“Privacy may actually be an anomaly,” said Vint Cerf, one of the architects of the Internet, at an FTC workshop on the Internet of Things on Tuesday. Cerf, who’s currently Google’s Chief Internet Evangelist, argued that privacy is a construct of the modern industrial age. In the past, his thinking goes, people lived in small self-contained villages, where pretty much everyone knew who was dating the baker’s daughter and what the sheriff had for lunch. It is only when populations started migrating en masse to cities that anonymity emerged as a byproduct of urbanization.
The view of privacy as an anomaly is not new, particularly among Silicon Valley entrepreneurs, who time and again express a cavalier approach to what is a fundamental, deep-rooted social, moral and legal value. It is however wrong, and may lead businesses and governments astray in making weighty policy choices.
Privacy has doctrinal roots that go back to the Old Testament. As the biblical Israelites wandered through the desert for decades, they pitched tents along the way, learning with time to set their dwellings so that the openings of the tents did not face each other. When Balaam was sent to curse the Israelites, he looked upon their camp and blessed them instead, saying, “How goodly are your tents, O Jacob, your dwellings, O Israel!” (Numbers 24:5). The Talmud teaches that he praised the dwellings of the Israelites because their architecture preserved domestic privacy.
Similarly, Cicero, the Roman philosopher and orator, famously exclaimed, “What is more holy, what is more carefully fenced round with every description of religious respect, than the house of every individual citizen? Here are his alters, here are his hearths, here are his household gods, here all his sacred rites, all his religious ceremonies are preserved. Thus is the asylum of everyone…” (Marcus Tullius Cicero, De Domo Sua 109).
Ancient privacy extended not only to the sanctity of the home but also to the secrecy and confidentiality of communications. In 1,000 AD, the synod of Rabbeinu Gershom issued its prohibition against the opening or reading of another person’s letters. This laid the foundation for modern wiretapping laws, down to the evergreen distinction between communication contents (what’s written in a letter) and traffic data (what’s on the envelope).
But privacy is ingrained much deeper than ancient Jewish or Roman law. As Alan Westin writes in his 1967 classic Privacy and Freedom: “studies of animal behavior and social organization suggest that man’s need for privacy may well be rooted in his animal origins, and that men and animals share several basic mechanisms for claiming privacy… One basic finding of animal studies is that virtually all animals seek periods of individual seclusion or small-group intimacy.”
This zone of intimacy, which primates use for activities like breeding and toileting, is essential for the development of human individuality, intimacy and free will. As pre-modern philosopher Jeremy Bentham aptly illustrated with his Panopticon, a notional construct of a pervasively surveilled prison, persistent invasions of privacy breed fear, discipline and conformity. Totalitarian regimes implement this learning, deploying mass surveillance to stifle free speech, religious freedoms and political affiliation. And Julie Cohen has shown that privacy does not obstruct but rather ferments innovation, and consequently economic growth.
To be sure, technology and economic progress are pushing hard against existing social norms. In an article titled “A Theory of Creepy,” which will be published shortly in the Yale Journal of Law and Technology, Jules Polonetsky and I discuss strategies for navigating this treacherous, disjointed socio-technological terrain. Yet swiping privacy aside as an afterthought is no solution. Privacy is no anomaly. It is a deeply embedded construct, which evolves with time but is here to stay.