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Email, Privacy, and Engagement

Susan Crawford

After they finished the tenth installment of their enormous multi-volume history, The Story of Civilization, Will and Ariel Durant wrote a set of thirteen essays entitled The Lessons of History. I happened to pick up this volume yesterday; it's both slim and sweeping.

The Durants loved history, and wanted to show their readership what waves and tensions and trends they perceived. It's not a great book, but it's an undeniably forceful one. One essay discusses the essential moral characteristics of individuals, listing six traits and providing "positive" and "negative" descriptions of ways in which people act. Here's a quote: "Human beings are normally equipped by "nature" (here meaning heredity) with six positive and six negative instincts, whose function it is to preserve the individual, the family, the group, or the species. (Action, Fight, Acquisition, Association, Mating, Parental Care) . . . Each instinct generates habits and is accompanied by feelings. Their totality is the nature of man." (Note to law review editors: not a footnote within miles.)

For "Association," the Durants say flatly that "privacy" is a negative instinct of mankind. That's it. If you're private, if you want solitude, you're just not helping Progress.

Now, I don't agree with the Durants' black-and-white view of human nature. There's a continuum out there, and putting things into boxes the way they did may not have advanced Progress either. (And they say "cooperation" is a negative trait too — the opposite of "competition. I don't agree with that either.) But having this 35-year-old use of "privacy" in front of me on the page provokes me to say the following:

We have no assurances, as we walk down the street, that no one is watching. In fact, to the contrary, there may be all kinds of things and people and machines watching that we do not see. Instead of worrying about that, we talk to the people behind the counters in the stores, we engage with the cab driver about the weather, and we notice who goes by.

If we're really worried about privacy, what concerns us is someone developing a full-blown dossier of our every move and publishing it to people whose possession of this information would be hurtful to us in some way. But, other than this particular worry, whether someone's watching is of no particular interest or consequence. There is so much information in the world that it is unlikely that we'll be important enough to cause the sifting that would produce such a dossier.

Same thing for online life. All of us send a great deal of email and wander around for hours at a time. Sure, someone could be watching. But should we worry? Should we be concerned that an ad may be targeted at our computer based on our online activities? Who is hurt by the personalization of advertising? Or even content? Might it be a "negative" instinct to be concerned about this — and particularly to be so concerned about it that we stop wandering around online or sending email?

The recent protest letter re Google mail strikes me as a negative step — a step backwards. Google may indeed have established for itself something that is much more like a global platform than a search engine. Its engineering costs have likely gone way down, while its pool of available information has grown enormously. But asserting that Google mail should be suspended for privacy reasons seems out of proportion to the risks involved.

After all, the people I deal with every day (dry cleaners, doormen, shopkeepers) have made no promises to me about how long they'll keep my image in their minds. The people at my school aren't telling me how long they will keep records of my employment. These people know much more about me (granted, only shards of information, but more of it) than Google will.

But EPIC and others are asserting that Google's "data retention and correlation policies are problematic in their lack of clarity and broad scope." So don't use Google. It's not being forced on you. Go use a paid-for mail service that makes clearer promises to you.

Google shouldn't need permission from privacy-knowledgeable people before opening up a new service. The fact that some are distressed about Google automatically transmitting email says more about perceived lack of choices of rulesets for email data than anything else. Google is so successful that people worry it will become the only show in town.

Yes, privacy matters, particularly (and maybe exclusively) when there is a risk of disclosure of a detailed dossier of your online life. But a commercial company can open up a new service without making promises to anyone about its privacy practices. If it breaches the promises it has made, that's one thing. Merely rolling out the service, on the other hand, might just be Progress.

By Susan Crawford, Professor, Cardozo Law School in New York City
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