Critics and skeptics argue that privacy will have no place in our inevitable big data future. I disagree.

Old forms of privacy might seem quaint today. But this is precisely because privacy is the result of our human values filtered through a social conversation about how those values should apply to our society at a particular social and technological moment.

The enormous changes that our digital revolution has wrought and that data science promises to make in the future do not excuse us from that conversation. On the contrary, the advent of powerful data science tools that threaten our identity, equality, security and trust in social and digital systems make that conversation essential.

Data and metadata Privacy is not binary

Much of the confusion about privacy law over the past few decades has come from the simplistic idea that privacy is a binary, on-or-off state, and that once information is shared and consent given, it can no longer be protected. These binary notions of privacy are particularly dangerous today and erode trust in our era of big data and metadata, in which private information is necessarily shared to some extent in order to be useful.

Several good reasons suggest that this is a bad way to understand privacy. First, the idea is problematic even at the level of ordinary verbal usage. If I know something about myself that no one else knows, we might call this a “secret.” But if I tell you my secret, the idea doesn’t stop being a secret. Odds are that if I am telling you a secret, then there is some kind of informal or formal trust relationship between us.

Protecting private info in intermediate states

In the government context, secrets and “top secrets” can be known by many people. But even these secrets are protected by a wide variety of legal, technological and operational tools, including criminal and contract law, encryption and other security tools, and the whole trade of spycraft. The same is true of corporations around the world that utilize confidentiality regimes, nondisclosure agreements, and trade secret protection to protect “secret” information.

The law has always protected private information in intermediate states, whether through confidentiality rules like the duties lawyers and doctors owe to clients and patients, evidentiary rules like the ones protecting marital communications, or statutory rules like the federal laws protecting health, financial, communications, and intellectual privacies.

Neither shared private data (nor metadata) should forfeit their ability to be protected merely because they are held in intermediate states. Understanding that shared private information can remain confidential better helps us see more clearly how to align our expectations of privacy with the rapidly growing secondary uses of big data.

Privacy rules are information rules

So privacy is not merely about keeping secrets, but about the rules we use to regulate information. Privacy rules are information rules, and in an information society, information rules are inevitable. When properly understood, privacy rules will be an essential and valuable part of our digital future – a future not ordained to take a single, shiny, privacy-denying form but, instead, a human creation.

This is the first of a series of posts in which I will explore privacy and big data.If you want to explore the topic further, please sign up below and get access to my paper: Big Data and the Future For Privacy

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I will also be speaking on “Big Data ethics and a future for privacy” at the Strata+Hadoop World conference in San Jose on March 30.

Article written with Prof. Neil Richards.

Data & Analytics Security Governance

Jonathan H. King

Jonathan H. King is Head of Portfolio Management, PA Cloud Systems, for Ericsson. His responsibilities include product area cloud strategy, business development, mergers and acquisitions, alliance development and go to market strategy. Prior to joining Ericsson, Jonathan was Vice President, Platform Strategy and Business Development for CenturyLink, as well as SVP of WW Business Development at Joyent and a Client Partner Director with the Global Solutions group of Verizon Business. Jonathan holds a B.A. in History from Miami University, a J.D. from Loyola University Chicago School of Law and a LL. M. in Intellectual Property and Technology Law from Washington University School of Law. Jonathan remains an active legal scholar currently researching and publishing articles on big data and privacy as a Visiting Scholar at Washington University School of Law.

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