// Our evolving understanding of "privacy"
Warren remarked that in law school, she was struck by the fact that “there is no defined right to privacy.” The fluidity of our understanding of privacy stems not just from the lack of a commonly agreed-upon definition but also from technological breakthroughs that have challenged us to examine privacy from new angles.
Cukier explained that in 1890, Louis Brandeis, a lawyer and U.S. Supreme Court Justice, and Samuel D. Warren II, another prominent lawyer, penned an essay called “The Right to Privacy.” It would become one of the most influential essays in the history of American law.
The article was written, in part, as a response to a new technology at the time: the camera. The authors saw photographs (from a nosy tabloid press) as an invasion of one’s privacy and suggested that privacy is “the right to be let alone.” As Cukier described, the right to be let alone is “not an informational right, but a physical right.”
In the panel, Cukier and Whittaker built upon this historical definition to suggest that privacy is something more expansive and even physical than how it’s currently conceived. It is the right to intimacy, the right to love, the right to explore ideas, the right to experiment without retribution or shame, and the right to dignity and liberty.
This embodied definition gets flattened when translated into online spaces. Today, online privacy tends to be more narrowly-defined around information: what information to share and what information to withhold.
// The uphill battle to true privacy
What has flattened and sterilized our understanding of privacy is an internet ecosystem built by Big Tech that seeks to limit individual privacy in the interest of surveillance capitalism—the collecting of data for profit.
“We live in a world where we are more surveilled and classified than any other time in human history,” Whittaker said. It’s no wonder an embodied and more expansive definition of privacy suffers when online platforms’ set their default settings to unsecure and open.
In the early days of the internet, Whittaker said that regulators allowed two “original sins” that have become major threats to privacy today.
- Lawmakers in the 1990s imposed few restrictions on private companies surveilling their internet users. The lack of consequences for this surveillance created foundational precedents that the ecosystem of commercial actors continues to use today.
- Lawmakers supported and endorsed advertising as a primary business model of the internet. Pushed by the advertising industry, this created a “huge incentive to gather more data and open the floodgates.”
Cukier noted that in the U.S., surveillance happens every day (the U.S. Postal Service photographs every piece of mail sent, and government agencies like the NSA have been accused of improperly collecting phone call data from U.S. citizens), but still represents a threat to individual privacy.
Fundamentally, as Whittaker said, in today’s tech world, “there is no business model that provides the level of revenue that is expected in tech for meaningfully private communications.” So what do we do? Is there a way forward?
// Reimagining data rights
In the power struggle between Big Tech and everyday people, the focus has often been on data ownership—who controls and profits from our information. But Whittaker offers a sharper critique: The real issue isn’t just who owns our data, but that it exists at all. True privacy isn’t about managing or reclaiming data—it’s about ensuring it was never collected in the first place.
“We need to rethink what data is and de-naturalize this idea of data as an organic off-gas of ourselves that has been captured in a jar by these companies. A lot of data is methodologically shoddy answers to questions that help sell ads and not actually an organic production of who we are.”
Alternative messaging platforms like Signal do this. They try to capture as little data as possible about their users because they see it as a fuller, more embodied representation of privacy. That is, the right to be let alone.
This is where the heady, more expanded concept of privacy gets translated into code and policy: by choice or law (like last year’s American Privacy Rights Act), platforms could not collect any data about users. The result would require a significant shift in the advertising-based business models that have become so popular (Signal, for example, is a nonprofit). Still, it could lead to innovations in how platforms make money and share profits:
- Platforms like X and YouTube charge for annual subscriptions that exempt users from watching ads (though such platforms still collect data).
- Platforms could share advertising profits with the people who consume those ads (This is how WeAre8 has designed its platform: its users (their term is citizens) get paid to watch ads).
The current tech business models force a tradeoff between privacy and profit. The more we embrace a different definition of privacy, the less profit there is for the platforms that generate revenue through targeted ads.
But that’s just the current status quo. Warren ended the session by saying that there are different business models—an entire fair data economy—where the profits are more “reasonable” (than the Big Tech standards) and more distributed among the people who create the value.
There’s never been a more promising time to build new business models, technologies, and innovations that unite privacy and profit.
We’d love to hear your perspective — reply to this email to share your thoughts.
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