Wikileaks: Lessons For Consumer Privacy

The website Wikileaks recently published hundreds of thousands of confidential State Department cables. These communications apparently reveal the details of conversations with, and personal impressions and assessments of, foreign leaders and diplomats. Many fear that the leak will undermine international relations in profound and unknowable ways. One of the unintended consequence of the leak, however, may be to strengthen the case for a national consumer privacy law.

Intimacy would not be possible without privacy—as Charles Fried, Tom Gerety, Robert Gerstein, and Julie Cohen so effectively show. Privacy means that the individual may choose to whom to reveal the details of her inner life. A decision to trust begets trust, such that I will be more likely to reveal myself to those who reveal themselves to me. Escalating, mutual revelation is how friendships, families, and other intimacies often grow.

What is true of people is presumably true of states. Ground rules of confidence and secure channels of communication spark candor, which in turn breed trust and intimacy. Interstate intimacy has profound repercussions. Trust, won even through gossip, facilitates diplomacy and hence has the potential to avert hard power. As Steven Aftergood of FAS points out, “If Wikileaks were … anti-war, it would safeguard, not disrupt, the conduct of diplomatic communications.”

We should not take this analogy too far: there is a big difference between safeguarding interpersonal/state communications and hiding policy decisions. The former is necessary for effective diplomacy, the latter is potentially destructive to democracy. I certainly have a problem with, for instance, secret negotiations of a binding copyright treaty.

The cables reveal both confidences and policy. Everyone knows that even non-clandestine diplomats must keep their eyes and ears open, but the leaked communications reveal instructions from the State Department for diplomats to secure specific details about their counterparts abroad. Conversations and personal passwords alike can be aggregated and downloaded, converting intimate interpersonal meetings into utilitarian data points. Mixing diplomacy with intelligence gathering may be a poor policy decision in that it undermines the very trust required for intimacy.

But the twin lessons of Wikileaks should be obvious. And, I would argue, apply just as readily to companies and consumers as they do states. First, there must be a space for diplomatic and consumer candor. By consumer candor, I mean nothing more grandiose than a well-earned comfort in revealing to a business who you are and what it is you want, so that they can provide that thing to you.

Second, it is possible and often desirable to separate out functions such as diplomacy and sales from surreptitious information gathering activity. As with diplomats, companies do not earn trust by using every interaction with a consumer to profile them, much less by storing that information in a database that can, and often does, leak out.

Maybe these lessons will finally seep in. It took the revelation of video records of a prominent judge, after all, for Congress to pass the Video Privacy Protection Act. Here, again, we see bipartisan condemnation of the leak as disruptive to national security and damaging to U.S. foreign relations. Couple this rare point of agreement with a bipartisan consumer bill and an incoming Speaker who once filed a lawsuit under federal electronic privacy law and some real possibilities open up.

Comments

While I would love for your conclusions to be the takeaway that comes from this latest Wikileaks release, given the authoritarian, hypocritical and defensive position that many in our government have taken on these matters, I'm afraid the conclusions will be somewhat different. Actually, we are already seeing how the issues are being framed. We have a number of Congressional members, as we had with members of the Administration in the previous releases, taking the position that a crime of treason was committed. In some cases, they're simply looking for laws to apply here or to be created where none exist. Never mind that the facts, and in some cases the crimes, being shown by these documents are reprehensible. There is nearly zero focus on that.

The rhetoric being bandied suggests that they will not see the analogy you're conveying here. They will certainly see why gov't will need to protect its privacy through additional legal means, but they will never link this to individuals' needs to exercise their freedoms and a need to have their privacy protected. The vested commercial interests aligned to continue to plow through our personal information are powerful and for all practical purposes, these interests have bought & paid for our legislators (note, I'm not trying to be conspiratorial here). A good ProPublica article shows at least one side of this equation (http://bit.ly/eZmvQX).

Imagine that, publications that have only emerged in the past few years, Wikileaks and ProPublica, are now garnering more trust from us than the oldest of institutions that we have empowered. Sad actually.

It's becoming evident that the crisis which ties all of the other crises together, is the crisis of trust. It is quickly eroding. Trust in our elected officials. Trust in our currency. Trust in our institutions. Trust in the Third Estate. Trust in our financial systems. Like everything else over the past few decades, the erosion of trust has accelerated as we have more easily been able to peel the onion of our social, political and economic systems in ways that were never so easy before. Sure, we had a Watergate, we had the Pentagon Papers, but the speed and amount of disclosures happening now is accelerating and our legislators seem ill equipped to face up to this and deal w/acknowledging the problem and addressing this root cause of trust erosion. They are not showing the strength to be able to police themselves or the institutions they have been sworn to protect. The Citizens United case, after being decided by SCOTUS (in error as Justice Stephens so clearly articulated), should have been remedied through a strong follow-up act by Congress to right a clear wrong, but it wasn't.

Perhaps my perspective is a tad gloomy, but when I see the assaults on our person as is happening w/the TSA as of late, on our public domain of ideas as is happening through copyright legislation, COICA and ACTA, on our privacy as is happening through the various attacks by law enforcement on our Fourth Amendment rights and through several of the components of the upcoming Privacy Bill debates, I'm not sure I see a silver lining.

All this to say, that I hope your optimism wins the day, but I seriously doubt it ;)

Interesting article. Julian Assange, the head of wikileaks.org, announced yesterday that in the next weeks the website will disclose information on a major U.S. bank. It will be interesting to see if the information disclosed will concern the way the bank treated confidential information obtained from its customers. It will also be interesting to see if the information will contain - in any other way - customers' confidential data and how the leak of this information happened.

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