Privacy, protests, power & the pandemic

Privacy: from its historic roots to current day in the eye of a political, legal and cultural storm

The right to privacy

Privacy. A fundamental right to be let alone. A concept intimately anchored in what it means to be human, and what it means for nation states to have self-determining citizens.

A deeply personal and cultural construct, our own views on privacy are informed by our individual life experiences; privacy relates to our sense of self, our nature (how introverted or extraverted we are). Privacy can allow us to establish and manage boundaries, to find space and solace, to retreat to our private realm.

In other words, privacy matters.

Privacy in a pandemic

Now, amid a global public health crisis, privacy has taken on new significance. We’ve never been more connected, yet never more isolated. The power imbalances between the state and the individual, between big tech and nations, between those who have access to trusted information and those who don’t, has been brought into sharp focus. The right to privacy can help the individual redress some of these global power shifts.

In this article, I reflect on privacy’s past to give context to current tech, political and human rights debates, and the shift in the legal landscape towards increased privacy regulations and public consciousness of privacy.

A brief history of privacy

The genesis

The history of privacy encompasses the evolution of civilisation, and our concepts of public and private spaces in our bodies, minds, cities, architecture, families and homes. Privacy has tracked our own history, as mankind has shifted from very public existences to build internal walls, have solo beds, read in silent contemplation and have locks on our bathroom doors.

The philosophical view: privacy’s alignment to democracy

“The privacy issue can already be seen in the writings of Socrates and other Greek philosophers, when a distinction is made between the ‘outer’ and the ‘inner’, between public and private, between society and solitude” (Jan Holvast, The History of Privacy; Springer)

The evolution of life from public, towards one with more private spaces was influenced by factors such as the Black Death and changing attitudes to public health and hygiene, security and material wealth.

Privacy in the USA

In the late 19th century, two American lawyers, Samuel D Warren and Louis D Brandeis, wrote an article for the Harvard Law Review which set out privacy as the right to be left alone.

“ The idea that a citizen has ‘the right to be let alone’ became part of American cultural identity and today public disclosure of embarrassing private facts is a civil offence if the details are deemed to be non-newsworthy, private and highly offensive to a reasonable person.” (Mark Easton, BBC)

Privacy has since become deeply associated with individual freedom and personal reputation in America. In California, a state with a culture which values liberty, privacy has been an inalienable constitutional right since the early 1970s.

Data protection and privacy in Europe

Privacy and data protection are distinct but closely related terms which intersect at the control of access to and usage of private information, and the respect for human rights.

In Europe, the Charter of Fundamental Rights of the European Union (EU) helps us distinguish the difference:

• Article. 7 of the charter sets out that “Everyone has the right to respect for his or her private and family life, home and communications.” (Source)
• Article. 8 provides for the ‘protection of personal data’ (Source)

When exploring privacy, it’s thus essential to consider the protection of information and specifically the data protection regulation in Europe.

History of data protection regulation

In Europe, the origins of data protection legislation is rooted in addressing past injustices in Europe.

In the 1930s in Germany under the Nazi regime, state control of Information Technology meant that personal data census collection was used and abused as part of a systematic approach relating to the atrocity of the Holocaust.

The building blocks of today’s European institutions were laid in post World War 2 peace time cooperation, as part of European efforts to address these grave injustices.

Recent history

More recently, specifically in the last half century, Europe saw laws in the 1970s and in 1995 the European Union (EU) Directive on Data Protection arrived, which was created as an essential element of EU privacy and human rights law, with safe harbour arriving in 2000 (read more about Safe Harbour and the EU’s Court of Justice’s decision to invalidate it here).

As the global digital economy, IT environment and cyber threat context became more complex with increasingly frequent attacks, so did the need for tighter regulations.

GDPR: a new global baseline

This all culminated in a sea change when the GDPR was adopted in 2016, coming into force on 25th May 2018. The GDPR set a new legal framework and tone for data protection, not just for Europe but beyond, as the ‘new standard’.

By 2023, 65% of the world’s population will have its personal data covered under modern privacy regulations (Gartner)

Many countries across the globe have since adopted ‘GDPR light’ regulations and the trend continues. Organisations now understand that GDPR is not a project to comply with, but that a successful approach demands a programmatic and hollistc approach to implementing Privacy by Design.

Surveillance, breaches, ethics and big data

We have seen seismic technological changes this century, with Google and then Facebook’s arrival and a fundamental shift to software business models, mass adoption of social media, smartphones and data driven economies and societies.

Globally, people have traded their personal information, their privacy, for convenience, usability, or fame.

In 2013, Edward Snowden leaked highly classified information from the National Security Agency (NSA) when he was a CIA employee and subcontractor. His disclosures revealed numerous global surveillance programs, prompting a discourse about national security and individual privacy in the age of the internet.

In 2014, psychologist and author of a book by the same name, Shoshana Zuboff coined the phrase ‘surveillance capitalism’. This refers to the data-hungry business models of tech giants like Google, Facebook and Amazon, in which our data has been progressively extracted and commoditised in exchange for personalised user experiences.

We may now be at an important ethical, legal and societal inflection point for corporate and state surveillance.

Facebook and Cambridge Analytica

In early 2018, news of the Cambridge Analytica breach and scandal broke, involving the misuse of personal data of up to 87 million Facebook users through Facebook’s third party apps; shining a light on privacy, transparency and Facebook’s data driven business model.

The debate around using technology like facial recognition software and algorithms to track us or nudge us into certain behaviours and what that means for our society, democracy and data ethics continues to be an important and a vital subject as technology such as AI continues to advance, whilst regulators scramble to catch up.

2021: where are we now?

Privacy, protests, the press and the pandemic

In the fight to bring the COVID-19 virus under control, the crisis has brought trade-offs between public health and privacy.

We have seen those tensions play out most notably in the Black Lives Matters protests where police used social media content and drones to track down protestors (source), or recently in the UK in the where the rally for Sarah Everard was officially banned which human rights campaigners have argued is part of ‘creeping curbs on the right to protest’ (source).

Privacy is also a feature of high profile celebrity disputes with the press, and can often seem at difficult to reconcile with ‘confessional culture’. One prominent example is recent Meghan Markle and Prince Harry headlines, and their ongoing feud with the British tabloids. The couple notably won their case against the Mail on Sunday, with a judge ruling that the publication of a private letter was an invasion of privacy (source). Markle further underlined her view in her recent interview with Oprah:

“I think everyone has a basic right to privacy. Basic. We’re not talking about anything that anybody else wouldn’t expect.” (Meghan Markle, interview with Oprah Winfrey)

Privacy: in the eye of the storm

Privacy has many layers: it’s a right, it can be an emotional feeling or physical place, it interweaves with personal fears, boundaries and experiences. It’s grounded in our individual, societal and cultural psyches.

There are equally many inter-secting levels to the privacy debate: the legal layer (which sits at the nexus of data protection, social media and tech regulation, freedom of speech and information laws), the ethics of tech innovation, and cultural norms and freedoms. To be understood, privacy needs to be viewed from a macro political, societal and historical lens, as well as a personal one.

The history of privacy is a long one, and in 2021 after a year where we retreated from public to our private spaces in the wake of a global public health crisis, privacy is having its moment. This complex but vitally important concept is right at the centre of a global political, tech, media and legal debate, at the intersection of power fault lines between the state and individual freedoms.

My prediction? This is just the start of a re-framing of what private and shared means online, and how that plays out as we reclaim our public spaces. 2021 is just the start of privacy taking centre stage.

Sorcha Lorimer is the Founder of Trace a Privacy and Data company: we help organisations look after the data the matters and apply Privacy by Design models through our platform, services and learning.