“For me, trust has to be earned. It’s not something that can be demanded or pulled out of a drawer and handed over. And the more government or the business sector shows genuine regard and respect for peoples’ privacy in their actions, as well as in their word and policies, the more that trust will come into being.” Dr. Anita L. Allen
Dr. Anita Allen serves as Vice Provost for Faculty and Henry R. Silverman Professor of Law and Philosophy at the University of Pennsylvania. Dr. Allen is a renowned expert in the areas of privacy, data protection, ethics, bioethics, and higher education, having authored the first casebook on privacy law and has been awarded numerous accolades and fellowships for her work. She earned her JD from Harvard and both her Ph.D. and master’s in philosophy from the University of Michigan. I had the opportunity to speak with her recently about her illustrious career, the origins of American privacy law and her predictions about the information age.
Q: Dr. Allen, a few years ago you spoke to the Aspen Institute and offered a prediction that “our grandchildren will resurrect privacy from a shallow grave just in time to secure the freedom, fairness, democracy, and dignity we all value… a longing for solitude and independence of mind and confidentiality…” Do you still feel that way, and if so, what will be the motivating factors for reclaiming those sacred principles?
A: Yes, I believe that very hopeful prediction will come true because there’s an increasing sense in the general public of the extent to which we have perhaps unwittingly ceded our privacy controls to the corporate sector, and in addition to that, to the government. I think the Facebook problems that had been so much in the news around Cambridge Analytica have made us sensitive and aware of the fact that we are, by simply doing things we enjoy, like communicating with friends on social media, putting our lives in the hands of strangers.
And so, these kinds of disclosures, whether they’re going to be on Facebook or some other social media business, are going to drive the next generation to be more cautious. They’ll be circumspect about how they manage their personal information, leading to, I hope, eventually, a redoubled effort to ensure our laws and policies are respectful of personal privacy.
Q: Perhaps the next generation heeds the wisdom of their elders and avoids the career pitfalls and reputational consequences of exposing too much on the internet?
A: I do think that’s it as well. Your original question was about my prediction that the future would see a restoration of concern about privacy. I believe that, yes, as experience shows the younger generation just what the consequences are of living your life in the public view and there will be a turnaround to some extent. To get people to focus on what they have to lose. It’s not just that you could lose job opportunities. You could lose school admissions. You could lose relationship opportunities and the ability to find the right partner because your reputation is so horrible on social media.
All of those consequences are causing people to be a little more reserved. It may lead to a big turnaround when people finally get enough control over their understanding of those consequences that they activate their political and governmental institutions to do better by them.
Q: While our right to privacy isn’t explicitly stated in the U.S. Constitution, it’s reasonably inferred from the language in the amendments. Yet today, “the right to be forgotten” is an uphill battle. Some bad actors brazenly disregard a “right to be left alone,” as defined by Justice Brandeis in 1890. Is legislation insufficient to protect privacy in the Information Age, or is the fault on the part of law enforcement and the courts?
A: I’ve had the distinct pleasure to follow developments in privacy law pretty carefully for the last 20 years, now approaching 30, and am the author or co-author of numerous textbooks on the right to privacy in the law, and so I’m familiar with the legal landscape. I can say from that familiarity that the measures we have in place right now are not adequate. It’s because the vast majority of our privacy laws were written literally before the internet, and in some cases in the late 1980s or early 1990s or early 2000s as the world was vastly evolving. So yes, we do need to go back and refresh our electronic communications and children’s internet privacy laws. We need to rethink our health privacy laws constantly. And all of our privacy laws need to be updated to reflect existing practices and technologies.
The right to be forgotten, which is a right described today as a new right created by the power of Google, is an old right that goes back to the beginning of privacy law. Even in the early 20th century, people were concerned about whether or not dated, but true information about people could be republished. So, it’s not a new question, but it has a new shape. It would be wonderful if our laws and our common law could be rewritten so that the contemporary versions of old problems, and completely new issues brought on by global technologies, could be rethought in light of current realities.