Privacy Is Over. We Must Fight Harder

October 6, 2019

Once upon a time, privacy was everyone’s default setting. Imagine an era when most letters and ledgers existed only in a single hard copy, when long-distance communication was slow and unreliable, when unpickable locks existed and cameras didn’t.

These are the conditions under which America’s founding documents were written. It was far from a golden age, but there were undeniable upsides to a government that had neither the technology nor the resources to know what most people were up to most of the time.

Those days are done. Privacy is dead. We have killed it, you and I.

It happened slowly and then all at once, much like falling in love. We traded away some of our privacy for convenience, with credit cards and GPS and cloud computing and toll transponders. Some of it was taken from us while we weren’t paying attention, via warrantless wiretaps and IRS reporting requirements and airport searches.

I applaud the valor of those who are fighting the rearguard action on privacy, making it their business to blow up bridges and burn crops as the rest of us beat a retreat. There are still many good opportunities to slow the rate at which the state gobbles up all privately held information about our purchases and daily routines and inboxes.

I used to think there might be some way to erect a legal bulwark between the ravenous state and the vast troves of private data. I now think that is a losing battle, primarily thanks to the too-common eagerness of the firms we entrusted with our intimate information to hand it over to law enforcement without even the formality of a warrant.

So we cannot keep our secrets much longer. But there is still hope. A minimal state where civil liberties are expansively interpreted and scrupulously protected offers the best chance to preserve the sphere of individual liberty. It matters much less if the state knows everything about you when it has no cause and no right to act on that information unless a genuinely serious crime has been committed.

If speech and assembly and trade are not crimes—not punishable by the state—then the loss of privacy will be less acutely felt. This, in turn, is self-reinforcing. A state where civil liberties are robust and jealously guarded has little reason to install a vast surveillance network of its own or to force its way into private networks. There is little it can do with that information. It’s a virtuous cycle.

In other words, while the fight for privacy is over, the battle for civil liberties is more important than ever.

Nowhere is this lesson more apparent than in Hong Kong this summer. For months, there has been riotous protest in the streets over a bill that would allow the extradition of suspects to, among other places, mainland China—a nation not famed for its commitment to due process.

In the Joint Declaration of 1984, after the U.K. returned Hong Kong to China, the city was promised “a high degree of autonomy.” Among the protected rights of Hong-kongers: “those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief.”

This list of rights is familiar to Americans and to other members of the Anglosphere and reminiscent of our own Bill of Rights. Under this regime, Hong Kong has flourished. But in recent years, China has looked for ways to assert its power and incept its authoritarian political culture into one of the freest places in the world. This summer’s extradition bill was the last straw.

The technology of protest in Hong Kong is striking. The citizens in the streets wear helmets, masks, glasses. They move under cover of umbrellas, faces and gaits obscured. They buy their train tickets in cash. The getup is practical and it looks quite cool, but it is nothing less than a MacGyvered right to privacy, snatched back temporarily from the ascendant surveillance state.

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