Five Things We Learned About Digital Privacy In The Second Episode Of “Case In Point”

Do we have a "right to be forgotten"? Find out what you missed on the second episode of "Case in Point."

Case in Point is a unique new podcast series that takes a dynamic approach to podcasting in the law.

What do we mean when we talk about our right to privacy? Anita Allen (Professor at Penn Law; Vice Provost for Faculty at Penn; author of Unpopular Privacy: What Must We Hide?) and Lisa Sotto (Partner, Hunton & Williams; Chair, U.S. Department of Homeland Security's Data Privacy and Integrity Advisory Committee, 2012-present) examined trends in privacy and cybersecurity to shed light on the intersection of law and technology.

Here are some of the revelations from Case in Point's second episode, "Understanding new threats to privacy and cybersecurity."

1. We actually have a huge number of privacy rights in American law.

nytimes.com

Between a combination of federal statutes, specific privacy acts, electronic communication agreements, state common law, and more, we actually have a significant legal coverage when it comes to privacy. Allen explains that our main rights to privacy are: information privacy, physical privacy, privacy of choice and decision.

2. Privacy is seen as a consumer right in America versus a human right in Europe.

blogs.microsoft.com

As early as 1890, the idea of the "right to privacy" came up in the Harvard Law Review. As Allen explains, Louis Brandeis used to speak of privacy in "loftier terms" as a fundamental human right and how it goes to "core of who we are as human beings."

Today most of the world views privacy as an essential human right, but Sotto emphasized that the current American stance on privacy law is usually viewed primarily as a consumer/sectoral right.

3. There are three buckets of “bad actors” when it comes to online privacy.

wired.com

The main categories of privacy infringers are: Hacktivists, criminal hackers, and APT.

Hacktivists = subversive users of computers and computer networks to promote a political agenda.

Criminal hackers = hacking with the goal of criminal intent or financial gain.

APT = "advanced persistent threat" means stealthy and continuous computer hacking processes, usually committed by nation states.

4. Contrary to modern narratives, privacy isn’t necessarily less important than it used to be.

We used to think of privacy in terms of secrecy, but that is no longer true today. Today, privacy is about control over our data and transparency and a modicum of individual control over that data.

It is hard for us to understand the many ways in which our informational privacy is at risk or how we as individuals can protect our privacy. Allen says, "Privacy is as important now as it ever was but people are also very dependent now on technology and cannot and do not know how to protect that privacy."

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Just because modern society shares information more freely through new technology and social media does not mean privacy is not valued or protected. Oversharing does not necessarily equate to lack of privacy.

5. It is difficult to ensure a “right to be forgotten.”

mashable.com

In the past, it was impractical to access personal data. Our information was spread out in papers and files held in offices and filing cabinets all around the world. With the rise of digital technology, it is now easier to access and store centralized personal information.

People are realizing they don't want their every move to be documented. Many feel there should be a "right to be forgotten" as a matter of law. Sotto explains, "The right to be forgotten is a laudable concept that is virtually impossible to implement. We have to think very hard how to code this idea into law. "

reddit.com

It's one thing to ask Facebook to take down a page. It's another to ask Google to remove every instance of your information from the search engine. Allen cites legal theorist Judge Richard Posner, who argues that people don't have a right to secrecy. For example, say that you have committed a crime and want to hide that information. In Posner's view, the general public has a right to know so that they may protect themselves from you.

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