Can we Waive our Privacy Rights?

Robert Howell
Mar 14 · 4 min read

Why We Shouldn’t Be Allowed to Waive our Right to Private Information

Photo from Burst, via Pexels

There is little doubt that privacy clauses and terms of service agreements don’t support the moral burden they are meant to carry. All too often they are designed to provide political cover rather than to generate informed consent. Not only does no one read them, but even if someone did and had the attention span and intelligence to follow them, it’s doubtful that they would find all the policies hidden in documents several clicks deep. Interesting fact: If the average American actually read all the policies they encountered, they would lose 76 full workdays in the process. The cost to productivity if all Americans were so conscientious would approach $1 trillion.

There is no arguing it, really: clicking on an AGREE button no more means that you agree with the content of a terms of service agreement than politely nodding your head during a mumbled conversation in a noisy bar means you are agreeing with the opinion you aren’t really hearing.

This is a big problem with the way we are doing things, but there is another, more fundamental issue that few have recognized: our privacy rights aren’t ours to waive.

That sounds paradoxical, but there are other rights we intuitively can’t waive — I cannot waive my right to self-determination by selling myself into bondage, for example, and I can’t waive my right to my body by selling myself to a cannibal for Thanksgiving Dinner. It’s not plausible, though, that privacy violations inflict such extreme harms, so those probably aren’t the best places to look for analogues.

A closer analogy to privacy rights is voting rights. I cannot waive my right to vote. I can choose not to exercise it, but I cannot waive it. I cannot exchange my right to vote for internet access or for a cushy job. I certainly can’t transfer my right to you, no matter how much you want to pay me. It’s my right, but that doesn’t mean I can give it up. That’s because my right to vote doesn’t only protect me — it protects my fellow citizens and the institution of democracy we collectively cherish.

If I have the right to sell my vote, it endangers the entire democratic franchise. It is likely to make your vote less valuable in comparison to someone else’s — plug in your favorite malevolent billionaire here for a scenario in which electoral outcomes are determined by the mass purchase of voting rights. We cannot waive our right to vote because that right doesn’t primarily prevent a harm to us as individuals; it prevents a harm to an institution that undergirds the rights of others.

I suggest privacy rights are like voting rights in this respect. While we can suffer individual harm if someone knows our political preferences or gains access to the subtle triggers that sway us for or against a product or a candidate, the more important harm comes with the threat to the valuable institutions we collectively comprise.

If I have the ability to waive my access to privacy rights so does everyone else. If we all waive those rights we enable the collection of data that enables significant control over the electorate as a whole. Given enough information about the thoughts and behaviors of voters, propaganda and advertising can be extremely effective in swaying enough attitudes to change the outcome of an election. Though votes aren’t being bought, the result is similar: each individual vote is now outweighed by the statistically certain outcome of a data-informed campaign of voter manipulation.

If this is right, we’ve largely been looking in the wrong direction both for the harms of privacy rights violations and for the harms involved in our wanton disregard of those rights. In an age where data-analytics can discern surprising connections between different elements of human personality and behavior, our data is not our own. By giving up our own data, we are essentially informing on those like us and enabling their manipulation. We shouldn’t do that just because we have an itch to play Clash of Kings.

So where does this leave us? I like to play Clash of Kings as much as the next guy and frankly, when I think of it in terms of the harms likely to come to me, Clash of Kings can win pretty easily. When I realize that my own visceral reaction to privacy harms really isn’t to the point, I’m a little less cavalier about parting with my data. The truth is, though, that this is a place for governmental regulation, just as it is in the case of voting rights. In today’s political climate I won’t hold my breath, but the way we all think of these issues needs to undergo a shift away from our worries about our own individual private lives. As important as each of us is as an individual, some of the most worrisome harms come from the effect on the groups to which we belong. We need to shift our focus toward the harm these privacy violations cause all of us by enabling the manipulation of the public and the vitiation of our democracy.

Originally appeared in The Hill, 3/01/20

Robert Howell

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Robert Howell is professor of philosophy at SMU. Author of Consciousness and the Limits of Objectivity (Oxford, 2013).

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