The beginnings of the end of privacy

What has happened to our privacy? Certainly, if recent popular titles are to be trusted--The End of Privacy, The Unwanted Gaze, The Naked Crowd, No Place to Hide (two different books!), Privacy in Peril, The Road to Big Brother, One Nation under Surveillance, and perhaps the creepiest entrant, I Know Who You Are and I Saw What You Did--we Americans are in the midst of an unparalleled privacy crisis. On one side are the Snowden revelations, Google Glass, drones, smart refrigerators, and commercial algorithms that seem to know us better than we know ourselves. On the other is the individual quest for self-exposure in an ever-expanding universe of social media: Here, it is not the state or corporations that seem to imperil privacy but, rather, willing exhibitionists, eager to dispense with the concept altogether as they share intimate details of their personal lives with strangers.

Few, however, have probed these twin worries about surveillance by powerful organizations and the "self-surveillance" of individual citizens--or, for that matter, how they might be related. Indeed, for a topic so consuming, it's striking that we know so little about how we reached this point. Commentators of all stripes present threats to personal privacy as novel, even unprecedented. Yet the conditions they bewail, including the brave new worlds of Big Data and self-publicity, have been long in the making. Technological, political, and bureaucratic developments in the United States, afoot for at least a half century, presaged and continue to shape current thinking about privacy. Revisiting an earlier crisis around privacy--both the remedies enlisted to forestall it and its ambiguous aftermath--may therefore prove enlightening.

In particular, we should turn our attention to the era that introduced the resonant concept of the "surveillance society": the decade stretching from the mid-1960s to the mid-1970s. Although a "right to privacy" had been proposed as early as 1890, these were the years when privacy was first widely recognized in the United States as a social and political problem. (1) This era also witnessed far-reaching attempts to preserve it. Beginning with the Supreme Court's 1965 pronouncement in Griswold v. Connecticut that "zones of privacy" were guaranteed by "penumbras" of the Bill of Rights, a cascade of rulings across the next decade established privacy as a constitutionally protected right. (2) Although Griswold (which concerned the distribution of advice about contraception to married couples) specifically addressed "notions of privacy surrounding the marriage relationship," (3) the rulings that followed it made privacy the property of individual citizens who carried it with them as they traveled through society. Less than a decade later, new rights flowed from watershed legislation passed by the US Congress in the form of the Privacy Act of 1974.

What would become clear, however, was that new ways of housing and accessing personal data in the 1960s and 1970s could cast doubt on this liberal language of individual rights and state protections. A gathering understanding of the United States as a surveillance society made constitutional or legal victories for privacy understood...