The Anonymity-Identity Spectrum
At the heart of both Amendments is the idea of connectivity. First, we have the freedom to choose both the medium and message of communication. What determines how we communicate and how do most people want to communicate? We have the option of communicating via direct face-to-face contact or via voice (phone), text, email and photo images. The available communication technology determines the scope and range of our words. Digital technology generates viral connectivity so First Amendment rights have far more power than originally imagined. Second, technology also determines the extent to which this communication remains between the interested citizens - this choice, therefore, impacts privacy outcomes. Consider that the very technology that enables our communication is created by business: as a consequence, the boundaries of our private lives are defined by the technological choices we make. Most individuals remain unaware of the sieve-like nature of transmission technology and how it can be penetrated at various points by businesses for monetary gain and by the state for national security purposes. Importantly, neither does the law! The Privacy Act of 1974 is based on a set of principles that are not synchronized with current technological capabilities.
From an economic perspective, what does freedom of speech imply? Magazines sell and advertisers pay for space on platforms that host popular content, and when popularity is reinforced by titillation and voyeurism, there is an incentive to seek and publish intimate details about individuals. This is where the First and Fourth Amendments collide. In free and unconstrained markets, businesses have the right to pursue their objective of profit maximization (which could be defined to encompass all stakeholders in the business), but this right is incompatible with individual rights to their private information. The significant question for the courts and for civil society is how should violations of civil liberties, embodied in both the First and Fourth Amendments, be addressed?
What do we mean by privacy? It encompasses several definitions. One is a form of autonomy or independence of personal choice, including marriage, religion, secrecy or hiding personal conduct, and anonymity or the ability to conduct your life totally unobserved. In many nations, including the US, autonomy in personal choice is guaranteed by law. But, as discussed in the case of the market for individuals’ attention and labor markets, the central issue is one of control. If privacy is considered a basic human right, with ownership status as with property rights, then individuals have the right of control. Control over whether, when and with whom to share their private information. We have largely accommodated this notion with most economic transactions, which are paired with complex privacy agreements. (It’s not clear if those who profess to believe in privacy rights actually read these agreements prior to signing off.)
The second form of the privacy definition addresses the issue of government surveillance while the third form covers the notion of privacy as a basic human right. These two definitions expose a spectrum of private information where there is complete anonymity on one end and total transparency on the other.
Anonymity also implies the absence of any form of identity. A world where individuals are totally unknown has never existed. Membership in tribes, kin groups and communities automatically generates an identity. In fact, as discussed in Chap. 3, socialization is ingrained in human nature so that we may acquire an identity. The fear of being alone, with no kith or kinship ties, is precisely what drives civilization and culture. The idea of complete anonymity is antithetical to any evolutionary trajectory so when we argue about privacy, we are asking a narrow question. The question is not one of absence of identity but rather preserving that identity in a secure and undisturbed form. People don’t want to vanish into obscurity, they want to be known as obscure, private individuals.