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Can the government stick us with privacy we don’t want? It can, it does, and may need to do more of it. Anita Allen discusses public regulation of privacy at home.

Image courtesy of interviewee. March 7, 2024

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The speaker discusses the interplay between digital culture and privacy law, particularly in the context of India. They reflect on their surprise at being cited by the Indian Supreme Court in a crucial privacy case involving a national biometric identification system called the Aadhaar card. This video video case raised essential questions about the right to privacy under the Indian Constitution, ultimately leading to the recognition of privacy as a fundamental right.

The speaker shares insights from their scholarly work that emphasizes the importance of privacy, arguing it should be a foundational right protected by law. They highlight the contrasting privacy landscape between India and the United States, noting that where India has recently secured constitutional privacy rights, the U.S. has seen a regression with decisions like Dobbs, which restrict personal privacy rights.

The speaker expresses concern about the fragmented and outdated nature of privacy laws in the U.S., compared to stronger protections found in Europe and India. They advocate for more cohesive and comprehensive privacy legislation in the U.S., emphasizing the need for a philosophical basis to inform these laws.

Throughout their talk, the speaker illustrates the real-world implications of privacy rights, commemorating both their academic contributions to this discourse and their involvement in civil society initiatives aimed at improving privacy protections. They conclude with a future-focused perspective on the importance of recognizing privacy within broader societal issues, including dignity and rights for marginalized groups, and celebrate the potential for collective action toward reform.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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As everyone knows, we are now living in a digital world

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where information is being rapidly collected, utilized,

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analyzed, and, it's improving our lives in many ways,

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but also, producing concerns

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about data protection and privacy.

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And so, most of my scholarship of late has been about the,

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interface between digital culture and,

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and the law, as it relates to privacy.

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Yeah. The, the situation in, in,

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in India was a great context for me,

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for thinking hard about, how the privacy of, of millions

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and millions of people can be affected

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by a single governmental policy.

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I remember very vividly, I was,

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At home one day and I got an email from a colleague,

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at the Electronic Privacy Information Center in Washington

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saying, Anita, you've been cited by the Supreme Court

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of India in the opinion,

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in a leading case involving privacy and biometrics.

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And I was shocked because I've never been to India

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and I don't know, many Indian lawyers.

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And I was surprised that somehow my ideas had come

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to be a part of the conversation

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About whether or not there's a right to privacy in India.

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So, I began to,

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to look hard at this case. The case is called,

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Uh, Swanee versus, the unit of India.

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And that the case brought by a former judge

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Who was protesting the fact

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that the government had implemented a policy

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of requiring every Indian citizen

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to have a special ID card called an odd HAR card.

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And the odd HAR card was produced by taking,

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fingerprints and Irish scans and,

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and, phenotypical data combining them

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to create a unique identifier.

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And this was a way so that if a person wanted to apply

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for any kind of public service

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or benefit, the government would know they were

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Indeed a citizen of India.

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So, that was the issue. Can this card though,

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Uh, be, Uh, required

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Without violating the rights

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of privacy of people in India?

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Well, the problem was, at the time, there was no, right

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to privacy recognized by the Indian Supreme Court.

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So what this case, Putta Suwanee did was it actually

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Raised the question, is

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There a right to privacy under the Indian Constitution?

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And if there is, would that right

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to privacy require either abandoning the odd heart project

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or putting in restrictions to make sure that the data

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that was collected was not used in

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ways that weren't authorized?

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What my work was cited for was the idea

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that privacy is a fundamental,

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or I would say foundational right?

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Meaning a right, which on an an ethical level,

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a moral level on a human rights level, ought

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to be embodied in the positive law of any, any nation.

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And so, to make the case that that privacy is a very,

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very, very important right.

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The Indian Supreme Court cited my work

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and the work of several others,

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American scholars, I might add.

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So that was the, that was the,

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that was the ground. Ironically,

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Um, the Indian Supreme Court

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Adopted a perspective on privacy,

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which now the US Supreme Court has questioned,

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and some would say abandoned in a recent decision,

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called the Dobbs case, in which the Supreme Court,

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struck down the abortion right

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to privacy in the United States.

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So, in a way, you might say that right now,

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using the language of dignity

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and the Indian Constitution, Indians have more secure

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constitutional privacy than the United States citizens have.

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I've written a couple of books about privacy,

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and in fact, if I can be a little immodest,

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I was the first American philosopher,

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maybe the first philosopher in the world to write a, a,

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a book, a philosophical book about privacy.

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So that was Uneasy Access,

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which I published way back in 1988.

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Then I published other books about privacy.

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One called Why Privacy Isn't Everything.

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And then you mentioned Unpopular Privacy.

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So what these books do is, is, the first two

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chronicle the, the gender and privacy issue.

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Like, what is it like for women to experience

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or not experience privacy?

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What are the values at stake?

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How do we understand what privacy means?

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What the definition of privacy, for example?

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So in the first couple of books I'm exploring,

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what privacy means for women, I expand to other,

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other population groups, African Americans,

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people in general, in the second book, why privacy is,

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and everything in an account of accountability,

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because I think that one of the things which people

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of color are particularly concerned about,

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and I include myself

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and had obviously, is,

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the ways in which privacy values don't work for some people.

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They create a space of, of non visibility in which people

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of color women can be abused,

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discriminated against, et cetera.

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So we're skeptical about privacy,

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and we, we love the idea

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that accountability is a counterweight to privacy.

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So the second book explores the, theories about,

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about accountability that are, that are,

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that are influenced by, by feminist scholarship.

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And then, in unpopular privacy,

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I do something entirely different, which is to say,

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you know, maybe privacy is such an important value

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that it shouldn't be treated like ice cream.

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You know, something that if you want it, you get,

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get, you say yes.

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If you don't want it, you say no.

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But rather, maybe privacy is so important

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that people should not have the choice

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to abandon their privacy.

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And I explore the idea that there ought

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to be paternalistic laws

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that actually limit people's ability to wave

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or give up their privacy.

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And I say that, that, that just

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as we have laws against in self enslavement, we ought

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to have laws against, the abrogation of our privacy,

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because it turns out that privacy like slavery has a, has a,

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has consequences for freedom.

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And, and freedom has consequences for democracy.

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The court was remarkably interested in,

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in theory and philosophy.

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I mean, I, I don't usually see an American Supreme Court

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opinions like, you know, we, we, like India, have a,

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have a tradition of the judges articulating the reasons

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for their decisions, in and opinions. And

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They, the, the waning opinion was,

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I think over 200 patients long

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and included a lot of references to philosophy and theory.

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I think that that, that privacy rights

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and the constitution, it, it invites philosophical analysis

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because, because most world constitutions don't have an

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explicit right to privacy in them,

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but they have language like, that there's a right

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to dignity or right to be treated

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with one's liberties, right?

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To have family, privacy correspondence, privacy,

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privacy of our papers, privacy of our, of our, of our,

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of our health decisions.

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And, and so, so one way to to,

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to elevate those conversations about privacy

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and to link different conversations about privacy

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together is to go up to a kind of a philosophical level.

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And the main philosophical theories of privacy are

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that privacy protects, our freedom

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and our liberty, in general, those that affect

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and relate to private life, like marriage, family,

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childbearing, health and so forth.

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But also, there's a theory of privacy.

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We said that privacy is all about, not about

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so much about freedom or autonomy or liberty, but about,

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but about dignity, about being treated with respect,

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when it comes to matters affecting one's own body in person.

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And then there are many other theories too there.

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You know, there's a theory that privacy is all about

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protecting norms of data flow

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and norms of data, data, use.

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So, so, I've been part of a, of a conversation.

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It's been going on now for more than 45 years about

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how do we define privacy.

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But lately, I've come to believe that,

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and I, I mentioned this by the way in the paper,

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that I write about the India case, that,

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that there's a politics to privacy discourse.

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Um, that it's not just that we wanna define privacy,

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we wanna understand that if we are defining privacy,

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we're also taking part of a, in a conversation about

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what ought to be the way the world looks.

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So if you are, if you think that, privacy is too vague

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and too, too, obscure for the law, then

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that means that you have no basis for, for example,

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abortion rights or the right to die

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or, gay rights, right?

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And, so, so we don't want a conversation about privacy

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definition to turn into an exercise about

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how can you limit the definition so narrowly

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that one can no longer claim that there's a right, a right

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to privacy that's effective to help,

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marginalized communities.

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So that's part of the conversation as well.

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So I was thrilled that in a country

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of brown people like India, that,

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there would be this philosophically inspired right

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to privacy, which was based on the idea

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of dignity in their constitution,

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which is explicit in Indian

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constitution, by the way, the idea of dignity.

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And, and then, to my delight,

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after the Wanni case was decided, within a year,

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that decision had been applied to decriminalize

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same sex sex in India.

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And so the, the, the, the, the pride for me is that my,

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my scholarly ideas not only contributed to a basis of law

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for critiquing a biometric identifier,

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but then it went on to be a part of the body of law

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that enables, people who are gay to be, to be free,

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from criminal prosecution in, one

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of the nation's largest

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democracy, one of the world's largest.

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We are, behind Europe, as you know,

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the Europe has the GDPR, great Britain has,

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has strong privacy laws that are,

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that are essentially the GDPR.

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And, and those laws give individuals a great deal

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of protection against big tech

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and against, against,

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private enterprise in general,

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where private rights may not be as,

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economically lucrative,

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if they're, if they're restricted.

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So anyway, then, so the, so Europe has privacy laws.

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We don't, we have a hodgepodge of privacy laws.

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Most of them are out of date.

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And efforts to get a national privacy law enacted have

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been very frustrating.

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And we've tried again and again

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and again, bills get introduced into Congress.

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Several bills have been introduced in the last couple

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of years, having to do with, with data protection,

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creating data protection agency with AI protections.

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And not a single one has passed.

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Uh, president Biden was able

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to issue an executive order recently protecting,

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some AI concerns,

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but for the most part, despite, the work of scholars

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who are on board with privacy,

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civil society organizations, of which I am,

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have been a member, have been, have not, have been,

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you know, on board with privacy, academics and so forth,

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but we've not been able to, to push through congress a, a,

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a national data protection law.

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So we don't have anything, similar to the GDPR

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or to, what they now have in, in India,

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based in the constitution,

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not the statutory nor constitutional.

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We're behind, we're behind many other important countries,

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Germany, France, Britain, India, and so forth, Canada.

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Um, so I, I, but I keep, I keep pushing.

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So not only do I write as a scholar,

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but I also have been on the boards of several organizations

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that promote data protection.

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Um, I was the board chair, chair board

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for the Electronic Privacy Information Center in Washington

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for a couple of recent years.

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And I've been, I'm currently serving on the board

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of something called the Future of Privacy Forum,

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which promotes conversations about privacy, that cross

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between the private sector and the public sector.

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Um, so I'm, I'm involved in, in trying to get better privacy

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law in the United States

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and policy, through my, my,

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work in civil society organizations through my work

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as an academic and as a, as a person, as a, as a,

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as a citizen, as a parent, as a, as a, you know,

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a mother, a wife, et cetera.

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I see how pri how important privacy

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rights are in everyday life.

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When you shop and go to the doctor, when you try

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to take your children to the doctor, you know, when you,

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sign up for, for schools, you are, you are giving data

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that then can be used by, by, a variety of, of, of,

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of, of entities.

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And I, on, on a personal level, I worry about, you know,

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what, what's happening to the data of myself

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and my children, and what will happen to

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that data, into the future.

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We do have an increase in regulation of data in the sense

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that over since the 1970s, we've enacted,

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about 12 major privacy laws.

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And I'll just mention of two

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or three, we do have a health privacy law.

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Its nickname is hipaa.

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And, the HIPAA privacy rule does protect, people's,

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health information, when they go to the doctor, go

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to a hospital, and it protects it, you know,

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relatively well for 50, for 50 years, even after they die.

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So it's a pretty strong, you know, privacy, right?

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So hipaa, we have a law that we nicknamed ferpa,

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which is a family education

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and right to privacy Act, which protects

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student school records.

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We have, a privacy act which protects the government

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held records that might have our names in them,

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on, on the federal level.

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And we have laws protecting driver's

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information and genetic privacy.

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And, and I could go a a little bit further,

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communications, privacy, we have law, we call it ecpa,

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which protects us against, wiretapping and, and,

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and, accessing our stored data.

13:00.805 --> 13:02.865
But, but all that I sort of, it, we call it a,

13:02.895 --> 13:05.345
some people call it a crazy, well, it's opposed

13:05.345 --> 13:08.745
to a unified, law like you have in, you have in,

13:08.745 --> 13:11.225
in Europe and, and in the uk It's, it's a bunch

13:11.225 --> 13:13.465
of different statutes that, that, that, that,

13:13.465 --> 13:16.425
require a bunch of different regulations, and,

13:16.425 --> 13:19.225
and have very, very different terms of like,

13:19.225 --> 13:20.585
when they come into effect,

13:20.605 --> 13:22.145
who they affect, how long they come into effect.

13:22.165 --> 13:25.305
So it's very difficult to learn American privacy law.

13:25.425 --> 13:26.505
'cause it's not one thing.

13:26.505 --> 13:28.425
It's then on the state level, this is

13:28.425 --> 13:29.665
where the action is today,

13:30.375 --> 13:32.665
because we don't have a federal law,

13:33.285 --> 13:34.425
our states are beginning

13:34.425 --> 13:36.585
to pass their own data protection laws.

13:36.645 --> 13:37.945
And my critique of those laws

13:37.945 --> 13:39.145
is they tend to be very narrow.

13:39.375 --> 13:41.585
They tend to not take civil rights seriously.

13:42.205 --> 13:44.545
Um, they tend to be many of them pro-business

13:44.765 --> 13:46.065
as opposed to being more balanced.

13:46.785 --> 13:49.265
Virginia has such a law, for example, California

13:49.685 --> 13:50.745
and a couple other states.

13:50.885 --> 13:52.185
So this we see on the state level,

13:52.185 --> 13:53.625
and some people are saying, Bravo,

13:53.765 --> 13:55.225
if you can't do it on the federal level,

13:55.355 --> 13:56.705
let's get it done on the state level.

13:56.965 --> 13:58.985
The problem with that is that then you have 50

13:59.255 --> 14:00.785
different regimes.

14:01.525 --> 14:04.265
And once again, it's hard to know what what's the law?

14:04.565 --> 14:06.745
And, you know, Americans are not, are not people who,

14:06.925 --> 14:08.185
who just live in one state

14:08.205 --> 14:10.065
and then, you know, for their whole lives.

14:10.455 --> 14:15.425
I've lived in Georgia, Alabama,

14:15.535 --> 14:20.025
Florida, New York, Michigan, Massachusetts, Pennsylvania,

14:20.565 --> 14:21.785
Connecticut.

14:22.245 --> 14:26.105
Uh, so, so what, what, so how do I learn what the law is?

14:26.605 --> 14:29.305
And I think on a philosophical level, it's, if there,

14:29.445 --> 14:32.305
if there's not some clear set of ideas,

14:32.535 --> 14:34.465
like fair information practice, there's something

14:34.465 --> 14:36.745
that links together all these, these state laws,

14:36.975 --> 14:40.025
what you get is the kind of chaos that drives lawyers crazy,

14:40.025 --> 14:42.665
because we don't, you know, to advise our clients, we have

14:42.665 --> 14:44.585
to, well, if you cross the line over here,

14:44.585 --> 14:45.705
the law changes in this way

14:45.705 --> 14:46.865
if you're gonna do business over there.

14:47.205 --> 14:49.825
So it's very, very confusing and chaotic right now.

14:49.825 --> 14:50.865
And I might just add,

14:50.965 --> 14:52.645
because it does relate to this,

14:52.865 --> 14:56.485
not only is data protection law today in the US in chaos,

14:57.305 --> 14:59.165
but, privacy law in general,

14:59.445 --> 15:00.805
'cause of the dobs suspicious in chaos,

15:00.805 --> 15:04.565
because now we have 50 different abortion laws.

15:04.945 --> 15:07.885
And so a young woman who goes to college in New York,

15:08.025 --> 15:09.965
but is from, Arizona

15:10.145 --> 15:14.125
and has a summer job in Texas, she, again, how does she know

15:14.125 --> 15:15.805
what her, what her abortion rights are?

15:16.545 --> 15:19.045
So, I just find that the US is kind

15:19.045 --> 15:20.205
of in chaos right now,

15:20.665 --> 15:23.645
and I'm, as an academic, concerned

15:23.645 --> 15:28.565
that my work might be, helpful in this respect to maybe

15:29.835 --> 15:31.765
explain why the chaos is not desirable

15:31.825 --> 15:35.765
and get us more unified, federal, sensible laws founded in,

15:35.865 --> 15:37.845
in, in important philosophical principles.

15:38.425 --> 15:40.885
But I also realize that, that as a single person

15:41.065 --> 15:43.965
and single academic, the the chances that my work

15:43.965 --> 15:46.405
and my impact will actually be the key.

15:46.505 --> 15:47.445
You know, it's a ridiculous

15:47.445 --> 15:48.565
thing that I would have that power.

15:48.585 --> 15:51.285
But, but I think that lots of us together might, well,

15:51.465 --> 15:52.845
as we keep pushing and pushing

15:52.865 --> 15:54.805
and pushing, eventually have some kind of impact,

15:54.805 --> 15:56.725
but it's been very frustrating,

15:56.725 --> 16:01.525
in the last several years as we celebrate the, creation

16:01.585 --> 16:04.565
of a constitutional right to privacy in India.

16:04.945 --> 16:08.365
We also worry that, in, in general,

16:08.515 --> 16:11.325
India's political situation is such that,

16:11.355 --> 16:14.125
some people may not be able to enjoy the benefits

16:14.145 --> 16:15.725
of the law as well as others.

16:15.825 --> 16:18.845
So the, so having the, having the right law doesn't mean

16:18.845 --> 16:21.165
that everybody gets to take advantage of, of that law,

16:21.505 --> 16:23.885
or that the political climate of a country is such

16:23.885 --> 16:28.205
that people can, can, can count on a, a,

16:28.265 --> 16:32.845
an overall quality of life that is, that is,

16:33.225 --> 16:35.205
fair and, comfortable

16:35.345 --> 16:37.605
and resourced and, and free.

16:37.785 --> 16:39.325
So, so I don't, I don't wanna make,

16:39.765 --> 16:41.045
I don't want anyone to think that.

16:41.085 --> 16:45.005
I think that having the right to privacy in India means that

16:45.685 --> 16:47.845
hunky dory India is in great shape.

16:48.085 --> 16:49.685
'cause I think that like, in like the United States,

16:49.695 --> 16:52.165
India has a lot of problems right now with left,

16:52.165 --> 16:56.125
right politics, religious, con religious debate

16:56.145 --> 16:58.005
and, and, and, and hatred, frankly.

16:58.545 --> 17:00.645
Uh, and I think there's a lot of pro.

17:00.785 --> 17:03.405
But anyway, I, I am, I am glad that we have

17:03.475 --> 17:05.245
that progress has been made, made there.

17:05.745 --> 17:09.365
Uh, more generally, I think that, that

17:10.025 --> 17:13.765
one is inspired, by the possibility

17:14.065 --> 17:15.805
of having an impact.

17:15.825 --> 17:19.205
And I think that many American philosophers now,

17:19.425 --> 17:23.805
who are in the public philosophy network are finding ways

17:23.905 --> 17:26.725
to connect with their communities to,

17:27.155 --> 17:29.605
improve the quality, not just the conversation or,

17:29.665 --> 17:33.445
or thought about, about whatever it is, the environment,

17:33.635 --> 17:37.445
animals, technology,

17:37.865 --> 17:42.125
but they're actually, improving the material

17:43.125 --> 17:44.605
situation of people on the ground.

17:45.065 --> 17:48.845
And so I am very proud to think of myself as

17:49.405 --> 17:53.685
a public philosopher whose work, has had some,

17:53.955 --> 17:58.005
influence, and some, I impact in my own country,

17:58.545 --> 18:01.045
but that also has managed to cross borders.

18:01.145 --> 18:03.405
And, I'm gonna be, by the way, I wanna mention

18:03.405 --> 18:05.805
that I'm going to be going to the uk,

18:06.385 --> 18:07.565
in just a few weeks

18:07.745 --> 18:10.525
as the heart fellow at University College Oxford.

18:11.145 --> 18:12.365
Uh, and while I'm there,

18:12.425 --> 18:15.605
I'm gonna give the HLA memorial heart, lecture.

18:16.505 --> 18:21.325
And my topic is going to be, unconditional love,

18:21.705 --> 18:23.765
anthem implications for the law.

18:24.345 --> 18:26.325
And so, I will be in

18:26.325 --> 18:28.565
that paper talking about the ways in which,

18:28.565 --> 18:32.645
philosophical and cultural concepts of love, have

18:33.245 --> 18:35.885
manifested themselves in several areas of law,

18:36.225 --> 18:38.845
not only in the US but also, abroad.

18:39.145 --> 18:41.325
And it's with great pleasure again, that I try

18:41.325 --> 18:44.045
to bring some, some degree of practical

18:44.225 --> 18:47.645
and grounded, insights into my, more theoretical,

18:47.645 --> 18:48.325
philosophical.

Privacy in the Digital Age: A Global Perspective

00:00:00 - As everyone knows, we are now living in a digital world where information is being rapidly collected, utilized, analyzed, and, it's improving our lives in many ways, but also, producing concerns about data protection and privacy. And so, most of my scholarship of late has been about the, interface between digital culture and, and the law, as it relates to privacy. Yeah. The, the situation in, in, in India was a great context for me, for thinking hard about, how the privacy of, of millions
00:00:34 - by a single governmental policy. I remember very vividly, I was, At home one day and I got an email from a colleague, at the Electronic Privacy Information Center in Washington saying, Anita, you've been cited by the Supreme Court of India in the opinion, in a leading case involving privacy and biometrics. And I was shocked because I've never been to India and I don't know, many Indian lawyers. And I was surprised that somehow my ideas had come to be a part of the conversation
00:01:07 - So, I began to, to look hard at this case. The case is called, Swanee versus, the unit of India. And that the case brought by a former judge Who was protesting the fact that the government had implemented a policy of requiring every Indian citizen to have a special ID card called an odd HAR card. And the odd HAR card was produced by taking, fingerprints and Irish scans and, and, phenotypical data combining them
00:01:38 - And this was a way so that if a person wanted to apply for any kind of public service or benefit, the government would know they were Indeed a citizen of India. So, that was the issue. Can this card though, be, required Without violating the rights of privacy of people in India? Well, the problem was, at the time, there was no, right to privacy recognized by the Indian Supreme Court. So what this case, Putta Suwanee did was it actually Raised the question, is There a right to privacy under the Indian Constitution?
00:02:11 - to privacy require either abandoning the odd heart project or putting in restrictions to make sure that the data that was collected was not used in ways that weren't authorized? What my work was cited for was the idea that privacy is a fundamental, or I would say foundational right? Meaning a right, which on an an ethical level, a moral level on a human rights level, ought to be embodied in the positive law of any, any nation.
00:02:43 - very, very important right. The Indian Supreme Court cited my work and the work of several others, American scholars, I might add. So that was the, that was the, that was the ground. Ironically, the Indian Supreme Court Adopted a perspective on privacy, which now the US Supreme Court has questioned, and some would say abandoned in a recent decision, called the Dobbs case, in which the Supreme Court, struck down the abortion right

Privacy in India vs. the United States

00:03:11 - So, in a way, you might say that right now, using the language of dignity and the Indian Constitution, Indians have more secure constitutional privacy than the United States citizens have. I've written a couple of books about privacy, and in fact, if I can be a little immodest, I was the first American philosopher, maybe the first philosopher in the world to write a, a, a book, a philosophical book about privacy. So that was Uneasy Access,
00:03:42 - Then I published other books about privacy. One called Why Privacy Isn't Everything. And then you mentioned Unpopular Privacy. So what these books do is, is, the first two chronicle the, the gender and privacy issue. Like, what is it like for women to experience or not experience privacy? What are the values at stake? How do we understand what privacy means? What the definition of privacy, for example? So in the first couple of books I'm exploring,
00:04:15 - other population groups, African Americans, people in general, in the second book, why privacy is, and everything in an account of accountability, because I think that one of the things which people of color are particularly concerned about, and I include myself and had obviously, is, the ways in which privacy values don't work for some people. They create a space of, of non visibility in which people of color women can be abused, discriminated against, et cetera. So we're skeptical about privacy, and we, we love the idea
00:04:46 - So the second book explores the, theories about, about accountability that are, that are, that are influenced by, by feminist scholarship. And then, in unpopular privacy, I do something entirely different, which is to say, you know, maybe privacy is such an important value that it shouldn't be treated like ice cream. You know, something that if you want it, you get, get, you say yes. If you don't want it, you say no. But rather, maybe privacy is so important that people should not have the choice
00:05:17 - And I explore the idea that there ought to be paternalistic laws that actually limit people's ability to wave or give up their privacy. And I say that, that, that just as we have laws against in self enslavement, we ought to have laws against, the abrogation of our privacy, because it turns out that privacy like slavery has a, has a, has consequences for freedom. And, and freedom has consequences for democracy. The court was remarkably interested in, in theory and philosophy.
00:05:49 - opinions like, you know, we, we, like India, have a, have a tradition of the judges articulating the reasons for their decisions, in and opinions. And They, the, the waning opinion was, I think over 200 patients long and included a lot of references to philosophy and theory. I think that that, that privacy rights and the constitution, it, it invites philosophical analysis because, because most world constitutions don't have an explicit right to privacy in them,

Philosophical Foundations of Privacy Rights

00:06:18 - to dignity or right to be treated with one's liberties, right? To have family, privacy correspondence, privacy, privacy of our papers, privacy of our, of our, of our, of our health decisions. And, and so, so one way to to, to elevate those conversations about privacy and to link different conversations about privacy together is to go up to a kind of a philosophical level. And the main philosophical theories of privacy are that privacy protects, our freedom
00:06:50 - and relate to private life, like marriage, family, childbearing, health and so forth. But also, there's a theory of privacy. We said that privacy is all about, not about so much about freedom or autonomy or liberty, but about, but about dignity, about being treated with respect, when it comes to matters affecting one's own body in person. And then there are many other theories too there. You know, there's a theory that privacy is all about protecting norms of data flow and norms of data, data, use.
00:07:21 - It's been going on now for more than 45 years about how do we define privacy. But lately, I've come to believe that, and I, I mentioned this by the way in the paper, that I write about the India case, that, that there's a politics to privacy discourse. that it's not just that we wanna define privacy, we wanna understand that if we are defining privacy, we're also taking part of a, in a conversation about what ought to be the way the world looks. So if you are, if you think that, privacy is too vague
00:07:56 - that means that you have no basis for, for example, abortion rights or the right to die or, gay rights, right? And, so, so we don't want a conversation about privacy definition to turn into an exercise about how can you limit the definition so narrowly that one can no longer claim that there's a right, a right to privacy that's effective to help, marginalized communities. So that's part of the conversation as well. So I was thrilled that in a country
00:08:24 - there would be this philosophically inspired right to privacy, which was based on the idea of dignity in their constitution, which is explicit in Indian constitution, by the way, the idea of dignity. And, and then, to my delight, after the Wanni case was decided, within a year, that decision had been applied to decriminalize same sex sex in India. And so the, the, the, the, the pride for me is that my, my scholarly ideas not only contributed to a basis of law
00:08:57 - but then it went on to be a part of the body of law that enables, people who are gay to be, to be free, from criminal prosecution in, one of the nation's largest democracy, one of the world's largest. We are, behind Europe, as you know, the Europe has the GDPR, great Britain has, has strong privacy laws that are, that are essentially the GDPR. And, and those laws give individuals a great deal of protection against big tech

Challenges in U.S. Privacy Law Enforcement

00:09:27 - private enterprise in general, where private rights may not be as, economically lucrative, if they're, if they're restricted. So anyway, then, so the, so Europe has privacy laws. We don't, we have a hodgepodge of privacy laws. Most of them are out of date. And efforts to get a national privacy law enacted have been very frustrating. And we've tried again and again and again, bills get introduced into Congress. Several bills have been introduced in the last couple
00:09:58 - creating data protection agency with AI protections. And not a single one has passed. president Biden was able to issue an executive order recently protecting, some AI concerns, but for the most part, despite, the work of scholars who are on board with privacy, civil society organizations, of which I am, have been a member, have been, have not, have been, you know, on board with privacy, academics and so forth, but we've not been able to, to push through congress a, a,
00:10:31 - So we don't have anything, similar to the GDPR or to, what they now have in, in India, based in the constitution, not the statutory nor constitutional. We're behind, we're behind many other important countries, Germany, France, Britain, India, and so forth, Canada. so I, I, but I keep, I keep pushing. So not only do I write as a scholar, but I also have been on the boards of several organizations that promote data protection. I was the board chair, chair board
00:11:03 - for a couple of recent years. And I've been, I'm currently serving on the board of something called the Future of Privacy Forum, which promotes conversations about privacy, that cross between the private sector and the public sector. so I'm, I'm involved in, in trying to get better privacy law in the United States and policy, through my, my, work in civil society organizations through my work as an academic and as a, as a person, as a, as a, as a citizen, as a parent, as a, as a, you know,
00:11:35 - I see how pri how important privacy rights are in everyday life. When you shop and go to the doctor, when you try to take your children to the doctor, you know, when you, sign up for, for schools, you are, you are giving data that then can be used by, by, a variety of, of, of, of, of entities. And I, on, on a personal level, I worry about, you know, what, what's happening to the data of myself and my children, and what will happen to that data, into the future. We do have an increase in regulation of data in the sense that over since the 1970s, we've enacted,
00:12:08 - And I'll just mention of two or three, we do have a health privacy law. Its nickname is hipaa. And, the HIPAA privacy rule does protect, people's, health information, when they go to the doctor, go to a hospital, and it protects it, you know, relatively well for 50, for 50 years, even after they die. So it's a pretty strong, you know, privacy, right? So hipaa, we have a law that we nicknamed ferpa, which is a family education and right to privacy Act, which protects student school records.

Challenges of American Privacy Law Complexity

00:12:42 - held records that might have our names in them, on, on the federal level. And we have laws protecting driver's information and genetic privacy. And, and I could go a a little bit further, communications, privacy, we have law, we call it ecpa, which protects us against, wiretapping and, and, and, accessing our stored data. But, but all that I sort of, it, we call it a, some people call it a crazy, well, it's opposed to a unified, law like you have in, you have in, in Europe and, and in the uk It's, it's a bunch
00:13:13 - require a bunch of different regulations, and, and have very, very different terms of like, when they come into effect, who they affect, how long they come into effect. So it's very difficult to learn American privacy law. 'cause it's not one thing. It's then on the state level, this is where the action is today, because we don't have a federal law, our states are beginning to pass their own data protection laws. And my critique of those laws is they tend to be very narrow. They tend to not take civil rights seriously.
00:13:44 - as opposed to being more balanced. Virginia has such a law, for example, California and a couple other states. So this we see on the state level, and some people are saying, Bravo, if you can't do it on the federal level, let's get it done on the state level. The problem with that is that then you have 50 different regimes. And once again, it's hard to know what what's the law? And, you know, Americans are not, are not people who, who just live in one state and then, you know, for their whole lives. I've lived in Georgia, Alabama,
00:14:20 - Connecticut. so, so what, what, so how do I learn what the law is? And I think on a philosophical level, it's, if there, if there's not some clear set of ideas, like fair information practice, there's something that links together all these, these state laws, what you get is the kind of chaos that drives lawyers crazy, because we don't, you know, to advise our clients, we have to, well, if you cross the line over here, the law changes in this way
00:14:47 - So it's very, very confusing and chaotic right now. And I might just add, because it does relate to this, not only is data protection law today in the US in chaos, but, privacy law in general, 'cause of the dobs suspicious in chaos, because now we have 50 different abortion laws. And so a young woman who goes to college in New York, but is from, Arizona and has a summer job in Texas, she, again, how does she know what her, what her abortion rights are?
00:15:19 - of in chaos right now, and I'm, as an academic, concerned that my work might be, helpful in this respect to maybe explain why the chaos is not desirable and get us more unified, federal, sensible laws founded in, in, in important philosophical principles. But I also realize that, that as a single person and single academic, the the chances that my work and my impact will actually be the key. You know, it's a ridiculous

Impact of Privacy Rights Amid Political Challenges

00:15:48 - But, but I think that lots of us together might, well, as we keep pushing and pushing and pushing, eventually have some kind of impact, but it's been very frustrating, in the last several years as we celebrate the, creation of a constitutional right to privacy in India. We also worry that, in, in general, India's political situation is such that, some people may not be able to enjoy the benefits of the law as well as others. So the, so having the, having the right law doesn't mean
00:16:21 - or that the political climate of a country is such that people can, can, can count on a, a, an overall quality of life that is, that is, fair and, comfortable and resourced and, and free. So, so I don't, I don't wanna make, I don't want anyone to think that. I think that having the right to privacy in India means that hunky dory India is in great shape. 'cause I think that like, in like the United States,
00:16:52 - right politics, religious, con religious debate and, and, and, and hatred, frankly. and I think there's a lot of pro. But anyway, I, I am, I am glad that we have that progress has been made, made there. more generally, I think that, that one is inspired, by the possibility of having an impact. And I think that many American philosophers now, who are in the public philosophy network are finding ways
00:17:27 - improve the quality, not just the conversation or, or thought about, about whatever it is, the environment, animals, technology, but they're actually, improving the material situation of people on the ground. And so I am very proud to think of myself as a public philosopher whose work, has had some,
00:17:58 - but that also has managed to cross borders. And, I'm gonna be, by the way, I wanna mention that I'm going to be going to the uk, in just a few weeks as the heart fellow at University College Oxford. and while I'm there, I'm gonna give the HLA memorial heart, lecture. And my topic is going to be, unconditional love, anthem implications for the law.
00:18:47 - that paper talking about the ways in which, philosophical and cultural concepts of love, have manifested themselves in several areas of law, not only in the US but also, abroad. And it's with great pleasure again, that I try to bring some, some degree of practical and grounded, insights into my, more theoretical, philosophical.

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