NEW HAVEN -- Privacy has a price. For Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, it comes out to $2,400 a year.
Kozinski, who was appointed by Ronald Reagan, is well known in the legal profession for his often humor-filled defenses of civil liberties. He's had his own run-ins with the erosion of online privacy in the past: an 11-judge panel rebuked him in 2009 for storing sexually explicit material on his private website in a way that left it accessible to the public.
Speaking at a Yale University conference on Sunday, he argued that it is increasingly difficult to protect against government intrusions on privacy in a world where private companies have so much access to the intimate details of our lives, even if we never gave them permission.
It is a paradox that will only come into sharper focus in the coming months, as Congress considers whether to reform the Electronic Communications Privacy Act, and civil libertarians grapple with the fallout from a Supreme Court decision striking down a challenge to the NSA's warrantless wiretapping program.
"The world we live in now is one where we constantly disclose information to third parties, often unwillingly," Kozinski said.
Our cellphones track our every movement. Our credit cards or web browsers turn us into consumers to be marketed. An ordinary TV advertisement in one house might be replaced by a Viagra pitch next door -- and, Kozinski said, "chances are very good you got the Viagra commercial for a reason."
Because of Supreme Court decisions reaching back to the 1970s, the courts have long held that any information we hand over to third parties -- the same information that helps Target find out a teenage girl is pregnant before her father does -- is not covered by the Fourth Amendment's protections against unreasonable searches and seizures. Congress can go above and beyond the Constitution's privacy protections to place limits on police, or on private companies, but so far it has been slow to act.
Kozinski thinks legislators won't take any serious steps soon, if only because "people are basically cheap."
"The reason you pay as little as you do for credit cards is that they sell this information to Experian," he explained. "Google is free because they get ad data just targeted to you based on your searches."
"We've gotten used to getting this stuff on the cheap by selling our privacy. It's a bargain we didn't start out making, it was made for us, but we've gotten comfortable with it," he said.
Kozinski is one of those who has reached some level of comfort, despite his lingering concerns. He mused that if he had to pick a price to protect his privacy -- and actually pay for all those proliferating "free" services -- he would probably reach a maximum "price point" of $200 a month, as long as it included his entire family.
That's not an option many companies actually offer. Social network App.net is trying to offer a paid alternative to Facebook and Twitter that turns consumers into masters of their own information. But many users balked at its initial price of $50 per year, and so far it hasn't taken off as a major social competitor. Kozinski argued that the private erosions of our privacy are contributing to a general sense that our data is not our own.
"So long as we are willing to sell our privacy," Kozinski said, "I think that it's going to be very hard to complain that the government gets the same stuff that we're willing to sell so cheaply to third parties."
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