Taking Bearings

Cultures and individuals differ over what information should be private. Romantic interests guarded as private in cultures emphasizing individual privacy are open for family criticism and community commentary in communal cultures. Concepts of privacy also evolve. Privacy issues, frequently the subject of intense media coverage, span a spectrum of interests ranging from the surveillance of public spaces with closed-circuit television to the use of credit and financial data. Technological advances create new privacy concerns. Compilation of DNA databases, control of biometric data, and the need for protection against genetic discrimination now fuel passionate debate.

Privacy concerns can also pack a visceral punch.  Speaking to the U.S. News and World Report in November 2008, Francis Collins, then director of the National Institutes of Health, National Human Genome Research Institute, expressed fears that privacy concerns, especially concerns about insurer misuse of data, kept patients from seeking early medical care, effectively thwarting decades of medical advances.

While the United Nations Universal Declaration of Human Rights broadly states: “No one shall be subject to arbitrary interference with privacy… nor to attacks upon honor and reputation,” other codes and writings express more specific concerns. The European Union Charter of Fundamental Rights, for example, guarantees genetic privacy and prohibits genetic discrimination.

Lofty intentions, however, do not necessarily translate into coherent law or practice.

In the United States, there is no express Constitutional right to privacy. Concepts of privacy including a “zone of privacy” advanced by Justice William O. Douglas are cobbled out of rights articulated in multiple Amendments. Alas, Congressional passage of protective laws has a history of being reactive rather than proactive. For example, both the 1974 Privacy Act and 1976 Foreign Intelligence Surveillance Act passed following multiple media disclosures of surveillance and intelligence abuses.

Conflicts among rights to privacy, freedom of speech, due process, and other rights find seemingly endless new facets and forums. In 2009, a court ordered Google to identify a blogger who used allegedly insulting language about fashion model Liskula Cohen. In 2010, the Lower Merion School District near Philadelphia was hit with a class action lawsuit alleging violation of an eyeful of privacy and civil rights violations stemming from admitted secret monitoring of students via remotely activated webcams in school-issued laptops. In a rarity for a polarized Court, the United States Supreme Court recently ruled unanimously in City of Ontario v. Quon that Fourth Amendment protections from unreasonable search did not prohibit employers from monitoring employee’s text messages under certain conditions. Congress huffs, puffs, and proposes protective legislation when Transportation Security Administration policies result in pat-downs of the elderly and small children. High-profile phone-hacking scandals tied to journalists working for a string of Rupert Murdoch-owned newspapers spark global media and public outrage.

Regardless, the erosion of privacy continues. Fears over terrorism tug at cherished civil liberties and a competitive modern media — as ethically diverse as humanity itself — effectively makes Justice Brandeis’ concept of privacy as “the right most valued by civilized people,” quaintly archaic.

Facebook might freeze an offender’s account, YouTube might yank it, Pinterest can pull it down, but someone with a server in Serbia will ensure embarrassing material stays online, eventually to worm its way back into the collective consciousness.

Whether tinker, tailor, soldier, or spy — and whatever the secrets — privacy professionals assume all secrets will eventually play on some stage. All classified information, even the most restricted material, has an intrinsic longevity. If captured and subjected to torture, the realistic goal is simply to withhold information, to “bury it deep” long enough that time diminishes the harm of disclosure. In the digital age, secrets simply travel farther and faster, and while they exist in a cosmos of information noise, deft searching and Internet archives render indiscretions effectively eternal.

Both lies and the truth can hurt. Laws against defamation and policies that prohibit invasion of privacy, if applicable and accessible, can only partially compensate or repair a publicly fractured image. Justice can also be life-consuming and prohibitively expensive, and in a media age celebrating universal access, the Society of Professional Journalists’ ethical code covers a smaller share of those who identify themselves as journalists.

In such a milieu, the only real protections are based in fundamentals, as David Kirkpatrick articulated in his recent book, The Facebook Effect. Kirkpatrick argued that “radical transparency,” a core value of Facebook’s founders, offers the only real recourse to inevitable invasions of privacy. Radical transparency asserts that everyone has but one personality, not one tailored for LinkedIn that diverges significantly from what friends find at the pub. Radical transparency also argues that the best way to deal with the loss of privacy is to be honest, openly admit flaws, genuinely ask for forgiveness, repent, and make right

If Kirkpatrick is correct, humanity has come full circle. Radical transparency protections derive from the earliest articulations of ethics found in the teachings of all major religions and Humanist philosophy. If followed, the prescription offers protection against failures in Facebook privacy controls, and offers more practical protection to invasions of privacy than the best-intended laws or professional codes of media ethics.