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In dissent, Potter Stewart called the law "uncommonly silly" and "obviously unenforceable" (though not in the case at hand, which found Planned Parenthood being prosecuted for prescribing and providing contraceptives to a married couple). But how, Stewart wondered, does the silly law violate the Constitution? The other dissenter, Hugo Black, couldn't say either, even though "the law is every bit as offensive to me as it is to my Brethren of the majority."
It was up to Douglas, writing the majority opinion, to strike down the law and somehow invoke the Constitution in striking it. Depending on your point of view, his solution was either elegant or ridiculous. "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," he asserted. In other words, though the Constitution didn’t mention it, a right to privacy was there in spirit.
Roughly half a century later, is the spirit strong? Today we happily share intimacies with websites any two-year-old can hack. For the freedom to roam the Internet and form communities of the like-minded, we hold nothing back. It’s as though our precious privacy was just a pretty way of thinking about the anonymity imposed on us by urban life, and now that it's possible, we can’t shed it fast enough. We all want to live, once again, in a village—a global village.
This very observation is made over and over in a report released Thursday morning by the Pew Research Center, The Future of Privacy. Pew doesn’t know what that future is, but it asked more than 2,500 technology experts and analysts to weigh in. Then it sorted out where they stand.
This was the key question: "Will policy makers and technology innovators create a secure, popularly accepted and trusted privacy-rights infrastructure by 2025?" According to Pew’s count, 55 percent said no and 45 percent said yes. These numbers are close to meaningless.
For one thing, they’re just predictions. Who the hell knows? What’s important is that according to coauthor Lee Rainie, the broad consensus is that "living in public is the new default mode." Even the optimists expect to see privacy defined down. Here, according to Pew, is a common theme of the optimists: "Living a public life is the new default. People will get used to this, adjust their norms, and accept more sharing and collection of data as a part of life—especially Millennials and the young people who follow them. Problems will persist and some will complain but most will not object or muster the energy to push back against this new reality in their lives."
Replied Laural Papworth, identified as a social media educator: "Privacy was a short-lived, post-industrial experiment. The global village will always win against privacy. Privacy was used to divide and separate individuals from each other to weaken them. As we enter back into the village, privacy naturally disappears against convenience and the human need for connection."
Fred Baker, "Internet pioneer," foresees "continuous and pervasive service-based and crowd-sourced surveillance." The result: "a ‘small town’ dynamic on a global scale—people become more careful about what they reveal, and everybody knows the dirty secrets anyway."
It’s not that the old-fashioned privacy valued by William Douglas will go away completely. Pew’s experts see it heading in two directions—to the top of the pecking order, and the bottom. It’ll become the kind of privacy that James Bond has been fighting forever: the kind guarded by rich men holed up in impenetrable fortresses. "Privacy will be a luxury not a right—something that the well-to-do can afford but which most have learnt to live without," predicts Finnish academic Alf Rehn.
Professor Kate Crawford says it’ll become a "luxury good." And according to "Internet law litigator" Andrew Bridges, there will be no privacy beyond a "'security class,' namely those persons who get to know about others without their own actions and knowledge being known."
At the opposite social pole, privacy will earmark the ne'er-do-wells. Consider the benign future posited by consultant Jerry Michalski: "By 2025, you will be considered a nonperson if you do not have embarrassing photos or videos online from your misspent youth." In this world, in which all is known and much is forgiven, those who hide their sins "will be less credible, and will be trusted less, because others will not be able to see any of their indiscretions—the things that make them human and more trustworthy." A handful of people will try to go off-grid, predicts William Schrader, founder of PSINet. They’ll "only use cash, not own a phone, not have a tax identification number, etc. . ." And for these sins, they’ll "be treated by authorities worldwide as suspect in some way, simply because they choose not to be tracked."
The Pew report makes me think of the current movie The Imitation Game, about how the British cracked the Germans’ Enigma code during World War II. The problem the British faced after the deed was done was keeping the Germans from getting wise, which meant using the intelligence sparingly, shrewdly picking spots. Will the "security class" employ the same cunning to keep the public unconcerned about what it knows about them? Or will it act whenever it likes with impunity because the public won’t really care?
Here’s a link to the Pew report.