Privacy and freedom of expression can't always coexist

Tools

CAMBRIDGE, MASS.--Privacy protections and freedom of expression can reinforce each other but also conflict, panelists said during a Nov. 9 symposium on privacy and technology held by the Harvard Law Review.

The right of people to be private in their knowledge and opinion-making process--what Washington University law professor Neil Richards dubbed "intellectual privacy"--is important because surveillance isn't neutral. It has a power dynamic that causes people who are being watched to act differently, Richards said, and that has chilling effects on freedom of expression.

Defining harms suffered from violations of intellectual privacy in First Amendment terms could also open the door to lawsuits against federal surveillance programs that struggle for standing when framed as a Fourth Amendment challenge, since First Amendment doctrine permits "facial challenges to all types of things," Richards said.

Richards said the federal government should be forced to disclose much more information about its secret surveillance programs; the existence of those programs should not be a secret, he said.

"If it comes down to a value choice between 'We must disclose slightly more details about government surveillance programs...and maybe there are a few more terrorist attacks…it's the price we have to pay for living in a free society," he added.

Tim Wu, a Columbia law professor, argued during the symposium that the impetus behind a strong 19th century philosophical emphasis on freedom of expression would in the 21st century lead to a greater emphasis on privacy.

In the 19th century, people lived in a "speech poor, speech restricted environment and a privacy rich environment," Wu said.

"It was easy to be private, because it was hard to figure what people were doing, but there were more barriers to speaking because of social customs being even stronger and just straight out government censorship being much stronger," he said, adding that today, "We live in an environment that's almost precisely the opposite."

The antidote to the type of conformity that John Stuart Mill railed against in the 19th century was more unrestricted speech, whereas in the 21st century, it's more privacy, Wu said.

Many intuitively believe that networking technologies are an obstacle to conformism, but with every aspect of life increasingly assuming an online social dimension, "our current configuration of network technologies creates a powerful conformity," Wu added.

For more:
- listen to recordings to the Harvard Law Review privacy and technology symposium

Related Articles:
Solove: Privacy regulation a failure
Zittrain: Peer-to-peer transactions risk privacy
Supreme Court hears oral argument in FISA Amendments Act standing suit