Opinion

Vint Cerf is Wrong. Privacy Is Not An Anomaly

Google Chief Internet Evangelist Vint Cerf

Privacy may actually be an anomaly,” said Vint Cerf, one of the architects of the Internet, at an FTC workshop on the Internet of Things on Tuesday. Cerf, who’s currently Google’s Chief Internet Evangelist, argued that privacy is a construct of the modern industrial age. In the past, his thinking goes, people lived in small self-contained villages, where pretty much everyone knew who was dating the baker’s daughter and what the sheriff had for lunch. It is only when populations started migrating en masse to cities that anonymity emerged as a byproduct of urbanization.

The view of privacy as an anomaly is not new, particularly among Silicon Valley entrepreneurs, who time and again express a cavalier approach to what is a fundamental, deep-rooted social, moral and legal value. It is however wrong, and may lead businesses and governments astray in making weighty policy choices.

Privacy has doctrinal roots that go back to the Old Testament. As the biblical Israelites wandered through the desert for decades, they pitched tents along the way, learning with time to set their dwellings so that the openings of the tents did not face each other. When Balaam was sent to curse the Israelites, he looked upon their camp and blessed them instead, saying, “How goodly are your tents, O Jacob, your dwellings, O Israel!” (Numbers 24:5). The Talmud teaches that he praised the dwellings of the Israelites because their architecture preserved domestic privacy.

Similarly, Cicero, the Roman philosopher and orator, famously exclaimed, “What is more holy, what is more carefully fenced round with every description of religious respect, than the house of every individual citizen? Here are his alters, here are his hearths, here are his household gods, here all his sacred rites, all his religious ceremonies are preserved. Thus is the asylum of everyone…” (Marcus Tullius Cicero, De Domo Sua 109).

Ancient privacy extended not only to the sanctity of the home but also to the secrecy and confidentiality of communications. In 1,000 AD, the synod of Rabbeinu Gershom issued its prohibition against the opening or reading of another person’s letters. This laid the foundation for modern wiretapping laws, down to the evergreen distinction between communication contents (what’s written in a letter) and traffic data (what’s on the envelope).  

But privacy is ingrained much deeper than ancient Jewish or Roman law. As Alan Westin writes in his 1967 classic Privacy and Freedom: “studies of animal behavior and social organization suggest that man’s need for privacy may well be rooted in his animal origins, and that men and animals share several basic mechanisms for claiming privacy… One basic finding of animal studies is that virtually all animals seek periods of individual seclusion or small-group intimacy.”

This zone of intimacy, which primates use for activities like breeding and toileting, is essential for the development of human individuality, intimacy and free will. As pre-modern philosopher Jeremy Bentham aptly illustrated with his Panopticon, a notional construct of a pervasively surveilled prison, persistent invasions of privacy breed fear, discipline and conformity. Totalitarian regimes implement this learning, deploying mass surveillance to stifle free speech, religious freedoms and political affiliation. And Julie Cohen has shown that privacy does not obstruct but rather ferments innovation, and consequently economic growth.

To be sure, technology and economic progress are pushing hard against existing social norms. In an article titled “A Theory of Creepy,” which will be published shortly in the Yale Journal of Law and Technology, Jules Polonetsky and I discuss strategies for navigating this treacherous, disjointed socio-technological terrain. Yet swiping privacy aside as an afterthought is no solution. Privacy is no anomaly. It is a deeply embedded construct, which evolves with time but is here to stay.   

photo credit: Joi via photopin cc

More from Omer Tene

About the Author

Omer Tene is Vice President of Research and Education at the IAPP where he administers the Westin Fellowship program and fosters ties between the industry and academia. He is also Vice Dean of the College of Management School of Law, Rishon Le Zion, Israel; an Affiliate Scholar at the Stanford Center for Internet and Society; and a Senior Fellow at the Future of Privacy Forum. He has published extensively in US and European law reviews about big data, online tracking, and international privacy law.

 

See all posts by Omer Tene

Comments

  • November 22, 2013
    DanP
    replied:

    Hi Omer,

    Fully agree with you and I am also amazed by what was said by Vint… It is true that years ago people were living in small villages and indeed it was quite easy to invade people privacy by spying behind closed shades who is doing what or who is meeting whom but it means in NO WAYS that there was no willingness to have privacy.. Very simply the baker’s daughter or the sheriff were moving to another village or city to hide in the anonymity and protect their privacy… And I remember when there was the move from rural town to the big cities.. a lot of people were enjoying that at last in the city they will be far from all these spying eyes in their village..

  • November 22, 2013
    Wojciech Wiewiórowski
    replied:

    Whenever they say that privacy is modern phenomenon, which did not exist in the past, so it is not crucial for our culture, I am asking myself: do they say the same about delegalisation of slavery and the gender equality. These are also new phenomenons, which were not known before 1850

  • November 22, 2013
    Omer Tene
    replied:

    Thank you for these great comments Dan & Wojtek.
    Dan - I think he may be conflating privacy and anonymity. Privacy is about freedom from surveillance, prying eyes, being judged and assessed based on observation/data. Anonymity is just one aspect of privacy. Blending into the crowd. I have privacy at home / work although am not anonymous in these settings.
    Wojtek - I agree that legal concepts can be novel and super important at the same time (e.g., race, gender and sexual orientation equality). But privacy is simply not a new concept. As Westin shows, it predates modern civilization and is hardwired into our brains.

  • November 23, 2013
    mas
    replied:

    Vint is not that wrong and your very good “theory of the creepy” confirms it. Thanks for this excellent paper with loads of good examples.

  • November 24, 2013
    Pat McClung
    replied:

    I think Vint Cerf was referring to a widespread and well-known phenomenon - individuals voluntarily surrender their privacy on proprietary exclusive social networking sites, with complete disregard for the effect of their actions on their future, and that of their families.  How else can you explain the 1 billion Facebook users? The fact that I regard these people as insane has no apparent effect on what they do.  an anomaly.

  • November 25, 2013
    Jon Neiditz
    replied:

    This post is a nice creation myth, but nothing more. Yes, one can find the IDEA of privacy in ancient Mediterranean doctrine, just as you can find the idea that “there is nothing new under the sun.” Alan Westin was a great scholar of the history of Western privacy, not of the hardwiring of our brains. Vint Cerf was not pretending to be scholarly in his remark, but stating what many scholars of other cultures and civilizations have also found true. To suggest that the privacy profession needs a strong dose of respect for other cultures and much more humility about defining “human nature” before its creation myths become dogma is not to discount the importance of privacy one bit; it is to reject universally reifying what Julie Cohen calls “the liberal self” in her good paper, “What Privacy is For.” That rejection in fact opens the door to what the privacy profession can do.

  • November 25, 2013
    Name Ruby Z.
    replied:

    Just a note to point out that many companies in the Silicon Valley, including those actually making silicon, are not at all cavalier about privacy rights.  Perhaps better to characterize companies by the nature of their businesses, in which revenue derives from gathering and sharing personal information, vs. the location of their startups.

  • November 29, 2013
    Lawrence Serewicz
    replied:

    The paper makes an interesting case and it requires a careful reading to consider its worth. I would suggest, based on my limited understanding of the issues, that some further questions need to be answered before we can agree with the conclusion.

    First, the reference to the Old Testament raises the question whether the Israelites were being praised for their privacy or their compliance with God’s law. One must recall that the Talmudic law is wholly prescriptive. It dictates all aspects of an Israelite’s life. In that regard, the law allows no private space because to move outside the law would be to violate God’s covenant. The case of Baruch Spinoza shows what can happen when such an all-encompassing law is challenged. I would suggest that we have to answer question “Is obedience to the law is the same as privacy?” At the same time, do non-believers therefore have the same “right to privacy” that the chosen people appear to have? If not, does that start to raise a further question whether some people have “privacy” but others do not? If privacy is based on membership to an elect group, then one has to consider whether privacy is an intrinsic, that is, natural right, or simply a positive right created by the community.

    Second, the reference to Cicero raises a similar question. In Cicero’s time, only citizens had rights. Slaves, by contrast, were not endowed with any rights. They lived at their owner’s discretion because he had poetestis over them. Their existence, in that sense, was only an extension of his power. We also find that privacy appears to exist for a select group of believers or those endowed with citizenship by the state. Here we face the same question as the Old Testament age, are the believers, or citizens, those endowed with “privacy”? If that is the case, then privacy emerges again as a positive right created by the community or by the emperor or the master rather than intrinsic to the person.

    I note that the idea of keeping a document confidential was raised. However, confidentiality is a contractual state rather than privacy. I would hesitate to equate confidentiality, which can and is breached and is only based on contract, with an idea of privacy that is only generated by the community and what it believes should be the law. Once again, we find that privacy is only an epiphenomenon of the community rather than something intrinsic to the person. In particular, as the ancient community believed that it had full authority over the individual.

    I appreciate Alan Westin’s point, yet we have to ask, has he simply equated solitude with privacy? Privacy and intimacy are not linked because they are a shared moment that someone else. Leaving the problem of intimacy aside, we still need to consider whether behaviour indicates “privacy”.  We are in danger, as in all these examples, of reading the present back into the past. We ascribe privacy to animal behaviour. Would we go so far as to say that animals have a “right” to privacy?

    What is curious about the reference to Bentham is that we seem to have been able to develop and understand individuality, actually a deep-seated existential threat to any community, without having considered privacy. The origins of individuality arise, roughly, in their modern form around 1100AD with the debate over whether man has stewardship of the earth and himself. The antecedents, of course, rest with Socrates and his political philosophical discovery of natural right. Yet, the individual as individual, not modern individual as recognised by the state, did not expect nor insist upon privacy. One only need to note that Athens was an illiberal polity that would not recognise nor understand the insistence on “privacy” given that anyone who did not participate in the public life, and was thereby “private” would have been sub-human. We then have to ask, is privacy really intrinsic to us, or is it simply something the modern state, since at least Hobbes, provides to citizens to mask its total control over the individual? If we have privacy, why do we need the state’s permission to exercise it?

  • December 01, 2013
    Irina Raicu
    replied:

    To suggest that a focus on privacy reflects cultural bias is to oversimplify the concept of “privacy.” Even in the smallest of villages and the most communal of societies, individuals still shared some things only with certain people, and did their best to keep some information from others. Throughout history, some indeed had more privacy than others, and the correlation between privacy and power is another aspect worth discussing. As many have pointed out, modern democracy would not be possible without privacy—and what might Vince Cerf make of the fact that modern democracy is a historical anomaly?

To post your comment, please enter the word you see in the image below:

To post your comment, please enter the word you see in the image below:

Get your free study guide now!
Get your free study guide now!