Big Data and Privacy

Concerns about the erosion of the boundaries of individual privacy are widespread, it seems. They should be. A combination of global politics and rapid advancements in technology have made possible the monitoring of individual habits, preferences and activities, both online and off, on a much wider scale than most people seem aware of until recently. Such practices would have been viewed as shocking and near Orwellian not so very long ago. Some of it is benign and could be viewed as extensions of long accepted practices both by governments and private sector businesses interested in gaining an edge in the marketplace.

Some of it falls into a grayer area that could be interpreted as surveillance, or contains the possibility for that. Depending on how much you trust the government to do what it says it's doing, that could be viewed as responsible behavior designed to protect citizens from a terrorist attack. Nevertheless, the potential for abuse of that information is clearly there.

There are certain realities that many of us are going to need to come to terms with and are driving a redefinition of privacy and the potential of unwanted government and private sector intrusion into our lives. Part of it is technology: namely, the cost of storing data and the increase in the speed of computer processing power. The former has fallen precipitously over the past 20 years. Those who need it can buy data storage for a tiny fraction of what it would have cost only a few years ago. Meanwhile, the rate at which this data can be processed and broken down into usable clusters by analysts seeking answers to questions has continued to increase exponentially as predicted under the famous Moore's Law; doubling roughly every 18 months or so.

Add in 9/11, the global war on terror, and the justification for collecting such data was established. It's a tricky, if not impossible, balancing act. What should the government do to forestall another 9/11-style attack? Had the sophisticated data collection we have acquired and developed in the past 12 years existed then, those terrorists might well have been stopped. Would we think that's a good trade off? Three thousand lives, two major buildings, untold trillions of dollars, two wars, hundreds of thousands more lives, mostly those of innocent civilians, plus military casualties?

Put that way, the surveillance state and the Internet monitoring doesn't seem like such a bad trade. On the other hand, it didn't nab the Boston Marathon bombers in time, either.

Another component of this puzzle is that the constitutional interpretations of privacy have lagged far behind the technological explosion we've witnessed in recent years.

As professor Paul Rosensweig of the George Washington University Law School points out in a recent lecture on cybersecurity published by The Great Courses, most U.S. case law on privacy issues was last decided in the 1970s; eons ago in the computer age. And contrary to what many may think, the last time the U.S. Supreme Court visited this question, it held that the Fourth Amendment to the Constitution doesn't protect individuals if they voluntarily disclose information to other third parties. The catch is, we may not always be aware of when we are "voluntarily" disclosing that information to third parties, and that those third parties (like Facebook, or Google) might share it further. Should they share it with the government?

And beyond that lies the issue of the global, international aspect of the Internet and the collection of "Big Data." Is it within the control of the U.S. government if the data is collected here but stored on a server in another country? Or vice versa?

Is it also an issue or not that the surveillance program the National Security Agency implemented only captured so-called "meta data" - that is, the fact that someone called someone else and not the content of that conversation? By using algorithms to build patterns, such data could point to suspicious activity and give law enforcement a heads up to forestall something that might be brewing.

Or might not be.

Many have also been spooked by the private sector's increasing use of big data as well. Many readers have no doubt had the eerie experience of noticing ads for cars, to take one example, pop up on their Facebook or Google pages after a round of visiting automobile websites. Your web surfing patterns aren't anonymous and yours alone.

Marketers want to know what web sites you like to visit, so they can tailor the ads you see to what they think reflect your interests. Now we also learn that some, and typically larger, bricks and mortar stores are also getting into the act, using cameras to track your moves around the counters and departments to get a sense of what appeals to shoppers, collectively and individually. Is it all part of legitimate market research to determine what customers want? Should customers know that it's going on? That would seem like the honest and transparent thing to do.

But the big issue here for Americans and those concerned with issues of justice, fairness, privacy and the relationship between individual liberty and state power is to what lengths are the government and increasingly, the private sector, entitled to go to learn about our habits and patterns. Is it OK for them to learn about some of our potentially unusual habits?

Or do we have to simply re-calibrate our expectations around that?

Is what we mean by privacy today something more akin to what could be described as "anonymity," where there's a middle ground between outright observation and our identity and intentions? That's another point made by Rosensweig in his lecture on cybersecurity published by the Great Courses.

One thing is certain - this genie is now long out of its bottle. There is no putting it back in. We are in a new era when it comes to privacy and technology, and we will probably have to adjust to that.

Is this progress?


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