should also be catered to the children’s needs and comprehension abilities.

Conclusion

Privacy rights are important in both the physical and virtual worlds. The idea of “a reasonable expectation of privacy” does not fully contend with complexities of the digital age like varying digital literacy rates, mixed financial and other incentives in society, and rapidly evolving technology. In its place, the notion of a subjective notion of privacy individualized through informed consent emerges as the most promising tenet of modern privacy theory.

Endnotes

1 “Privacy.” Stanford Encyclopedia of Philosophy, revised January 18, 2018. https://plato.stanford.edu/entries/priva…

2 “Fourth Amendment.” Legal Information Institute, Cornell Law Schoolhttps://www.law.cornell.edu/constitution…

3 “Charles KATZ, Petitioner, v. UNITED STATES.” Legal Information Institute, Cornell Law Schoolhttps://www.law.cornell.edu/supremecourt…

4 Ibid.

5 Horrigan, John B.. “Digital Readiness Gaps.” Pew Research Center, September 20, 2016. https://www.pewresearch.org/internet/201…

6 Stewart, Emily. “Lawmakers seem confused about what Facebook does — and how to fix it.” Vox, April 10, 2018. https://www.vox.com/policy-and-politics/…

7 Kang, Cecilia and Kenneth P. Vogel. “Technology Giants Amass a Lobbying Army for an Epic Washington Battle.” The New York Times, June 5, 2019. https://www.nytimes.com/2019/06/05/us/po…

8 Ceglowski, Maciej. “The Moral Economy of Tech.” Idle Words, June 26, 2016. https://idlewords.com/talks/sase_panel.h…

9 “Charles KATZ, Petitioner, v. UNITED STATES.” Legal Information Institute, Cornell Law Schoolhttps://www.law.cornell.edu/supremecourt…

10 “The right to privacy in the digital age: Report of the Office of the United Nations High Commissioner for Human Rights.” United Nations Human Rights Council, Twenty-seventh session, June 30, 2014.

11 Laudon, Kenneth C.. “Markets and Privacy.” Association for Computing Machinery. Communications of the ACM; Sep 1996; 39, 9. Pg. 97.

12 Gramlich, John. “10 facts about Americans and Facebook.” Pew Research Center, June 1, 2021. https://www.pewresearch.org/fact-tank/20…

13 “Percentage of persons age 3 and over who use the Internet anywhere and who use the Internet at selected locations, by selected characteristics: 2011 and 2017.” National Center for Education Statisticshttps://nces.ed.gov/programs/digest/d18/…

14 Aiken, Mary. “The Kids Who Lie About Their Age to Join Facebook.” The Atlantic, August 30, 2016. https://www.theatlantic.com/technology/a…

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