Thinking about the recent Verizon/PRISM/Muscular releases, the StopWatchingUs protest, and seeing the same “I’ve got nothing to hide” argument come up again, I’ve been thinking that perhaps the way to solve this from a public image perspective is to change the narrative in society. Instead of fighting for privacy arguing about privacy’s intrinsic value, we can discuss privacy as a form of personal property and gain some of property’s protections for privacy. That idea may have some cons, but perhaps could be useful to deflect the “nothing to hide” argument and to get moderates to join the fight for privacy online. I would apologize to my law school friends for the bending of legal frameworks for my own ends, but after Citizens United I don’t feel so bad doing it…

Let’s think about the units we’d be talking about. I’ll define privacy as the ability to control who knows certain things about you, whether it is basic information like your address, or who you talk to (NSA-Verizon-ATT, Chevron and email), or exactly what you look like naked (TSA scanners), to your inner beliefs and thoughts (unease with behavioral targeting).

In our idea of a ‘privacy property’, each receipt of this information by a new individual or organization would be a new property transaction. You should have control over your own ‘privacy property’, regardless of who is communicating your information. For instance, if Google is handing over your data to an advertiser or the NSA, you would have control over whether that transaction is allowed. Similar to property, the government could appropriate your privacy in an emergency or a war situation, but everyday privacy violations would be illegitimate takings by the government.

Now, let’s be clear, this regime would be very difficult to implement technically, but we are discussing how to change the public’s perception of the issue, not necessarily advocating that this framework should be implemented.

Quick Brainstorm of Pros and Cons:

Pros:

• Appeals to moderates
• Can demonize NSA by painting it as un-American since they are now anti-public property and potentially ‘socialist’ by appropriating privacy for the state
• Much clear, longstanding law on property can be used in the fight for privacy

Cons:

• De-sanctifies privacy
• Government has precedent to take away property by eminent domain
• Not a perfect mapping to conventional property, and thus potentially confusing
• Uses a similar argument to the one record companies lost with during the 2000s

While I was thinking about this, I came across this ten-year-old article from Lessig trying to outline a viable framework.

In the article, Lessig talks about Amazon changing the terms of service retroactively to be able to sell information about their customers, even if those customers had indicated that Amazon should not sell their information:

If it were taken for granted that privacy was a form of property, then Amazon simply could not get away with announcing that this personal information was now theirs. That would be “theft,” and this is my point: “theft” is positively un-American.

Property talk would give privacy rhetoric added support within American culture. If you could get people (in America, at this point in history) to see a certain resource as property, then you are 90 percent to your protective goal. If people see a resource as property, it will take a great deal of converting to convince them that companies like Amazon should be free to take it. Likewise, it will be hard for companies like Amazon to escape the label of thief.

Lessig talks a lot about what a property system would look like for privacy, but I think this is unnecessary and for the short term, distracting. If instead we change the public perception about privacy, we can gain the cultural protections of associating privacy with property and change the discourse amongst moderates. We can change the discussion from “I’ve got nothing to hide, the NSA can see who I’m talking to” to “I don’t think the NSA should be allowed to commandeer so much property for so little benefit to America. If they can’t justify the benefits with specific examples of thwarted plots, etc, my ‘privacy property’ should not be taken. The NSA is an un-American institution if they continue this spying.”

I think we can even go further to gain the protection of not only the fourth amendment, which is somewhat confusing and endlessly debatable, but with the third amendment, probably the least controversial amendment in the bill of rights:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

In a time of relative peace, the NSA is stealing some of our ‘privacy property’ every day with no compensation. Their justification for stealing is for defense of the country, however this defense is against undefined, undefeatable foes with no end time table. Thus, if privacy is considered property, it can be argued that the NSA is committing the exact crime that inspired the 3rd amendment.

While I don’t think a case could be successfully argued in the supreme court right now, we only need to win in the court of public opinion.

Yet, as a friend points out, the NSA reading your email does not feel like the British government posting a soldier in your spare room. However, if there is a mental shift to each new recipient of your personal information counting as a property transaction, it may very well start to feel like that.

There is the final complication that it seems as though the argument is very similar to the argument record companies failed to ‘win’ with during the 2000s, that data online is property and must be treated as such. While everyone seems to take it for granted that the record companies lost this battle:

1. The law is clear that piracy counts as at least copyright infringement punishable by serious fines and jail time
2. When you poll the general public, people still do consider piracy to be theft, although probably a ‘less severe’ form of theft

Quick note on that Rasmussen poll I linked to- yes, this is likely voters who were reached by land-line telephone. Nate Silver has written a ton on how Rasmussen polls are biased but this is bias is actually a boon for us. Generally the younger generation has been less receptive to the security argument, and to expand the fight against spying we need the support of the older, less urban generation which Rasmussen is biased towards. These polls suggest that this older group is more likely to respond well to the “privacy is property” narrative, and could be allies in the struggle against government surveillance.

Let’s go out in the world (and on the internet) and try to emphasize that:

• Privacy is a form of property, where each new receipt of your information is a property transaction
• The NSA is therefore stealing your property every day, in relative peacetime
• While there may be a national security justification in some cases, broad collection in peacetime violates the fourth and third amendments and are a serious danger to the first amendment

Especially as the holidays come up, let’s see if our currently-less-concerned relatives can be swayed by this argument. If the connection to the third amendment is a stretch, at least that privacy should be afforded some of the protections of property.

Example Interactions from the thanksgiving table:

“Doesn’t matter to me, I have nothing to hide”

Neither do I, but it should be my choice to provide information to the government, as private information is my ‘privacy property’. Without the ability to give consent to spying, the government is stealing from you, whether you support the program or not.

“But the government needs to protect us from terrorists”

Yes, but at what cost? Your privacy is your property, and while we accept that the government sometimes needs to take property to protect the country, our country’s founders specifically rejected the equivalent of the NSA’s spying. The British used to post soldiers in houses (quartering) without paying the owners of the house, effectively appropriating the house’s private property. The NSA is stealing your private property day-in, day-out just like the British stole our forefathers’ spare rooms. It goes against the ideals of America to support this spying program.

“What about child predators, hackers, etc?”

These are police matters and should be handled through the regular justice system. Just because something is online does not mean it is up for grabs, and the constitutional protections given to you in real life should follow you onto the internet. As it is, we are spending more and more time on the internet so we need to ensure we protect our rights online as well as offline.

“But you give data to Facebook, don’t they own that information now, and could give it to the government if they wanted?”

Perhaps, but just like you can’t go and print off copies of Harry Potter and sell them on the street, institutions who I’ve given my data to should not be allowed to resell my information without my consent. Just as you would go to jail for stealing from JK Rowling, Facebook should be liable if it passes on my information to anyone, not just the NSA. Start thinking about each time a new organization receives your information as a transaction that you should have to authorize - it is your data!