Intellectual Privacy: Rethinking Civil Liberties in the Digital Age

by Neil Richards

Most people believe that the right to privacy is inherently at odds with the right to free speech. Courts all over the world have struggled with how to reconcile the problems of media gossip with our commitment to free and open public debate for over a century. The rise of the Internet has made this problem more urgent. We live in an age of corporate and government surveillance of our lives. And our free speech culture has created an anything-goes environment on the web, where offensive and hurtful speech about others is rife.
How should we think about the problems of privacy and free speech? In Intellectual Privacy, Neil Richards offers a different solution, one that ensures that our ideas and values keep pace with our technologies. Because of the importance of free speech to free and open societies, he argues that when privacy and free speech truly conflict, free speech should almost always win. Only when disclosures of truly horrible information are made (such as sex tapes) should privacy be able to trump our commitment to free expression. But in sharp contrast to conventional wisdom, Richards argues that speech and privacy are only rarely in conflict. America's obsession with celebrity culture has blinded us to more important aspects of how privacy and speech fit together. Celebrity gossip might be a price we pay for a free press, but the privacy of ordinary people need not be. True invasions of privacy like peeping toms or electronic surveillance will rarely merit protection as free speech. And critically, Richards shows how most of the law we enact to protect online privacy pose no serious burden to public debate, and how protecting the privacy of our data is not censorship.
More fundamentally, Richards shows how privacy and free speech are often essential to each other. He explains the importance of 'intellectual privacy, ' protection from surveillance or interference when we are engaged in the processes of generating ideas - thinking, reading, and speaking with confidantes before our ideas are ready for public consumption. In our digital age, in which we increasingly communicate, read, and think with the help of technologies that track us, increased protection for intellectual privacy has become an imperative. What we must do, then, is to worry less about barring tabloid gossip, and worry much more about corporate and government surveillance into the minds, conversations, reading habits, and political beliefs of ordinary people.
A timely and provocative book on a subject that affects us all, Intellectual Privacy will radically reshape the debate about privacy and free speech in our digital age.

Genres: Law, Technology, Nonfiction

240 pages, Hardcover

First published October 1, 2014

Reviews

[Carsen Codel · Rating 4 out of 5]

An engaging look at the intersections of privacy, free speech, and intellectual developments of individuals and society. After a year of legal-centric courses to finish out my undergraduate career, this was a nice way to see some of those concepts intersect in new ways and reinforce each other. Biggest takeaway is how much privacy serves to provide power and effectiveness to the first amendment. Without true privacy protections, our ability to think, reason, and debate are damaged.

[Andréa]

Note: I received a digital review copy of this book from the publisher through NetGalley.

[Katie Boyd · Rating 4 out of 5]

There are some parts of this that get a little bit heavy into law and law history, or, at least, more than I tend to read. But, I found those aspects educational, the historical development of law fascinating, and the rest of it, describing in detail why these values are important, of the sort that I want everyone to read.
There is a section on libraries and librarians, and there is also a good amount of time describing the e-book paradox (that it gives the illusion of privacy b/c in your physical surroundings no one is easily identifying what you read, but in the digital realm Amazon (or whomever you got the e-book from) is collecting incredibly detailed information on what you are reading. However, they did not bring up the connection between the two, in loaning e-books through your library. This is a sticky place for us librarians, who want so desperately to hold to our ethics of maintaining the privacy of your reading habits, but once you go outside of the control of the library, onto, say, Amazon's site (which you have to do to access your e-book, if it's in kindle format.) you are in the realm of Amazon's data collection. Also, when patrons express a desire for our software to be more like Amazon, by suggestion similar books, or whatnot, those features are brought about by such data collection and use that librarians classically do not want to use because of our seriousness about patron privacy. One could go on and write full books on this topic, but I think we need to keep in mind these values and ideas discussed in this book when we discuss them. And I rather wished they were mentioned, but that's okay. The author is a law professor, not a librarian, so it probably wasn't in as much of his experience as mine.

[Bill Sleeman · Rating 4 out of 5]

Intellectual Privacy: Rethinking Civil Liberties in the Digital Age Is not just about privacy or intellectual access but also the very future of our democracy, which, as we have seen with the most recent national elections, is in a precarious state.

Any book that celebrates librarians as intellectual freedom fighters is going to get high marks in my review:

”it might seem odd at first to seek answers to questions of intellectual freedom for a digital age from librarians. After all, librarians aren’t often thought of as particularly imaginative or innovative. But this stereotype is wrong. Librarians are our first and oldest information professionals, with special expertise in the issues intellectual records raise… [pages 176-177]”

Make no mistake Professor Neil Richards isn’t just pandering to the buyers of his book (librarians do tend to be the primary purchasers of an academic work like this) but really does believe – and makes a cogent argument for – the influence of librarians and ALA have had, and continue to have, on protecting intellectual privacy.

Overall, in this engaging work published by Oxford University Press in 2015 Richards offers both a response to our familiar understanding of privacy (i.e. Brandeis and Warren) and legal protections thereof (i.e. Prosser’s four torts) and a well-researched argument for a new understanding of how to protect intellectual privacy. Along the way he notes correctly and repeatedly that privacy and democracy; the “informed citizenry” ideal attributed to Jefferson, must go hand-in-hand. To protect one is to protect the other

New sources of information, really data about information and readers, now shapes how we understand protections to be free to explore ideas – and the existing structure is not sufficiently expansive to accommodate the changes wrought by technology. Despite the popular claims Richards insists that privacy is not dead but misunderstood. His solutions to rein in big content providers and to require greater protections against (and for their own good as well) bit ISPs, data providers, blogs, social media and services providers (think online shopping providers of all scales) are thoughtful and possible but may require a more technology informed community of regulators and politicians to accomplish. Do we need to make that happen soon…absolutely considering that data breaches are rampant![even as I write this Facebook has shared that there was yet another breach, albeit minor so they claim, of data about users through their support FB group app : https://thehackernews.com/2019/11/fac... ].

More insidious still is the unchecked accumulation of data about citizens that governments acquire – as previous whistleblowers have demonstrated. All these breaches of collected data only serves to limit citizens’ ability to pursue ideas and/or develop their lives. As author Neil Richards says – If you don’t know who is watching you, who is recording you or how that data is being used you will most likely conform to expected norms rather than peruse the original OR radical OR deviant OR different idea. And our nation and our world needs those ideas.

A thoughtful, intelligent and well-documented work that I highly recommend.

[Darren · Rating 3 out of 5]

Privacy, our rights to it and how we seemingly don’t always care or cherish it, is at the centre of this book’s focus. Privacy and free speech sit as uncomfortable bedfellows, made worse by the ease in which privacy can be allegedly destroyed by free speech and vice versa. Increasingly courts try and maintain a balance whilst, at the same time, corporations and governments are nibbling away at the edges.

This is an interesting, fascinating book that probably won’t be seen by as many people as it should. Its style (and price) will restrict its distribution and that is a shame. The author argues that society needs to keep up with technological change and that free speech needs to be cherished and maintained over privacy in most situations. Taking a counter position that free speech and privacy are rarely in conflict, the author suggests that we might be blinded to the bigger picture by society’s love of celebrity culture and other factors.

Of course, the average citizen probably doesn’t care, as long as their social media service is working and the latest reality television programme is being aired. What price progress? For the rest of us, it is a timely, concerning development that deserves greater focus and consideration. Books like this pose interesting arguments and can incite debate. Yet can they lead to change?

The book’s style is written for a professional, lawyerly-type audience. It could have done with being a bit more accessible to the mainstream reader and being a little less focussed on developments in the U.S. Relatively small issues overall, but important ones nonetheless. As you may expect, there is a lot of referenced notes and an extensive bibliography at the back so the determined reader or researcher won’t be short of additional reading.

The core arguments in this book deserve wider distribution and anything that acts as a barrier to these should be examined. Society needs to wake up as it might not be possible to put the genie back into the bottle after a time!

Intellectual Privacy: Rethinking Civil Liberties in the Digital Age, written by Neil Richards and published by Oxford University Press. ISBN 9780199946143, 240 pages. YYY