Privacy is not Seclusion, wtf is it then?

Privacy is the power of an individual over its own possesions in relation to its environment

There is a growing support for privacy across the world. And there is a growing debate across the world about constitutional rights to privacy. In a lot of cases, after interpretations of the law, the people conclude, that violating privacy is non-constitional.

4th amendment of the USA constitution (all constitutions are based on this) is this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Right to privacy is a fundamental right under this amendment that ensures personal liberty.

In 1973, there was a pivotal supreme court judgment. Roe v. Wade affirmed that the right to privacy, protected under the Due Process Clause of the Fourteenth Amendment, encompasses a woman’s decision to terminate her pregnancy.

Third party doctrine is something the Americans should be scared of.

The doctribe is the evolution of the Katz definition of privacy to modern facts: if you disclose something to a third party, you no longer have a reasonable expectation of privacy.

The gov only needs a warrant to “search” places where you have a reasonable expectation of privacy.

For eg. Prosecutors often use cell tower data in criminal cases. Government never subpeona the big tech, they just have backdoor access to them because of this doctrine.

The expectation of privacy is a legal test, originated from Katz v. United States and is a key component of Fourth Amendment analysis. The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects, in which they have a subjective expectation of privacy that is deemed reasonable. The test determines whether an action by the government has violated an individual’s reasonable expectation of privacy.

The Reasonable Expectation of Privacy Test

In Katz, Justice Harlan created the Reasonable Expectation of Privacy Test in his concurring opinion. Although it was not formulated by the majority, this test has been the main takeaway of the case. Justice Harlan created a two-part test:

1. The individual has exhibited an actual (subjective) expectation of privacy.

2. The expectation is one that society is prepared to recognize as reasonable.

If both requirements have been met, and the government has taken an action which violates this “expectation,” then the government’s action has violated the individual’s Fourth Amendment rights.

Article 21 of the Indian (largest democracy) constitution goes like this:

21. Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In the landmark case of Supreme Court of India, K.S. Puttaswamy v. Union of India (2017) established the right to privacy as a fundamental right under the Constitution.

American Express was denied access to the Indian market until they store Indian citizens’ data in the country itself which was lifted on Aug 24, 2022

In the UK (the country where the contemporary law began), the right to privacy is protected under common law and the Human Rights Act, specifically through the Article 8 of the European Convention on Human Rights:

1. Everyone has the right to respect for his [or her] private and family life, his [or her] home and his [or her] correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

And so on...

Therefore violating the right to privacy is non constitutional many of the countries but then again, big tech and the governments & law enforcement themselves often do activities that we consider violations of privacy. Why is this happening?

The fact of the matter is, we don't really have a neat or a clear defination of the word “privacy”. It's not just the act of leaving someone alone. It's not individualism (having the liberty to think and do things without the interference from the people around). It's not just about private property - the whole bitcoin debate is about private property, much of the discussion is about privacy.

Indian wives often have this habit of saving money and hiding it from the husband for the good of the family (consider it, a rainy day fund), but when the unfortunate demonitization of 500 and 1000 Indian currency notes happened, the money that the wife saved over the years suddenly became worthless and had to be revealed out in the open so that it could be exchanged for the new legal notes. The privacy of those wives was violated.

People say that privacy is important only for those that have something of value / are rich but I would argue, the wealth of the individual has nothing to do with their need for privacy.

Homeless people in the United States feel violated if their meagre possesions are searched, feel violated if you barge into their tents etc. How much money may give you the power to increase your privacy and security but it definately has nothing to do with the want of every Indidual for privacy, it is a fundamental right and the people who do stuff (the executive) have overstepped the legislature (two of the four pillars of democracy have been unbalanced)

Privacy is the extent of the power of an individual that he/she can exercise when the immediate environment violates their possessions (in the digital context - data). And it is also the extent of the default protection the stuff has. What takes priority, privacy or security? - that I think is the wrong question, the right question to ask is this - if all the privacy is taken from you, will there be any security left?

As a society we consider asking for consent as a foundational paradigm that we live by. In medical practice, we go as far as saying a misinformed consent is not a consent. Consent without revealing every detail of the procedure is not a consent at all. So if possesions are taken away or in the case of data, it is collected without consent, it's not consensual, in all seriousness, its rape. The defaults of the web matter the most, opted out should be the default, not opted in. And Ofcourse without informed consent, there is no such thing as opting in.

I would argue (this will be highly controversial in privacy circles) that Google is private because it gives you - the user the power over your data, you can clearly see what all data is collected in your personal dashboard and you can export it and delete it if you chose to and Google has atleast been always honest about collecting data, unlike apple, which in their ads - flaunt that their devices private but in fact, are not.

But Google is not secure because the central collection of the data and Google analytics tracking individuals across web pages (even anonymised) is a vulnerability bad actors can exploit.

Security is also not neatly defined as well, I’d like to define security as the likelihood of harm to the individual in the context of its environment.

Previously, I argued that threat modelling is a wrong approach to security, instead what we should be doing is, trust modelling - evaluating the things in your environment as trustworthy or not, discarding those that breaks your trust, not fully trusting services and products initally, approaching them with caution and slowly increasing the trust as you have more information and experience with it.

It would be a disgrace if I didn't comment on anonymity when I am writing a thesis on privacy. We often think about what other people would think, about our actions and tastes. And it often strangles us, limits our thinking and our actions.

People from all around the world having all kinds of backgrounds and cultures come to New York, walking through the city center is quite liberating, you are anonymous even if you wear a very different clothing because there is no judgement, and that is what liberates you. That my friends is anonymity. Identity without judgement.

Snowden