Synthesis and Satisfaction

Key Question Being Explored in This Insight:

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.

View the page of: Anita L. Allen

Institution: University of Pennsylvania

Explore more insights in:

Law Private Law Professional

Media Literacy Toolkit

Faculti's Media Literacy Toolkit helps viewers critically engage with academic insights by analyzing the research context, identifying perspectives, and encouraging thoughtful evaluation.

Critical Questions to Consider ▼

What assumptions does the research make?
Are there alternative perspectives not explored?
What are the limitations of the research method?

Bias and Perspective Awareness ▼

This research comes from University of Pennsylvania . Reflect on how the institution's academic focus and research partnerships may shape the questions being explored.

Further Reading ▼

Read the Study

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

Log-in or Sign-up to Faculti
Currently viewing this subject insight as a guest. You have insight(s) remaining for this month. Login to view 8000+ figures on the platform.

Generating Workspace...

Export as PDF

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The speaker expresses concern about the fragmented and outdated nature of privacy laws in the U.S., compared to stronger protections found in Europe and India.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.

Language:

Export as PDF

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

00:00.145 --> 00:03.205
As everyone knows, we are now living in a digital world

00:03.495 --> 00:08.165
where information is being rapidly collected, utilized,

00:08.725 --> 00:11.725
analyzed, and, it's improving our lives in many ways,

00:11.745 --> 00:13.925
but also, producing concerns

00:13.925 --> 00:15.085
about data protection and privacy.

00:15.545 --> 00:18.565
And so, most of my scholarship of late has been about the,

00:18.705 --> 00:21.805
interface between digital culture and,

00:22.065 --> 00:24.405
and the law, as it relates to privacy.

00:24.875 --> 00:26.765
Yeah. The, the situation in, in,

00:26.765 --> 00:28.645
in India was a great context for me,

00:28.645 --> 00:32.685
for thinking hard about, how the privacy of, of millions

00:32.685 --> 00:34.045
and millions of people can be affected

00:34.045 --> 00:35.325
by a single governmental policy.

00:35.925 --> 00:37.525
I remember very vividly, I was,

00:37.745 --> 00:40.645
At home one day and I got an email from a colleague,

00:40.645 --> 00:43.245
at the Electronic Privacy Information Center in Washington

00:43.245 --> 00:46.245
saying, Anita, you've been cited by the Supreme Court

00:46.245 --> 00:48.885
of India in the opinion,

00:49.385 --> 00:52.605
in a leading case involving privacy and biometrics.

00:52.605 --> 00:55.085
And I was shocked because I've never been to India

00:56.145 --> 00:58.805
and I don't know, many Indian lawyers.

00:59.265 --> 01:02.605
And I was surprised that somehow my ideas had come

01:02.605 --> 01:04.605
to be a part of the conversation

01:04.615 --> 01:07.325
About whether or not there's a right to privacy in India.

01:07.905 --> 01:09.205
So, I began to,

01:09.205 --> 01:11.085
to look hard at this case. The case is called,

01:11.105 --> 01:14.005
Uh, Swanee versus, the unit of India.

01:14.385 --> 01:16.925
And that the case brought by a former judge

01:17.225 --> 01:19.605
Who was protesting the fact

01:19.635 --> 01:21.845
that the government had implemented a policy

01:22.185 --> 01:24.485
of requiring every Indian citizen

01:25.225 --> 01:27.925
to have a special ID card called an odd HAR card.

01:28.185 --> 01:31.005
And the odd HAR card was produced by taking,

01:31.125 --> 01:33.565
fingerprints and Irish scans and,

01:33.745 --> 01:36.325
and, phenotypical data combining them

01:36.325 --> 01:37.925
to create a unique identifier.

01:38.025 --> 01:40.085
And this was a way so that if a person wanted to apply

01:40.085 --> 01:41.165
for any kind of public service

01:41.225 --> 01:43.245
or benefit, the government would know they were

01:43.265 --> 01:45.125
Indeed a citizen of India.

01:45.905 --> 01:48.365
So, that was the issue. Can this card though,

01:48.705 --> 01:50.925
Uh, be, Uh, required

01:51.075 --> 01:52.605
Without violating the rights

01:52.605 --> 01:54.085
of privacy of people in India?

01:54.235 --> 01:58.365
Well, the problem was, at the time, there was no, right

01:58.365 --> 02:00.925
to privacy recognized by the Indian Supreme Court.

02:01.145 --> 02:04.045
So what this case, Putta Suwanee did was it actually

02:04.045 --> 02:05.365
Raised the question, is

02:05.365 --> 02:08.565
There a right to privacy under the Indian Constitution?

02:08.985 --> 02:11.285
And if there is, would that right

02:11.285 --> 02:15.125
to privacy require either abandoning the odd heart project

02:15.425 --> 02:18.685
or putting in restrictions to make sure that the data

02:18.685 --> 02:20.565
that was collected was not used in

02:20.565 --> 02:21.685
ways that weren't authorized?

02:21.875 --> 02:24.125
What my work was cited for was the idea

02:24.125 --> 02:26.285
that privacy is a fundamental,

02:26.745 --> 02:28.725
or I would say foundational right?

02:28.995 --> 02:31.605
Meaning a right, which on an an ethical level,

02:31.845 --> 02:34.245
a moral level on a human rights level, ought

02:34.245 --> 02:38.805
to be embodied in the positive law of any, any nation.

02:39.345 --> 02:43.125
And so, to make the case that that privacy is a very,

02:43.125 --> 02:44.325
very, very important right.

02:44.465 --> 02:46.645
The Indian Supreme Court cited my work

02:46.745 --> 02:47.965
and the work of several others,

02:48.445 --> 02:49.565
American scholars, I might add.

02:50.145 --> 02:51.285
So that was the, that was the,

02:51.285 --> 02:53.285
that was the ground. Ironically,

02:53.665 --> 02:55.325
Um, the Indian Supreme Court

02:55.325 --> 02:57.165
Adopted a perspective on privacy,

02:57.895 --> 03:01.265
which now the US Supreme Court has questioned,

03:01.485 --> 03:04.665
and some would say abandoned in a recent decision,

03:04.665 --> 03:08.105
called the Dobbs case, in which the Supreme Court,

03:08.105 --> 03:09.545
struck down the abortion right

03:09.545 --> 03:10.745
to privacy in the United States.

03:11.125 --> 03:13.105
So, in a way, you might say that right now,

03:13.435 --> 03:14.985
using the language of dignity

03:15.085 --> 03:19.745
and the Indian Constitution, Indians have more secure

03:20.665 --> 03:24.185
constitutional privacy than the United States citizens have.

03:24.695 --> 03:27.025
I've written a couple of books about privacy,

03:27.085 --> 03:29.305
and in fact, if I can be a little immodest,

03:30.265 --> 03:32.225
I was the first American philosopher,

03:32.475 --> 03:35.345
maybe the first philosopher in the world to write a, a,

03:35.625 --> 03:38.865
a book, a philosophical book about privacy.

03:39.045 --> 03:40.345
So that was Uneasy Access,

03:40.345 --> 03:42.825
which I published way back in 1988.

03:42.825 --> 03:44.465
Then I published other books about privacy.

03:44.965 --> 03:46.745
One called Why Privacy Isn't Everything.

03:46.765 --> 03:48.505
And then you mentioned Unpopular Privacy.

03:48.685 --> 03:53.065
So what these books do is, is, the first two

03:53.855 --> 03:58.585
chronicle the, the gender and privacy issue.

03:58.735 --> 04:02.585
Like, what is it like for women to experience

04:02.645 --> 04:04.105
or not experience privacy?

04:04.295 --> 04:05.625
What are the values at stake?

04:05.885 --> 04:07.545
How do we understand what privacy means?

04:07.545 --> 04:09.945
What the definition of privacy, for example?

04:10.285 --> 04:12.665
So in the first couple of books I'm exploring,

04:12.665 --> 04:15.545
what privacy means for women, I expand to other,

04:15.545 --> 04:17.865
other population groups, African Americans,

04:17.865 --> 04:20.705
people in general, in the second book, why privacy is,

04:20.705 --> 04:23.145
and everything in an account of accountability,

04:23.145 --> 04:25.105
because I think that one of the things which people

04:25.125 --> 04:26.945
of color are particularly concerned about,

04:27.125 --> 04:28.145
and I include myself

04:28.145 --> 04:30.025
and had obviously, is,

04:30.025 --> 04:33.385
the ways in which privacy values don't work for some people.

04:33.855 --> 04:37.305
They create a space of, of non visibility in which people

04:37.305 --> 04:39.505
of color women can be abused,

04:39.505 --> 04:41.105
discriminated against, et cetera.

04:41.105 --> 04:42.505
So we're skeptical about privacy,

04:42.645 --> 04:43.945
and we, we love the idea

04:43.945 --> 04:46.465
that accountability is a counterweight to privacy.

04:46.645 --> 04:49.505
So the second book explores the, theories about,

04:50.115 --> 04:52.505
about accountability that are, that are,

04:52.535 --> 04:55.105
that are influenced by, by feminist scholarship.

04:55.685 --> 04:58.145
And then, in unpopular privacy,

04:58.385 --> 05:01.625
I do something entirely different, which is to say,

05:01.965 --> 05:04.785
you know, maybe privacy is such an important value

05:04.785 --> 05:06.265
that it shouldn't be treated like ice cream.

05:06.365 --> 05:08.905
You know, something that if you want it, you get,

05:08.925 --> 05:09.985
get, you say yes.

05:10.005 --> 05:11.305
If you don't want it, you say no.

05:11.565 --> 05:13.545
But rather, maybe privacy is so important

05:13.545 --> 05:15.185
that people should not have the choice

05:15.605 --> 05:16.705
to abandon their privacy.

05:17.125 --> 05:18.825
And I explore the idea that there ought

05:18.825 --> 05:20.505
to be paternalistic laws

05:20.815 --> 05:23.905
that actually limit people's ability to wave

05:24.045 --> 05:25.545
or give up their privacy.

05:25.725 --> 05:27.225
And I say that, that, that just

05:27.225 --> 05:30.505
as we have laws against in self enslavement, we ought

05:30.505 --> 05:33.105
to have laws against, the abrogation of our privacy,

05:33.105 --> 05:37.105
because it turns out that privacy like slavery has a, has a,

05:37.205 --> 05:38.505
has consequences for freedom.

05:39.005 --> 05:41.585
And, and freedom has consequences for democracy.

05:42.125 --> 05:44.345
The court was remarkably interested in,

05:44.565 --> 05:45.985
in theory and philosophy.

05:46.065 --> 05:48.985
I mean, I, I don't usually see an American Supreme Court

05:49.065 --> 05:51.225
opinions like, you know, we, we, like India, have a,

05:51.225 --> 05:54.505
have a tradition of the judges articulating the reasons

05:54.885 --> 05:56.825
for their decisions, in and opinions. And

05:56.825 --> 05:58.805
They, the, the waning opinion was,

05:59.125 --> 06:01.045
I think over 200 patients long

06:01.305 --> 06:04.205
and included a lot of references to philosophy and theory.

06:04.885 --> 06:07.325
I think that that, that privacy rights

06:07.325 --> 06:10.765
and the constitution, it, it invites philosophical analysis

06:10.765 --> 06:14.005
because, because most world constitutions don't have an

06:14.245 --> 06:16.045
explicit right to privacy in them,

06:16.425 --> 06:18.885
but they have language like, that there's a right

06:18.885 --> 06:20.565
to dignity or right to be treated

06:20.755 --> 06:22.125
with one's liberties, right?

06:22.125 --> 06:25.605
To have family, privacy correspondence, privacy,

06:25.915 --> 06:28.565
privacy of our papers, privacy of our, of our, of our,

06:28.565 --> 06:29.725
of our health decisions.

06:30.185 --> 06:33.125
And, and so, so one way to to,

06:33.305 --> 06:35.885
to elevate those conversations about privacy

06:36.065 --> 06:38.485
and to link different conversations about privacy

06:39.005 --> 06:41.845
together is to go up to a kind of a philosophical level.

06:41.985 --> 06:45.445
And the main philosophical theories of privacy are

06:45.445 --> 06:47.765
that privacy protects, our freedom

06:47.825 --> 06:50.445
and our liberty, in general, those that affect

06:50.445 --> 06:52.805
and relate to private life, like marriage, family,

06:52.805 --> 06:54.205
childbearing, health and so forth.

06:54.705 --> 06:56.005
But also, there's a theory of privacy.

06:56.105 --> 06:58.405
We said that privacy is all about, not about

06:58.405 --> 07:01.485
so much about freedom or autonomy or liberty, but about,

07:01.625 --> 07:04.925
but about dignity, about being treated with respect,

07:04.925 --> 07:07.725
when it comes to matters affecting one's own body in person.

07:08.465 --> 07:10.005
And then there are many other theories too there.

07:10.065 --> 07:12.125
You know, there's a theory that privacy is all about

07:12.215 --> 07:14.685
protecting norms of data flow

07:14.825 --> 07:17.885
and norms of data, data, use.

07:18.505 --> 07:21.605
So, so, I've been part of a, of a conversation.

07:21.605 --> 07:24.645
It's been going on now for more than 45 years about

07:24.665 --> 07:26.325
how do we define privacy.

07:26.785 --> 07:29.925
But lately, I've come to believe that,

07:30.145 --> 07:32.485
and I, I mentioned this by the way in the paper,

07:32.485 --> 07:34.325
that I write about the India case, that,

07:34.325 --> 07:36.605
that there's a politics to privacy discourse.

07:37.105 --> 07:39.725
Um, that it's not just that we wanna define privacy,

07:39.865 --> 07:43.125
we wanna understand that if we are defining privacy,

07:43.255 --> 07:45.645
we're also taking part of a, in a conversation about

07:45.795 --> 07:48.365
what ought to be the way the world looks.

07:48.465 --> 07:51.805
So if you are, if you think that, privacy is too vague

07:51.905 --> 07:56.285
and too, too, obscure for the law, then

07:56.675 --> 07:58.805
that means that you have no basis for, for example,

07:59.365 --> 08:01.405
abortion rights or the right to die

08:01.585 --> 08:03.605
or, gay rights, right?

08:03.905 --> 08:07.325
And, so, so we don't want a conversation about privacy

08:07.455 --> 08:10.285
definition to turn into an exercise about

08:10.545 --> 08:12.765
how can you limit the definition so narrowly

08:12.765 --> 08:15.645
that one can no longer claim that there's a right, a right

08:15.645 --> 08:18.005
to privacy that's effective to help,

08:18.005 --> 08:19.205
marginalized communities.

08:19.505 --> 08:20.765
So that's part of the conversation as well.

08:20.765 --> 08:21.925
So I was thrilled that in a country

08:21.945 --> 08:24.845
of brown people like India, that,

08:24.845 --> 08:27.885
there would be this philosophically inspired right

08:27.885 --> 08:29.845
to privacy, which was based on the idea

08:29.865 --> 08:31.485
of dignity in their constitution,

08:31.485 --> 08:32.685
which is explicit in Indian

08:32.925 --> 08:34.005
constitution, by the way, the idea of dignity.

08:34.705 --> 08:36.765
And, and then, to my delight,

08:37.055 --> 08:40.565
after the Wanni case was decided, within a year,

08:40.915 --> 08:44.645
that decision had been applied to decriminalize

08:45.275 --> 08:46.765
same sex sex in India.

08:47.265 --> 08:50.485
And so the, the, the, the, the pride for me is that my,

08:50.625 --> 08:54.565
my scholarly ideas not only contributed to a basis of law

08:54.565 --> 08:57.085
for critiquing a biometric identifier,

08:57.385 --> 08:59.925
but then it went on to be a part of the body of law

09:00.195 --> 09:04.045
that enables, people who are gay to be, to be free,

09:04.225 --> 09:07.045
from criminal prosecution in, one

09:07.045 --> 09:07.765
of the nation's largest

09:07.765 --> 09:09.125
democracy, one of the world's largest.

09:09.625 --> 09:12.685
We are, behind Europe, as you know,

09:12.685 --> 09:15.965
the Europe has the GDPR, great Britain has,

09:16.025 --> 09:17.725
has strong privacy laws that are,

09:17.725 --> 09:19.205
that are essentially the GDPR.

09:19.705 --> 09:22.925
And, and those laws give individuals a great deal

09:22.945 --> 09:24.685
of protection against big tech

09:25.065 --> 09:27.325
and against, against,

09:27.325 --> 09:28.645
private enterprise in general,

09:28.645 --> 09:31.245
where private rights may not be as,

09:31.725 --> 09:33.645
economically lucrative,

09:33.985 --> 09:35.285
if they're, if they're restricted.

09:35.465 --> 09:38.445
So anyway, then, so the, so Europe has privacy laws.

09:39.185 --> 09:42.605
We don't, we have a hodgepodge of privacy laws.

09:42.835 --> 09:44.085
Most of them are out of date.

09:44.345 --> 09:47.885
And efforts to get a national privacy law enacted have

09:47.885 --> 09:49.045
been very frustrating.

09:49.065 --> 09:50.885
And we've tried again and again

09:50.945 --> 09:53.245
and again, bills get introduced into Congress.

09:53.955 --> 09:55.885
Several bills have been introduced in the last couple

09:55.885 --> 09:58.005
of years, having to do with, with data protection,

09:58.485 --> 10:01.445
creating data protection agency with AI protections.

10:01.625 --> 10:04.525
And not a single one has passed.

10:04.985 --> 10:06.445
Uh, president Biden was able

10:06.445 --> 10:09.685
to issue an executive order recently protecting,

10:09.685 --> 10:11.085
some AI concerns,

10:11.105 --> 10:15.245
but for the most part, despite, the work of scholars

10:15.425 --> 10:17.565
who are on board with privacy,

10:18.255 --> 10:20.525
civil society organizations, of which I am,

10:20.525 --> 10:22.605
have been a member, have been, have not, have been,

10:22.625 --> 10:25.005
you know, on board with privacy, academics and so forth,

10:25.145 --> 10:28.485
but we've not been able to, to push through congress a, a,

10:28.605 --> 10:30.685
a national data protection law.

10:31.305 --> 10:34.685
So we don't have anything, similar to the GDPR

10:35.265 --> 10:37.445
or to, what they now have in, in India,

10:37.775 --> 10:38.885
based in the constitution,

10:39.025 --> 10:40.645
not the statutory nor constitutional.

10:40.855 --> 10:43.605
We're behind, we're behind many other important countries,

10:43.605 --> 10:47.125
Germany, France, Britain, India, and so forth, Canada.

10:47.705 --> 10:50.845
Um, so I, I, but I keep, I keep pushing.

10:50.985 --> 10:53.005
So not only do I write as a scholar,

10:53.465 --> 10:56.565
but I also have been on the boards of several organizations

10:56.565 --> 10:58.005
that promote data protection.

10:58.265 --> 11:00.765
Um, I was the board chair, chair board

11:00.785 --> 11:03.085
for the Electronic Privacy Information Center in Washington

11:03.265 --> 11:05.245
for a couple of recent years.

11:05.665 --> 11:07.885
And I've been, I'm currently serving on the board

11:07.885 --> 11:09.685
of something called the Future of Privacy Forum,

11:09.695 --> 11:13.285
which promotes conversations about privacy, that cross

11:13.285 --> 11:15.525
between the private sector and the public sector.

11:15.985 --> 11:20.245
Um, so I'm, I'm involved in, in trying to get better privacy

11:20.945 --> 11:22.205
law in the United States

11:22.345 --> 11:24.765
and policy, through my, my,

11:24.765 --> 11:27.325
work in civil society organizations through my work

11:27.325 --> 11:30.485
as an academic and as a, as a person, as a, as a,

11:30.485 --> 11:33.245
as a citizen, as a parent, as a, as a, you know,

11:33.285 --> 11:35.125
a mother, a wife, et cetera.

11:35.485 --> 11:37.125
I see how pri how important privacy

11:37.145 --> 11:38.245
rights are in everyday life.

11:38.245 --> 11:40.805
When you shop and go to the doctor, when you try

11:40.805 --> 11:43.685
to take your children to the doctor, you know, when you,

11:43.955 --> 11:47.645
sign up for, for schools, you are, you are giving data

11:47.645 --> 11:51.005
that then can be used by, by, a variety of, of, of,

11:51.065 --> 11:52.285
of, of entities.

11:52.545 --> 11:55.125
And I, on, on a personal level, I worry about, you know,

11:55.125 --> 11:56.965
what, what's happening to the data of myself

11:56.965 --> 11:58.645
and my children, and what will happen to

11:58.645 --> 11:59.885
that data, into the future.

12:00.185 --> 12:02.965
We do have an increase in regulation of data in the sense

12:02.965 --> 12:06.165
that over since the 1970s, we've enacted,

12:06.165 --> 12:08.525
about 12 major privacy laws.

12:08.665 --> 12:09.845
And I'll just mention of two

12:09.845 --> 12:13.045
or three, we do have a health privacy law.

12:13.225 --> 12:14.245
Its nickname is hipaa.

12:14.545 --> 12:17.605
And, the HIPAA privacy rule does protect, people's,

12:17.605 --> 12:20.965
health information, when they go to the doctor, go

12:20.965 --> 12:23.485
to a hospital, and it protects it, you know,

12:23.775 --> 12:27.645
relatively well for 50, for 50 years, even after they die.

12:27.645 --> 12:29.765
So it's a pretty strong, you know, privacy, right?

12:30.065 --> 12:32.805
So hipaa, we have a law that we nicknamed ferpa,

12:32.895 --> 12:34.445
which is a family education

12:34.445 --> 12:35.965
and right to privacy Act, which protects

12:36.075 --> 12:37.245
student school records.

12:38.805 --> 12:42.145
We have, a privacy act which protects the government

12:42.455 --> 12:45.345
held records that might have our names in them,

12:45.965 --> 12:47.025
on, on the federal level.

12:47.165 --> 12:49.145
And we have laws protecting driver's

12:49.145 --> 12:50.745
information and genetic privacy.

12:50.965 --> 12:52.985
And, and I could go a a little bit further,

12:53.265 --> 12:55.305
communications, privacy, we have law, we call it ecpa,

12:55.305 --> 12:58.305
which protects us against, wiretapping and, and,

12:58.365 --> 13:00.345
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.

Faculti AI can make mistakes

Research

Policy

Analysis

Data

Originals

Explainers

Podcasts

Faculti

New on Faculti

Idea Explorer

Definition

News Context

Critical Questions and Answers

Research Summaries

Synthesis and Satisfaction

Media Literacy Toolkit

Critical Questions to Consider ▼

Bias and Perspective Awareness ▼

Further Reading ▼