The end of privacy

Think your innermost thoughts and secret actions are hidden? Think again.

Illustration by Benjamin Bay

A few years ago, when I was in my mid-20s, I took a part-time job as a security guard. One of my duties was to sit in the security office and monitor the couple of dozen security cameras installed throughout the building. It’s a facility with heavy foot traffic, so sometimes, over the course of a single shift, I’d see hundreds of people walking around. I’d judge them from afar, perhaps make fun of their ugly outfits or bad hair. I’d gawk at the attractive women, maybe even zoom in to get a better look. I’d sometimes try to read lips or figure out what people were talking about based on their gestures. I’d stare at people longer than I’d ever feel comfortable doing if we were face-to-face.

It was creepy. And all the creepier because most of the people weren’t aware that they were under near constant surveillance. They might’ve been aware on some level that there was some kind of security, but they certainly weren’t thinking about the 25-year-old dude watching their every move, muttering insults or thinking lurid thoughts.

After I’d done the job for a few months, I started being conscious of security cameras. They’re everywhere—in almost every business or public space. Reno’s Scotland Yard Spy Shop sells security cameras that can be hidden in living room lamps, hats, sunglasses, key chains, pens and more. If an object can be touched, it can contain a camera. If it can be seen, it could be watching you.

You wanted to be on TV when you were kid? Well, guess what.

People used to be surprised on an old TV show when they’d hear the phrase, “Smile! You’re on candid camera!” The surprise now would be to learn you’re not on camera. In a reversal of social mores from just 10 years ago, privacy is now the exception, not the rule.

What is privacy?

“Cell phones are the worst,” says Scotland Yard’s Alysha Carpenter, “The signals are just in the air. It’s not rocket science to intercept them.”

Any information sent anywhere by any means could potentially be hacked. Online reports abound about potential snoops using hacked webcams or Xbox’s new Kinect system to look into your living room and figure out how to steal from you or market to you.

Scotland Yard sells protective credit card sleeves for what Carpenter says is the latest big scam: Portable card readers that will read and capture your credit card information through your pants and through your wallet. You could just be walking down the street and somebody could be magnetically pickpocketing your credit card numbers.

Financial security is just one part of privacy—though it is probably the area most widely agreed to necessitate privacy, but there’s also medical history, sexual activity, religious beliefs, political opinions—plenty of information you might not want to broadcast to the world.

And if you want to keep any or all of that information private?

“Stay off the internet, stay off the cell phone, and shut your mouth in public,” says Carpenter.

Of course, everyone defines privacy differently, and these definitions are in constant flux. In Nevada, a precedent-setting legal case was a 1995 decision by the Nevada Supreme Court in the case of PETA [People for the Ethical Treatment of Animals] v. Bobby Berosini, Ltd.

Illustration by Benjamin Bay

Berosini was a Las Vegas showroom entertainer, with an act involving performing orangutans. (One of his orangutans costarred alongside Clint Eastwood in the 1978 film Every Which Way But Loose.) PETA obtained a video of Berosini abusing his animals, and broadcast the video publicly, which led to Berosini’s show being canceled. Berosini claimed that the video was shot without his knowledge and was an invasion of his privacy. He sued PETA, the dancer who shot the original video, and a second animal rights organization, the Performing Animal Welfare Society. In trial, a jury sided with Berosini, but the Nevada Supreme Court overturned the decision on the grounds that Berosini had no reasonable expectation of privacy in the crowded backstage area where the video was shot.

The court’s decision defines five interrelated privacy rights: “The four species of privacy tort are: 1) un-reasonable intrusion upon the seclusion of another; 2) appropriation of the name or likeness of another; 3) unreasonable publicity given to private facts; and 4) publicity unreasonably placing another in a false light before the public. … Nevada has long recognized the existence of the right to privacy. … Additionally, we recognize today another tort … By virtue of statute, NRS 598.980-.988, a fifth tort must be considered and discussed in connection with the privacy judgments awarded here. This fifth ‘privacy’ tort is the tort of invasion of the right of publicity.”

“The law that is out there creates basically five categories of privacy rights: intrusion, appropriation, unreasonable publicity given to private facts, false light, and then the right of publicity,” says Courtney Sweet, an attorney with Gunderson Law Firm in Reno.

“The first one is intrusion, and what that refers to is an unreasonable intrusion into an individual’s seclusion,” says Sweet. “What it means is that someone has intentionally intruded onto another’s solitude or seclusion, which is like their private space or private affairs, and that this intrusion would be highly offensive to a reasonable person. That would be something where, say, you were in a dressing room at a store, and there’s a camera in that dressing room. That’s something that’s an intentional intrusion because they put the camera there, it’s onto someone’s solitude or seclusion, their private space. Because they’re in a dressing room, they don’t expect anyone to be seeing them there.

“The second one is appropriation, which is an intrusion on your name and likeness. This is very similar to the right of publicity, but essentially, appropriation is dealing with someone who is not famous or in the public eye for any reason. So if you just have a person on the street and you take their photograph and put it on a box of cereal, then that would be appropriation of their likeness.

“Unreasonable publicity given to private facts … the essential principal issue is that the facts might be true, but it’s someone’s private issue—this is someone who’s not a celebrity or anything like that—and publicizing these private facts about a person would be offensive and objectionable to a reasonable person.”

The fourth tort is referred to as “false light.”

“It’s giving publicity to a matter that places another person before the public in a false light,” says Sweet. “You have to have actual malice to be doing this, and the implicit statement of false fact.”

The final part of the law is the right to publicity. “The difference between right of publicity and appropriation is that right of publicity applies to a celebrity,” says Sweet. “If they take a picture of Angelina Jolie and put her on a box of cereal it makes it look like she’s endorsing it, just like it would with a regular person. But the harm is different. If you’re a celebrity, you make money off of your image, and your likeness and your name. … So the crime is more monetary, whereas in appropriation, it’s more of an invasion of your privacy because you’re not a person who can sell your image or your name for publicity.”

Though the court’s opinion was eventually withdrawn by the court on other grounds, it still stands as precedent on issues of privacy.

The decision even goes so far as to quote George Orwell’s 1984: “You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard and, except in darkness, every movement scrutinized.”

Though the court ruled against Berosini, the ruling declares, “We support the need for vigilance in preventing unwanted intrusions upon our privacy and the need to protect ourselves against the Orwellian nightmare that our ‘every movement [be] scrutinized.’”

Illustration by Benjamin Bay

Googly eyed monsters

Despite what some people seem to think—judging by the constant barrage of inane comments and embarrassing photos—Facebook is a public forum. It’s the opposite of Las Vegas; nothing stays on Facebook. And sure, there are adjustable privacy parameters, but even if you’ve successfully limited your entire profile so that only your friends can see it, just think of all the different people you’re friends with: Your mom, your drinking buddies, your boss, people you dated long ago, people you hope to date someday soon, etc.

There are things you keep private from your mom, and there are things you keep private from your drinking buddies, but these probably aren’t the same things. Your mom knows things about you that you probably don’t want your drinking buddies to know (like how you used to wet your pants in elementary school). And your drinking buddies almost certainly know stuff about you that you don’t want your mama to know (like how you wet your pants last week).

Then there’s the stuff that other people post about you without your knowledge or consent—photos, blog comments or videos. There might be, to pick a random, certainly not autobiographical, example, a drunken video of you acting like a crazy person fighting invisible monsters and then getting kicked out of a house party—and maybe, just maybe, somebody posted this video to YouTube without asking your permission. And maybe, just maybe, they added the name “Justin Bieber” to the title of the video to ensure that maybe, just maybe, 37,000 people have watched this video since 2007. You never know.

Of course you could scour the internet looking for all mentions of your name or depictions of your likeness. How would you go about this quest? You’d probably start by using a little search engine called Google, am I right?

Google is the one company rated “Hostile to Privacy” by the UK-based nonprofit watchdog agency Privacy International. That’s right, the very tool that many of us use regularly for our most private behavior—or at least to conjure images to aid in enjoyment of said private behavior—is hostile to our privacy. Google tracks and retains our searches, and the websites we visit. Also, big thanks PATRIOT Act, if the government asks, Google will hand this information over to them.

But mostly, Google just uses that information to send advertisers in our direction. When I performed a Google search for “privacy,” an ad appeared that read, “Privacy: Earn your customers’ trust with 8 powerful guidelines.” I’m not sure what that means, but it sounds like some kind of meta-con, an ad directed at advertisers who want to con their customers. Then there’s a link to a website, Weirdly, when I clicked on the link, I got a message that read “Coastal is now part of DuPont Sustainable Solutions.” In the heightened awareness world of privacy research, having a chemical manufacturer take over a privacy company seems significant, but maybe they just wanted the URL. Google could probably answer that question. Still, in this context, “Online safety training” seems like a pun.

In Harry Potter and the Chamber of Secrets, Ginny Weasley has a diary in which she writes her most private secrets, but it turns out the diary is possessed by the spirit of evil Lord Voldemort, so the diary urges her to do evil things. That’s kind of like Google.

Worry about the government

And then there’s the government. A July Washington Post story by Dana Priest and William M. Arkin reports that the federal government’s intelligence-gathering infrastructure “has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.”

Priest and Arkin estimate about 1,271 government organizations, 1,931 private companies, and 854,000 people work in counterterrorism intelligence-gathering. These are intelligence gatherers. Which is to say, spies. Which is to say, people who intrude on other people’s privacy as part of their jobs.

Of course, it should be noted that, for whatever invasions of privacy the government is conducting, the government itself is not immune. The ongoing WikiLeaks information dump is, in a strange sense, a violation of the privacy of the U.S. government. But it’s largely viewed as a victory for accountability.

“The only way to manage this is true transparency and no anonymity,” said Google’s CEO, Eric Schmidt, at a Techonomy conference in Lake Tahoe last August. Maybe that’s why Google seems to read every email I send using my Gmail account.

If, using my Gmail account, I send myself an email with the word “privacy” in the subject line, when I open that email, there’s an ad for “Privacy Screens” from Portable Partitions. Another ad, for, reads, “Who’s searching you?”

Everything online is being monitored by some person or something. Some creepy guy staring at a monitor. What are our legal protections against online invasions of privacy?

“That’s where it gets really gray,” says Sweet. “The law doesn’t catch up to these things very quickly.”

Technology develops much faster than law. On the internet, in public places like the airport, on our cellular phones, it’s like we live in a world without pants. Our private parts are totally exposed.