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Assessing Online Privacy

-- By NevfelAkkasoglu - 12 Mar 2021

Setting the Stage

Privacy has always been important for people. In the age of technology and the internet, online privacy, which is just one aspect of privacy, has become at the center of the privacy debates, probably partly due to the internet's infrastructural evolution and the emergence of ubiquitous big tech. However, privacy is not just a trendy fad. It is, by nature, one of the characteristics that distinguish the human species from other living things.

When you are at home, you can be sure that you are let alone—you can read whatever you want and utter and talk to others about anything you are up for. You have complete autonomy for self-realization without the fear of encroachment because you know that one's house has legally been acknowledged as his privacy. However, when you are on "line"—wire, in a sense, you are no longer at home, where even government cannot intrude without Constitutional justifications. Your activities, your intellectual interactions manifest themselves on a non-physical actuality. But, still, your clicks, likes, and habits are the manifestation of your private personality. Even though the Internet has brought a whole new dimension, arguably, all activities on the Internet are forms of reading and communication—the two actions that you traditionally do "offline." Performing these online does not justify being deprived of privacy protection for many reasons. We will attempt to find these reasons in this paper.

We begin by asking that is it reasonable for your mason worker to come by and peer through what you do inside your house after he has finished building it? Does erecting your dwelling them the right to monitor your privacy? No. It follows that even an internet service provider (ISP) cannot interfere with your privacy in this sense, let alone other behavioral data collectors. ISP is supposed to provide the infrastructure you paid for rather than surveilling how you used the service. Also, let's push the public utility analogy. The current indispensable widespread internet use in modern life will tell us that there is nothing to prevent us from acknowledging that the internet is an essential need, like electricity or water. The city water management is supposed to bill how much water the customer consumes but not figure out and sell the data of whether they use the water to rinse the vegetables or have a bath with it.

Can Data Ownership Help?

However, the internet, a tool that has the potential to advance the human race through easy sharing rapidly, has been so abused by the profit-by-ads-centered business mindset that it is reduced to a giant surveillance mechanism. As of now, few can imagine what the internet would look like without technology monopolies, unfortunately. As the big players grow fatter, privacy concerns arise: On what basis can people claim online privacy?

Some people assert that creating ownership over information, treating your information as property, presumably as intellectual property, would help. However, this approach is flawed not only because the application of IP laws to online information is dissonant (Fn-1) but also the very premise of the ownership of information itself. Claiming ownership for non-tangible things is an inherently complicated business. History testifies it: Nobody ever disputes the ownership itself for tangible things, and foundational physical property laws have hardly changed for centuries. But the intellectual property ownership has always been subject to existential disputes because of its controversial roots and artificial nature. Health data can show, as an example, its ineffectiveness: Currently, patients do not own the data generated in their health records; HIPAA established privacy rules for this data and enabled it to be shared with third parties, including the government, for the public health purposes. However, even if patients own that information, it is almost impossible to make a case that data ownership would give patients any more control than they now have: The government can already acquire data whether via Constitutional "takings power" or granting this power to private parties, as it currently does with "HIPAA Waiver." (Fn-2) Granting ownership rights to the information produced online would be like building on a sand ground, let alone a relief for privacy.

Conclusion

Privacy is a fundamental human right, such as the right to life or liberty, not a commodity that you can trade. Information about you is the core component of the right to privacy itself. Treating and trading a person's online information like a commodity is just as absurd as receiving compensation for giving up your freedom. Even if the person is not aware that they have the right to privacy, they do have it. It is an inalienable right that originates from being a human. And it cannot be ceded to third parties by consent or opt-in mechanisms. The misunderstanding stems from the illusion of using everyday expressions such as "your data," "sell my data", and this implies a false impression of "ownership" on privacy. However, privacy is a right, which is demanded here, not a property that is marketable.

It is absolute respect for a fundamental human right, not data ownership, that would protect online privacy. This can result in the evaporation of specific business models; it would not leave people in abjection. Instead, it would create an environment in which there are less intrusion and more deliberate mental production. We can live very well in a world without a privacy tracking advertising business model. In addition to protecting privacy, lessening private surveillance as much as possible will allow for the healthier development of democratic aspirations in society and limit one of the most effective means of intimidation by authoritarian governments.

Fn-1: Anomalies of creating intellectual property for individual’s data: Mark A. Lemley, Private Property: A Comment on Professor Samuelson's Contribution, 52 STAN. L. REV. 1545 (2000).

Fn-2: Barbara J. Evans, Much Ado about Data Ownership, 25 HARV. J. L. & TECH. 69 (2011).

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