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David E. Pozen on "Privacy-Privacy Tradeoffs"

Benjamin Wittes
Monday, June 29, 2015, 2:22 PM

Readers who found engaging my recent paper with Jodie Liu, "The Privacy Paradox: The Privacy Benefits of Privacy Threats," will certainly want to check out a new draft paper by Columbia Law School professor David E. Pozen.

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Readers who found engaging my recent paper with Jodie Liu, "The Privacy Paradox: The Privacy Benefits of Privacy Threats," will certainly want to check out a new draft paper by Columbia Law School professor David E. Pozen. Entitled "Privacy Privacy Tradeoffs," the paper covers some similar thematic ground: the idea that while we often think of privacy goods as clashing with other values, they often clash, in fact, with other privacy goods. And Pozen attempts to apply this idea to the controversies over NSA surveillance. It's a very interesting argument, whose introduction reads:

Privacy clashes with important social values. We are told as much all the time. Commentators struggle to reconcile privacy and security, privacy and efficiency, privacy and technological innovation, and privacy and free speech, among other (real or imagined) antinomies. Privacy is constantly being juxtaposed with competing goods and interests, balanced against alternative needs and demands. Legal and policy debates about privacy revolve around these tradeoffs.

But privacy also clashes with itself. That is to say, in myriad social and regulatory contexts, enhancing or preserving privacy along a certain dimension may entail compromising privacy along another dimension. If they wish to be more analytically rigorous, theorists and decisionmakers must take such privacy-privacy tradeoffs into account. If they wish to advance the cause of privacy, civil libertarians must do the same.
Privacy-privacy tradeoffs come in a variety of flavors. Sometimes they are unexpected and unwanted. When EU citizens began exercising their right to be forgotten last year and flooded Google with “delete me” requests, the deleted links quickly reappeared—in more concentrated form—on a website devoted to documenting Internet censorship. Other times, privacy-privacy tradeoffs are consciously cultivated and promoted. The Transportation Security Administration’s PreCheck program invites travelers to “volunteer personal information in advance” if they wish “to leave on their shoes, belts and light outerwear and keep their laptops in their bags.” Enhanced governmental access to your data can be traded for reduced access to your body and belongings.

In many cases, privacy-privacy tradeoffs simply follow from scarce resources and opportunity costs. A tenant on a fixed budget who spends money soundproofing her walls will have less to spend on mending her window curtains or protecting her online identity. Alternatively, these tradeoffs may be caused by behavioral responses and dynamic feedback effects. Increasing airline-passenger privacy levels from X at Time 1 to a multiple of X at Time 2 may increase the odds of a terrorist attack, with the consequence that passengers’ privacy levels will be reduced to a fraction of X at Time 3. In still other cases, risk is redistributed across different aspects or bearers of privacy. By establishing a forensic DNA database, law enforcement officials may impair the privacy of everyone whose DNA is included but protect the privacy of a smaller group who will not be needlessly investigated for the crimes of others. By stripping its analysts of “any privacy or anonymity when they look at [collected] data,” an intelligence agency may deter them from exceeding their investigative mandates and thereby secure a measure of privacy for the rest of society—or at least for the analysts’ love interests.

While the idea of privacy-privacy tradeoffs appears to be new to the legal literature, the basic logic behind the idea is not. Criminal law scholars have called attention to the ways in which police practices advantage certain privacy interests at the expense of others. And theorists in law and other disciplines have begun to explore “security-security tradeoffs,” “liberty-liberty tradeoffs,” “health-health tradeoffs,” “democracy-democracy tradeoffs,” and other such internal oppositions. Like security, liberty, health, and democracy, privacy is a complex normative value embedded in a range of complex social practices. The possibilities for conflict within such a matrix are vast. Moreover, privacy-privacy tradeoffs are not only widespread in modern society but also proliferating, as new technologies and new conceptions of privacy continually generate new ways in which privacy interests may be violated or vindicated.

This Essay introduces the phenomenon of privacy-privacy tradeoffs, along with some conceptual tools to help negotiate them. In keeping with the theme of this symposium, the Essay focuses on governmental threats to privacy and in particular on national security surveillance. It also begins to sketch links between this subject and questions of institutional design within the regulatory state. An appreciation of privacy-privacy tradeoffs, the Essay tries to show, can clarify and enrich debates over the National Security Agency’s (NSA) activities as well as privacy policy generally. Reconceptualizing these debates as pitting privacy against privacy enables more productive consequentialist and critical analysis, and might even help disentrench some of the political and ideological divisions that have hardened around privacy versus security, privacy versus technology, and other conventional frameworks.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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