Though hard to imagine today, federal law once prevented anyone from using the U.S. Postal Service to send contraceptives. In fact, the same law prevented people from using the Postal Service to send ads of contraceptives or even educational materials about them!
This law was finally deemed unconstitutional in 1965. In Griswold v. Connecticut, the U.S. Supreme Court found the law violated not the right to contraceptives – or even information about contraceptives – but the right to privacy.
Turns out the whole privacy thing isn’t explicitly discussed in the U.S. Constitution despite an amendment about search and seizure and all. So Griswold v. Connecticut – which gave the right to privacy to married couples – ended up being a very important precedent. Because someone figured out that unmarried couples might need contraceptives even more than married ones. So in 1972, Eisenstadt v. Baird established that unmarried couples could have birth control as well – again on the basis of a right to privacy. The 1965 Griswold v. Connecticut privacy case also became the bedrock of legal justification for the right to an abortion (Roe v. Wade, 1973), to homosexual contact (Lawrence v. Texas, 2003), and to same-sex marriage (Obergefell v. Hodges, 2015).
All this freedom of sexual expression is legally based on the right to privacy. Yet most people who would aggressively defend the missionary position that the state cannot look into their bedroom will merely shrug when told the state can violate them digitally. When it comes to the Internet, many believe: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Which is the exact statement Eric Schmidt made before a live audience while he was Google’s CEO. This is the same Eric Schmidt who tried to wipe a political donation he made (which is legally public information) off Google’s search engine. (Google wouldn’t allow the deletion.)
When using a free Internet service, don’t expect “free” to mean “without consequences.” The price of “free” gmail is Google reading your email. The price of Google’s “free” browser, Chrome, is Google tracking all your Internet activity. The price of “free” Google search is Google accumulating your queries to be data mined and interpreted.
Okay. So let’s find a third-party browser that is not made by Google (Chrome), Microsoft (Explorer), or Apple (Safari). We’ll also include a browser add-in which blocks ads and widgets further reducing our digital exposure. And toss in a search engine which let’s us go about our search business in stealthy peace. That takes care of our browser and search engine keeping notes on us.
But what about websites spying on us? For example, Facebook captures your keystrokes before you hit “post.” That’s right: anything you put in that white box will be seen (and stored) by Facebook even if you delete it before posting and it’s not seen by anyone else. Your Facebook friends can betray your privacy, too. Facebook encourages them to tag you in pictures thereby providing Facebook with a better facial recognition of you. And remember, kids, it’s all just innocent, social fun!
Okay. So let’s stay off social media altogether.
Do you have a smartphone? Guess who writes the software on the smartphone? Cough (Google)! Cough (Apple)!
Anything you ask Siri gets sent to Apple’s servers for interpretation (even if you don’t use the Apple browser). And the Apple servers not only have your request, they have the location of where you were when you asked. A constantly evolving dossier – with new geo-tag improvements!
Okay. Let’s get really protected and step away from smartphones, too!
You are still digitally poked and prodded. Half of the United States population is in an FBI facial recognition database based on our driver’s license photos. Edward Snowden revealed the government is in collusion with the large Internet and telecommunications companies, trading collected information for favorable business legislation. Websites will aggregate public data – like your address that used to be “public” in principle but in reality was on a property deed or a business license kept in the dingy part of the city’s hall of records – and blast it out to the entire planet by Internet search engines.
And my favorite: friends and family use the mobile apps which always find reasons to access the phones’ address books and grab the cell numbers, ages, and other information stored there. My efforts to protect my personal information against intrusion are destroyed when the same information is found unprotected on the phones of friends and family – because they don’t worry about their privacy. I wish I could tell these people: “Delete me from your phone. Let me enjoy my privacy,” but that’s both foolish and impractical. Both I and the app developers know social media is based on social pressure.
So, imagine a world where wire-tapping does not require a warrant and is routine. That’s what the digital age is like. The potential for spying (with an unprecedented ability to store data for later mining) is so pervasive people naturally give up and try to console themselves with: “I’ve got nothing to hide.”
When a gauntlet is thrown down that recklessly, it’s hard to resist:
“Oh, really? What’s your annual salary?”
And then we discover that there is something to hide after all.
But occasionally, a person will state their salary. So the next question is:
“And your age is…?”
Which is why actors cheered when California Governor Jerry Brown recently signed a law stating that actors’ ages must come down from entertainment websites. Upon request. That’s right. Opting-in is still the default.
And while this is progress, let’s remember how easy it is to find aggregated people-database sites with public data (like ages or – for stalkers – addresses). If you wish to opt-out of these sites, you first have to log in – the companies encourage you to use your content-rich Facebook account for this purpose. And if you instead log in with an email, you often need to provide the site with your cell phone number to “confirm” your opt-out.
The phishing never ends.
Internet privacy is a large problem and not limited to actors or entertainment sites. But it can be fixed if there is the political will to do so. For example, our strict rules about tapping into analog communications could serve as a guide to digital ones. It’s a societal expectation, after all, that the government doesn’t open letters sent through the Postal System. An Internet search on contraceptives is not a shameful thing. But that shouldn’t mean I have to let everyone know I’m performing one either.