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Is Privacy Dead?

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How much privacy do you have online or on your handheld? The answer is "not as much as you think you have." As you read this article, for example, the fact that you have landed on this very post has been recorded. Your interest in the right to privacy has been logged and stored merely by virtue of your accessing this article online. You might not be particularly worried about that information being public, but consider what else you have revealed to the world by virtue of your digital presence. Are you planning a trip? A wedding? Have you been searching your medical symptoms on WebMD, or Google stalking your high school crush? Did all of your friends wish you a Happy Birthday on your Facebook page? If so, your financial status, religious beliefs, medical history, birth date and hometown have all been exposed, recorded and compiled into a virtual database that functions as your digital alter ego, a sort of online avatar. That critical mass of information may be accessible to the government or to anyone else who asks (or pays) for it.

For most of us, the Internet is part of everyday life, both business and personal. We wake up and check our email, read our news online, communicate important events to friends and family using social networks, and make plans using email or evite. When we get to work, we may access documents on the cloud, use email to communicate interoffice, or upload our appointments to online calendars. There is a perception that these activities are private, that somehow our personal information is lost in the sheer volume of transactions that take place online. We feel anonymous by virtue of the fact that each of us is just one speck in the vast digital universe. Despite some misgivings, consumers do have some expectation of trust and confidence when searching, buying and socializing online. Because all of this information is transmitted and stored as digital code, it appears that such information cannot be seen by others. What we forget is that all data can be aggregated into human readable form -- instantly.

In addition to our perceptions of anonymity, there is a growing and palpable change in how we view our own privacy. From reality television to social networking, we have embraced exhibitionism with a new found fervor. An entire generation of children is now growing up on YouTube, Facebook and Tumblr. From the Facebook announcement that the parents are expecting to the Tumblr account of the first five years, we are now chronicling our lives (and our children's) in a version of The Truman Show. In our desire to share, we have become less and less concerned about keeping our lives private.

In 2012, we willingly share vast amounts of previously closely guarded personal information with the world. Cell phones track our location, Google tracks our search terms and creates and aggregates digital personal profiles based on the vast array of information it is able to collect from our online queries, and we all track ourselves and our friends thanks to a variety of social networks such as FourSquare, Twitter, and Facebook.

Almost quaint by what is happening now, Netflix awarded $1 million to the statisticians and computer scientists who won a contest to analyze the rental history of 500,000 subscribers and improve the accuracy of Netflix's recommendation software by at least 10 percent. The winners achieved greater accuracy by analyzing distinct patterns of rating and renting movies, creating a digital profile of each renter that allowed them to identify the renter's personal interests and preferences. Increasingly, researchers are finding that individuals are identifiable by the unique data set that can be gathered from a variety of online sources, even if they have not revealed any personal information directly.

That is not to say, however, that we have given up wholesale on the ideas of privacy. Rather, we are changing our relationship to it. Remember, Facebook's initial appeal was (and is) that "only your friends" get access to your personal information. (Of course, Facebook's employees have access to some of that information -- and a host of advertisers.) Google has recently made a big push towards calming user fears (and Federal Trade Commission action). Google recently enabled a pop-up window at the search bar that states: "We're changing our privacy policy and terms. This stuff matters." It does.

While we have become more tolerant to sharing our personal information with the world, we are not ready to abandon our privacy altogether. Nor should we. Our privacy rights are an inherent part of our conceptions of basic Constitutional freedoms. Interestingly, the Electronic Frontier Foundation, the champion of an open, unregulated, and free internet when it comes to intellectual property protection, regularly calls for the protection of user privacy. Moreover, as recent Federal Trade Commission actions and class action lawsuits have shown there are numerous state and federal laws that protect user privacy rights. Even in this new exhibitionist environment, anyone doing business utilizing user or customer information should make sure to implement fair and transparent privacy policies.

Of course, an all-out ban on the collection of data undermines public policy that calls for innovation and openness. And, it would impact the sharing features of the mobile and online experiences that we have come to treasure. It would also reduce the profitability of online search engines and social networks. Social networking has become commerce in action. Facebook's business plan, as explained in its recent IPO filings, shows vividly that the more social networks or search engines can target the experience to the individual user, the greater the advertising revenue -- and the user experience. Privacy is a good thing -- and so is the aggregation and exploitation of user information.

So, what's next? We can expect continued expansion of our desire for personal exhibitionism fueled by the wonder, ease and convenience of mobile platforms, search engines, and social networks. We will also likely see a developing currency in applications designed to protect our privacy. The innovators will exploit the need for protecting our private space by creating tools and technology that will serve that end. At the same time, online businesses will embrace privacy protection as a means to attract users. For example, Microsoft has rolled out a promotion of its Bing search engine that highlights Bing's privacy protections as superior to Google's. In this way, online businesses will increasingly trumpet security and privacy protection as a priority -- and as a promotional asset.

We will keep sharing. And some smart companies will see the opportunity not only in aggregating and exploiting user information -- but in protecting user privacy too.

Is privacy dead? No. But we are changing how we feel about it.

Miles J. Feldman is the co-chair of the Litigation and Intellectual Property Departments at the Los Angeles based law firm of Raines Feldman LLP; he is the co-author of "Invasion of Privacy, Stalking and Harassment," Entertainment Litigation (Oxford University Press 2010) and "Towards Clearer Standard of Protectable Information," Ethics in the Workplace (McGraw Hill 1994).

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