The focus of Minnesota Litigator is “news and commentary about Minnesota litigation” but its owner permits it to wander occasionally to keep things lively.
The article, “Privacy R.I.P.,” by Super Lawyer and 30-year Twin Cities litigator, Gary A. Weissman (most recently of Jackson Hole, Wyoming) in the March issue of The Hennepin Lawyer is Minnesota Litigator’s detour into this not-Minnesota-specific, not-litigation, post.
In a nutshell, Gary A. Weissman has profound concerns and reservations about privacy and about the exploitation of our private and personal information by business and government. Apparently, these concerns are not new to Mr. Weissman if this is the Gary A. Weissman who sued the C.I.A. in the 1970’s.
But others have a different take.
For example, Weissman discusses several cases in which misinformation has been misused, has harmed people badly, and they have sued and recovered six-digit damages awards at trial against the misusers of their names and reputations. This, Weissman says, shows that society is confronting “horror stories” about “how fragile privacy has become.” He goes on to say that the problem is not evil business so much as it is because consumers are hypocrites. They say they value privacy and then turn around and trade it away for a quick buy on Amazon or a real steal on Groupon (and so forth).
But “the real problem,” Weissman continues, “is the law.” We need “a comprehensive and coherent plan.”
I am not so sure. First, Weissman’s own article seems to me to show the law working as it should. People damaged by invasion of privacy or misuse of confidential personal information face legal liability in Minnesota and across the country. Second, the entire idea of privacy is like pornography (i.e., it cannot be defined but I know it when I see it). It is difficult to have a truly comprehensive and coherent plan to protect something that is vague and unclear. Third, maybe the consumers whom Weissman finds hypocritical in their positions on privacy (that is, 98% of the U.S. population or more) are knowingly trading information about themselves (for example, their purchasing history, their “browsing” history, and so on) — information to which they do not attach great value or feel is very private — in return for huge benefits. (I don’t worry about scanning media reports for author Zadie Smith‘s next published work. I am confident that Amazon will be quick to let me know.)
All that said, maybe Weissman is really on to something. My reading of Nassim Nicholas Taleb’s The Black Swan has led me to conclude that the only robust prediction that humans can make about complex things like the weather, the economy, or significant social/cultural change is that almost all of our predictions will be wrong.
There is no question that this idea of “privacy” is forever changed when we leave digital data-tracks everywhere, every second, of every day, which cannot ever easily be concealed or contained.
Even more troubling, there are those among us who have the training and expertise to manipulate those digital data-tracks, which conjures the sci-fi spectre of The Fugitive on a huge scale.
But whether we end up with a dystopian scenario of overwhelming social control and manipulation or a consumer paradise where supply and demand are in sync as never before is anyone’s guess. In the mean time, though, I do not expect many people will take up the majority, if any, of Weissman’s concluding prescriptions for those concerned about privacy:
(1) Use anonymizers (intermediate servers) to surf the web; (2) don’t use debit cards to buy online (the FCRA limits your liability only for credit cards); (3) to minimize marketers tracking your purchases, set your browser to disable cookies; (4) call the FTC at its toll-free number, 888-382-1222, to get on the “Do Not Call” list for commercial telemarketers; (5) take the time to read company privacy policies, and complain loudly if you’re not happy (Facebook dropped its plan to make profiles searchable on Google when consumers reacted very negatively to its announcement for data-sharing); and (6) be careful what you browse and watch (at least one hotel chain keeps track of the adult movies that you watch in the “privacy” of your hotel rooms).
Post-Script: This post is self-demeaningly labeled at the start as “superficial” because privacy is a subject on which scholars and activists have spent a great deal more time on than the author, Mr. Weissman among them. For those interested in deeper understanding, I note that Mr. Weissman’s footnotes appear to include many in-depth books and articles (including one by Mr. Weissman himself).