It's Not Too Late: You Better Fight for Your Right to Privacy

The pervasive surveillance state isn't inevitable unless we give up on opposing it.

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Adam Mirowski/Flickr

In the early days of the Internet, "what people found most striking about online life was how anonymous it seemed -- all those chat rooms and comment sections, aliases and handles and screen names," a keen-eyed Ross Douthat observes. But now, he says, "it isn't that the Internet has been penetrated by the surveillance state; it's that the Internet, in effect, is a surveillance state." Each of us parts with our privacy in exchange for the convenience of a smartphone and web-based email, and we chat with friends and loved ones as frankly as we would in person.

"It is at least possible to participate in online culture while limiting this horizontal, peer-to-peer exposure," Douthat continues. "But it is practically impossible to protect your privacy vertically -- from the service providers and social media networks and now security agencies that have access to your every click and text and e-mail." Douthat doesn't think the surveillance state of the future will be as bleak as the one in 1984, but he does think its existence is assured. "Radicalism and protest will seem riskier, paranoia will be more reasonable, and conspiracy theories will proliferate," he predicts. "But because genuinely dangerous people will often be pre-empted or more swiftly caught, the privacy-for-security swap will seem like a reasonable trade-off to many Americans -- especially when there is no obvious alternative short of disconnecting from the Internet entirely. Welcome to the future. Just make sure you don't have anything to hide."

Perhaps that is the future. But I grow frustrated with everyone resigning themselves to its inevitability. Nowhere is it written that we cannot protect our privacy going forward. As fully as was typical before the Internet era? Perhaps not. But can we avoid a pervasive surveillance state?

It is, if citizens shelve the present defeatism.

It isn't inconceivable to imagine significant advances in encryption, and a public thirst for dealing with firms who offer it; or a scandal that precipitates a new Church Committee report; or vesting Americans with a property right in their data; or mandating that Internet firms annually wipe clean most of what they collect; or simply putting severe restrictions on the types of data that government is permitted to access. I am painfully aware of the obstacles to these measures. I understand the seductive logic of permitting the security state to grow and grow.  
There is, however, precedent for protecting privacy in ways that would seem to make no political sense. Think of attorney-client privilege. Or Miranda warnings. Or even laws and norms that govern the privacy of what one sends in the mail or stores in one's liquor cabinet or dresser. Perhaps millennials, raised on Facebook, are destined to discount the importance of privacy, but it seems as plausible that they'll one day be far more politically supportive of protecting Internet communications than today's 60-and-70-something voters who can't really conceive of what's at stake, having never made themselves particularly vulnerable via a digital trail.

There is, finally, the fact that seemingly improbable change does happen -- that sustained campaigns can, in fact, persuade people. In the space of two generations, America went from Jim Crow to a black president. In the space of one, it went from criminalized sodomy to gay marriage. The temperance movement managed to amend the U.S. Constitution and outlaw alcohol. The repeal movement managed to amend the Constitution yet again to restore its legality.  

Even if the odds against robustly protecting digital privacy -- for that matter, all privacy -- are long, Americans facing even longer odds have succeeded before in bringing about social or legal change, and even in amending our founding document. Of course, the fact that motivated people can bring about change means that anti-privacy folks could also succeed even more fully than we can now imagine -- which is only more reason for everyone who grasps the value of privacy and the dangers of the surveillance state to keep pushing until it is rolled back and tamed.