My colleague Avivah Litan has given her insightful and thought-provoking read on the recent US Supreme Court decision here.
Avivah correctly identifies the “opt-in”/”opt-out” dichotomy as a critical element of the discussion. Tracking for law enforcement purposes needs, of course, to be set aside from the debate over user consent… but outside law enforcement – whether in the commercial domain or for public sector service delivery – I strongly believe that there should always be an opt-out available. In fact, my personal opinion is that “opted out” should always be the default, with an opt-in choice if the user wishes.
Of course, if there’s an opt-out, some of the people who exercise it will be virtuous, and some will not. There are those whose take the old “if you have nothing to fear, you have nothing to hide” view – but as anyone who has followed my blogging will know, that’s a view that I find misguided, harmful and pernicious. Avivah’s distinction between law enforcement and the commercial sector helps indicate one of the reasons why: it is clearly not the case that everything the law enforcement authorities know about me should, of right, be made public. Similarly, there are things which commercial service providers know about me which law enforcement authorities have no business knowing. The “nothing to hide, nothing to fear” brigade cannot cope with the idea that those who may seek to harm me can do so whether I have anything to hide or not.
In US v Jones, the Supreme Court was explicit about the citizen’s legitimate expectation of privacy. I tend to take a strong line on that. The ‘default setting’ is not that if I have nothing to hide, I have nothing to fear… it is that unless you have a provable, legitimate reason for doing so, you have no business meddling in my affairs.
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