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I have performed significant academic and practical work in the privacy space. The US has a fundamentally different (and, frankly, better) approach to privacy c

I have performed significant academic and practical work in the privacy space. The US has a fundamentally different (and, frankly, better) approach to privacy compared to the EU. The US tends to view privacy, in general, as freedom from unwelcome perception, often construed as "the right to be let alone", following Warren and Brandeis. The EU tend to define privacy as a specific type of control, as "control over how your personal information is collected and used." More recently, the terms "information privacy" or "data privacy" is used to reflect the European approach [1]. I personally detest calling the European approach "privacy" in any manner; it's just data control, plain and simple. Freedom and control are both related to the expression of free will, yet their outcomes are quite different. These two approaches to "privacy" are fundamentally divergent from each other. That being said, a freedom-loving nation must use government to exercise some forms of control. This tension between freedom and control is behind so many conflicts in the world, though I believe it is most pronounced with the issue of privacy, perhaps moreso than even with security. The US government, serving a nation historically oriented toward the maximization of personal liberty, decided that providing strict, well-defined controls on certain types of information is better than not. As a result, three primary FEDERAL data control laws have been enacted: FERPA (educational data), HIPAA (health data), and COPPA (children's Internet data). In addition, some states have passed data control laws, such as California's CCPA. However, the US Constitution provides extremely robust "privacy protections" which do not explicitly refer to privacy, most directly so with the 3rd, 4th, and 5th Amendments, while the 1st, 9th, and 10th are more indirect. The EU, on the other hand, appears to place control as a value of higher importance. As such, they passed the GDPR, though EU-US agreements like Safe Harbor and Privacy Shield attempted to accomplish similar goals in more modest terms. The GDPR is massively complex. I know at least one privacy scholar who believes that machine learning may no longer be viable in the EU because of the GDPR's data reuse provisions. If a data controller needs to get permission from the data producer every time that information is used as part of a machine learning process, ML research may become too burdensome. Now, some European governments state that their citizens "have a right to privacy." This situation highlights the difference between a positive and negative right, which I argue is a meaningful distinction (though not all agree). For example, the US Constitution generally provides rights to citizens in the negative form, such as, "Congress shall make no law...abridging the freedom of speech". A positive form of that same right is Article 35 of the PRC Constitution, which is: "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration" [2]. In the former case, the nation ultimately defines what "freedom of speech" means; in the latter case, the government ultimately defines the meaning of "freedom of speech." Granted, not everyone agrees with this interpretation, but I believe history generally shows this to be true. So, the question is, is a European, positive-right formulation of privacy better for the nation or the government? I argue the government. For these reasons, I cannot stress enough the importance of grasping the difference between the US and EU approaches to "privacy". [1] https://iapp.org/about/what-is-privacy/ https://iapp.org/about/what-is-privacy/ [2] https://constituteproject.org/constitution/China_2018 https://constituteproject.org/constitution/China_2018

mindslight 3y ago
> The US tends to view privacy, in general, as freedom from unwelcome perception, often construed as "the right to be let alone", following Warren and Brandeis Sure, but the US still doesn't have any concrete legal implementation of privacy in general, outside of the three narrowly scoped laws you've listed. There is whole lot of "unwelcome perception" I'd like to avoid of the surveillance industry amassing and acting on dossiers kept about me, yet I've got essentially zero recourse while these companies build what are essentially parallel governmental systems that I'm forced to interact with. In your estimation, what is a workable "negative rights" framing that would allow me to be left alone? Philosophically, I'd say the US's framing of rights has run its course and reached its limits. Not because of the negative framing per se, but rather because it only narrowly construes rights as applying to the de jure government. So complexity-induced contradictions spring up all over the place, as institutions that aren't considered part of the bona fide government have grown large enough to exert coercive power yet don't have to respect our rights. This has led to a dynamic of fascist cheerleading when someone has their natural rights suppressed while interacting with some large business, and supporters line up to say things like "their business their rules" etc.
- waterheater 3y ago
  > In your estimation, what is a workable "negative rights" framing that would allow me to be left alone? I believe the best form is: "Congress shall make no law abridging the freedom from unwelcome perception of the people by any legal entity, foreign or domestic." Note that perception is not just sensing or observation. Sensing is to data as perception is to information. If, say, a home security system captured an image of something deemed inappropriate, it might "avert its gaze" in some way using various technological means, which is covered by "unwelcome perception." However, if using a camera in the home security system proved too perceptually challenging, the system designer might swap out the camera for a different sensor, depending on the intended goals of the system. The goal is not to limit the expression of perception but certain outcomes, just like protecting freedom of speech doesn't focus on the expression of speech but certain outcomes. That formulation should settle out fairly well. Citizens should be protected from both corporations and governments. A government should still be able to conduct a wiretap in the course of an investigation (because committing crimes is unwelcome in our society), yet it should deter any unwelcome whole-of-citizenry surveillance programs. Following the Tenth Amendment, if the citizenry of a particular state or municipality wish for certain types of public surveillance to occur (e.g., police cameras in cities), the people of that polity will need to seek legislation to accomplish such, which is a strength and not a weakness of the Constitution. > I've got essentially zero recourse while these companies build what are essentially parallel governmental systems that I'm forced to interact with. Though you probably won't like this perspective, every interaction with these systems is a choice. My hope is, the above approach makes such choices far less conflicted. > Philosophically, I'd say the US's framing of rights has run its course and reached its limits. Not because of the negative framing per se, but rather because it only narrowly construes rights as applying to the de jure government. The negative framing ultimately works well, but yes, massive corporations have convinced the nation that they are more powerful than governments. A possible solution might be adding "by any legal entity" to existing statements of protections of natural rights.

mindslight 3y ago

> The US tends to view privacy, in general, as freedom from unwelcome perception, often construed as "the right to be let alone", following Warren and Brandeis Sure, but the US still doesn't have any concrete legal implementation of privacy in general, outside of the three narrowly scoped laws you've listed. There is whole lot of "unwelcome perception" I'd like to avoid of the surveillance industry amassing and acting on dossiers kept about me, yet I've got essentially zero recourse while these companies build what are essentially parallel governmental systems that I'm forced to interact with. In your estimation, what is a workable "negative rights" framing that would allow me to be left alone? Philosophically, I'd say the US's framing of rights has run its course and reached its limits. Not because of the negative framing per se, but rather because it only narrowly construes rights as applying to the de jure government. So complexity-induced contradictions spring up all over the place, as institutions that aren't considered part of the bona fide government have grown large enough to exert coercive power yet don't have to respect our rights. This has led to a dynamic of fascist cheerleading when someone has their natural rights suppressed while interacting with some large business, and supporters line up to say things like "their business their rules" etc.

waterheater 3y ago
> In your estimation, what is a workable "negative rights" framing that would allow me to be left alone? I believe the best form is: "Congress shall make no law abridging the freedom from unwelcome perception of the people by any legal entity, foreign or domestic." Note that perception is not just sensing or observation. Sensing is to data as perception is to information. If, say, a home security system captured an image of something deemed inappropriate, it might "avert its gaze" in some way using various technological means, which is covered by "unwelcome perception." However, if using a camera in the home security system proved too perceptually challenging, the system designer might swap out the camera for a different sensor, depending on the intended goals of the system. The goal is not to limit the expression of perception but certain outcomes, just like protecting freedom of speech doesn't focus on the expression of speech but certain outcomes. That formulation should settle out fairly well. Citizens should be protected from both corporations and governments. A government should still be able to conduct a wiretap in the course of an investigation (because committing crimes is unwelcome in our society), yet it should deter any unwelcome whole-of-citizenry surveillance programs. Following the Tenth Amendment, if the citizenry of a particular state or municipality wish for certain types of public surveillance to occur (e.g., police cameras in cities), the people of that polity will need to seek legislation to accomplish such, which is a strength and not a weakness of the Constitution. > I've got essentially zero recourse while these companies build what are essentially parallel governmental systems that I'm forced to interact with. Though you probably won't like this perspective, every interaction with these systems is a choice. My hope is, the above approach makes such choices far less conflicted. > Philosophically, I'd say the US's framing of rights has run its course and reached its limits. Not because of the negative framing per se, but rather because it only narrowly construes rights as applying to the de jure government. The negative framing ultimately works well, but yes, massive corporations have convinced the nation that they are more powerful than governments. A possible solution might be adding "by any legal entity" to existing statements of protections of natural rights.