Recently Facebook has been rolling out its new face-recognition tool, which will, unless deactivated by a user, automatically suggest that user’s name to his friends tagging photos they have recently uploaded. A technologically impressive feature, very convenient. Not surprisingly, however, politicians and commentators are expressing concerns that this tool, and particularly the fact that the tool is automatically turned on, constitutes an invasion of privacy of Facebook users.
I believe that, ironically, it is the legal right to privacy that is most to blame here.
As I’ve argued in my academic articles, I think the best way of legally protecting states of privacy is via our rights to property and contract. As it stands, our legal protection for privacy rests upon a “right” to privacy that is no more than a permission: the legal test makes protection for privacy dependent on whether others in society deem your expectation of privacy to be “reasonable.” The test is non-objective, which means its application is up to the whim of whichever judge or bureaucrat is applying it. The right to privacy has been essentially this way since its inception. Warren and Brandeis, in the famous 1890 Harvard Law Review article that is credited with giving birth to the right to privacy, insisted that the right was not absolute, that it had to be balanced against the public interest.
However, because everyone believes they have a “right” to privacy, they are always turning to government to protect it. As a result, they spend less time thinking about what they might have agreed to when they, e.g., use Google or sign up for a Facebook account. If privacy was legally protected via our rights to property and contract, I think people would spend more time reading and thinking about what those contracts actually said. I also think this would discourage Facebook from the “try-it-and-see-if-we-can-get-away-with-it-or-if-we’ll-be-slapped-down-by-the-government-bureaucrat” approach they seem to have adopted.
I do think that companies amassing huge databases of information about us is a legitimate concern (how much of a concern can be a matter of individual taste). But to me the most troubling aspect of all this is that the government apparently has automatic “backdoor” access to information the companies have collected. Facebook, Google, our phone and bank records, etc., are regularly accessed by government without a search warrant. Courts have long held that you don’t have a reasonable expectation of privacy in such things, and therefore the government routinely accessing them is not said to constitute a “search” for purposes of the Fourth Amendment. On the property- and contract-based model of privacy protection, your private information would be protected via an enforceable contractual relationship between you and Facebook, Google, etc., and there would be no routine access to it. The government would have to obtain some sort of warrant, based on particularized suspicion.
So while I, too, am often annoyed at Facebook activating new features that share my information with other users, without notifying me in advance, I am more concerned with how easily the government can access that data, for any purpose it wishes. I fear that, if we continue in our present state, without truly effective legal protection for privacy, it is government that will prove to be its most dangerous invader.