“For me, trust has to be earned. It’s not something that can be demanded or pulled out of a drawer and handed over. And the more government or the business sector shows genuine regard and respect for peoples’ privacy in their actions, as well as in their word and policies, the more that trust will come into being.”Dr. Anita L. Allen
Dr. Anita Allen serves as Vice Provost for Faculty and Henry R. Silverman Professor of Law and Philosophy at the University of Pennsylvania. Dr. Allen is a renowned expert in the areas of privacy, data protection, ethics, bioethics, and higher education, having authored the first casebook on privacy law and has been awarded numerous accolades and fellowships for her work. She earned her JD from Harvard and both her Ph.D. and master’s in philosophy from the University of Michigan. I had the opportunity to speak with her recently about her illustrious career, the origins of American privacy law and her predictions about the information age.
Q: Dr. Allen, a few years ago you spoke to the Aspen Institute and offered a prediction that “our grandchildren will resurrect privacy from a shallow grave just in time to secure the freedom, fairness, democracy, and dignity we all value… a longing for solitude and independence of mind and confidentiality…” Do you still feel that way, and if so, what will be the motivating factors for reclaiming those sacred principles?
A: Yes, I believe that very hopeful prediction will come true because there’s an increasing sense in the general public of the extent to which we have perhaps unwittingly ceded our privacy controls to the corporate sector, and in addition to that, to the government. I think the Facebook problems that had been so much in the news around Cambridge Analytica have made us sensitive and aware of the fact that we are, by simply doing things we enjoy, like communicating with friends on social media, putting our lives in the hands of strangers.
And so, these kinds of disclosures, whether they’re going to be on Facebook or some other social media business, are going to drive the next generation to be more cautious. They’ll be circumspect about how they manage their personal information, leading to, I hope, eventually, a redoubled effort to ensure our laws and policies are respectful of personal privacy.
Q: Perhaps the next generation heeds the wisdom of their elders and avoids the career pitfalls and reputational consequences of exposing too much on the internet?
A: I do think that’s it as well. Your original question was about my prediction that the future would see a restoration of concern about privacy. I believe that, yes, as experience shows the younger generation just what the consequences are of living your life in the public view and there will be a turnaround to some extent. To get people to focus on what they have to lose. It’s not just that you could lose job opportunities. You could lose school admissions. You could lose relationship opportunities and the ability to find the right partner because your reputation is so horrible on social media.
All of those consequences are causing people to be a little more reserved. It may lead to a big turnaround when people finally get enough control over their understanding of those consequences that they activate their political and governmental institutions to do better by them.
Q: While our right to privacy isn’t explicitly stated in the U.S. Constitution, it’s reasonably inferred from the language in the amendments. Yet today, “the right to be forgotten” is an uphill battle. Some bad actors brazenly disregard a “right to be left alone,” as defined by Justice Brandeis in 1890. Is legislation insufficient to protect privacy in the Information Age, or is the fault on the part of law enforcement and the courts?
A: I’ve had the distinct pleasure to follow developments in privacy law pretty carefully for the last 20 years, now approaching 30, and am the author or co-author of numerous textbooks on the right to privacy in the law, and so I’m familiar with the legal landscape. I can say from that familiarity that the measures we have in place right now are not adequate. It’s because the vast majority of our privacy laws were written literally before the internet, and in some cases in the late 1980s or early 1990s or early 2000s as the world was vastly evolving. So yes, we do need to go back and refresh our electronic communications and children’s internet privacy laws. We need to rethink our health privacy laws constantly. And all of our privacy laws need to be updated to reflect existing practices and technologies.
The right to be forgotten, which is a right described today as a new right created by the power of Google, is an old right that goes back to the beginning of privacy law. Even in the early 20th century, people were concerned about whether or not dated, but true information about people could be republished. So, it’s not a new question, but it has a new shape. It would be wonderful if our laws and our common law could be rewritten so that the contemporary versions of old problems, and completely new issues brought on by global technologies, could be rethought in light of current realities.
Q: The Fourth Amendment to the Constitution was intended to protect Americans from warrantless search and seizure. However, for much of our history, citizens have observed as surveillance has become politically charged and easily abused. How would our founders balance the need for privacy, national security, and the rule of law today?
A: The fourth amendment is an amazing provision that protects persons from a warrantless search and seizure. It was designed to protect peoples’ correspondence, letters, papers, as well as business documents from disclosure without a warrant. The idea of the government collecting or disclosing sensitive personal information about us was the same then as it is now. The fact that it’s much more efficient to collect information could be described as almost a legal technicality as opposed to a fundamental shift.
I think that while the founding generation couldn’t imagine the fastest computers we all have on our wrists and our desktops today, they could understand entirely the idea that a person’s thoughts and conduct would be placed under government scrutiny. They could see that people would be punished by virtue of government taking advantage of access to documents never intended for them to see. So, I think they could very much appreciate the problem and why it’s so important that we do something to restore some sense of balance between the state and the individual.
Q: Then, those amendments perhaps anticipated some of today’s challenges?
A: Sure. Not in the abstract, but think of it in the concrete. If we go back to the 18th and 19th centuries, you will find some theorists speculating that someday there will be new inventions that will raise these types of issues. Warren and Brandeis talked specifically about new inventions and business methods. So, it’s never been far from the imagination of our legal minds that more opportunities would come through technology. They anticipated technologies that would do the kinds of things once only done with pen and paper, things that can now be done in cars and with computers. It’s a structurally identical problem. And so, while I do think our laws could be easily updated, including our constitutional laws, the constitutional principles are beautiful in part because fundamentally they do continue to apply even though times have changed quite a bit.
Some of the constitutional languages we find in other countries around ideas like human dignity, which is now applied to privacy regulations, shows that, to some extent, very general constitutional language can be put to other purposes.
Q: In a speech to the 40th International Data Protection and Privacy Commissioners Conference, you posited that “Every person in every professional relationship, every financial transaction and every democratic institution thrives on trust. Openly embracing ethical standards and consistently living up to them remains the most reliable ways individuals and businesses can earn the respect upon which all else depends.” How do you facilitate trust, ethics, and morality in societies that have lost confidence in the authority of their institutions and have even begun to question their legitimacy?
A: For me, trust has to be earned. It’s not something that can be demanded or pulled out of a drawer and handed over. Unfortunately, the more draconian and unreasonable state actors behave respecting people’s privacy, the less people will be able to generate the kind of trust that’s needed. And the more government or the business sector shows genuine regard and respect for peoples’ privacy in their actions, as well as in their word and policies, the more that trust will come into being.
I think that people have to begin to act in ways that make trust possible. I have to act in ways that make trust possible by behaving respectfully towards my neighbors, my family members, and my colleagues at work, and they the same toward me. The businesses that we deal with have to act in ways that are suggestive of respect for their customers and their vendors. Up and down the chain. That’s what I think. There’s no magic formula, but I do think there’s some room for conversation for education in schools, in religious organizations, in NGOs, and policy bodies. There is room for conversations that enable people to find discourses about privacy, confidentiality, data protection that can be used when people demonstrate that they want to begin to talk together about the importance of respect for these standards.
It’s surprising to me how often I’m asked to define privacy or define data protection. When we’re at the point where experts in the field have to be asked to give definitions of key concepts, we’re, of course, at a point where it’s going to be hard to have conversations that can develop trust around these ideas. That’s because people are not always even talking about the same thing. Or they don’t even know what to talk about under the rubric. We’re in the very early days of being able to generate trust around data protection, artificial intelligence, and the like because it’s just too new.
Q: The technology is new, but the principles are almost ancient, aren’t they?
A: Exactly. If we have clear conceptions about what we’re concerned about, whether its data protection or what we mean by artificial intelligence, then those ancient principles can be applied to new situations effectively.
Q: In a world where people have a little less shame about conduct, doesn’t that somehow impact the general population’s view of the exploitation of our data?
A: It seems to me we have entered a phase where there’s less shame, but a lot of that’s OK because I think we can all agree that maybe in the past, we were a bit too ashamed of our sexuality, of our opinions. Being able to express ourselves freely is a good thing. I guess I’m not sure yet on where we are going because I’m thinking about, even like 50 years ago, when it would have been seen as uncouth to go out in public without your hat and gloves. We have to be careful that we don’t think that everything that happens that’s revealing is necessarily wrong in some absolute sense.
It’s different to be sure. But what’s a matter of not wearing your hat and gloves, and what’s a matter of demeaning yourself? I certainly have been a strong advocate for moralizing about privacy and trying to get people to be more reserved and less willing to disclose when it comes to demeaning oneself. And I constantly use the example of Anthony Weiner as someone who, in public life, went too far, and not only disclosed but demeaned himself in the process. We do want to take precautions against that. But if it’s just a matter of, “we used to wear white gloves to Sunday school, and now we don’t…” If that’s what we’re talking about, then it’s not that important.
Q: You studied dance in college and then practiced law after graduating from Harvard, but ultimately decided to dedicate your career to higher education, writing, and consulting. What inspired you to pursue an academic career, and what would you say are the lasting rewards?
A: I think a love of reading and ideas guided my career. Reading, writing, and ideas, and independence governed my choices. As an academic, I get to be far freer than many employees are. I get to write what I want to write, to think about what I want to think, and to teach and to engage people in ideas, in university, and outside the university. Those things governed my choices.
I loved being a practicing lawyer, but you have to think about and deal with whatever problems the clients bring to you. You don’t always have that freedom of choice of topic to focus on. Then when it comes to things like dance or the arts, well, I love the arts, but I think I’ve always felt a little frustrated about the inability to make writing and debate sort of central to those activities. I think I am more of a person of the mind than a person of the body ultimately.
This article is an exclusive excerpt from the book “Tomorrow’s Jobs Today: Wisdom and Career Advice from Thought Leaders in AI, Big Data, Blockchain, the Internet of Things, Privacy, and More” available soon from John Hunt Publishing.