Advocates of extreme transparency on the internet, who imagine an electronic communication beast that ultimately strips away almost our entire privacy may claim that people behave better when being watched. However, that contention is questionable. It is, in fact, rather unbearable for many.
Over time, being constantly under the watchful public eye may make people behave worse, as it removes their inhibitions. That is one of the reasons why, in the previously cited Talmudic text, someone who felt an irresistible urge to sin (sexually) was counselled to at least disguise himself and go sin elsewhere, for as long as one feels shame and hides himself, the stain of sin can be cleansed off. Likewise, the Talmud frowns upon public confessions of private sins. One’s confessions should generally be to G”d and to Him alone, for as long as confessions remain private, the sins remain private, too, and the sinner can sincerely repent without being branded a hypocrite. The obvious exception is a confession for a very public sin, which, as it is already well known, won’t harm the sinner’s reputation any more; it is then hoped that the cathartic effect of a painful public confession may help the repentant be more contrite.
The Talmud’s advice would thus be for internet denizens to abstain not only from posting morally dubious, compromising images, videos, recordings and texts, but also to refrain from confessing to sins of one’s youth. Keep that dirty laundry in the hamper and wash it quietly. It’s good for your reputation among humans and will help one to repent and become more upright before G”d, because one will maintain the positive impetus of his or her natural sense of shame.
The great assaults on privacy of the social networks wasn’t expected. It wasn’t supposed to be like that. Originally, in the so-called Net 1.0 era, the internet was the great anonymous equalizer. As one famous caption proclaimed, on an ad figuring man’s best friend surfing an on-line forum, “On the internet, no one knows you are a dog.” Three factors eventually changed that equation. First of all, technology. Storage has become so cheap, and data mining so easy, that sites could log everything and keep those logs for a long time. Secondly, companies, operating in the legal vacuum created by emerging technologies whose impact legislators were still struggling to grasp, slowly conditioned people to renege on their privacy. Finally, after the 9/11 attacks on the Twin Towers in New York, legislatures throughout the civilized world authorized – for good reason – more widespread counter terrorism snooping.
That third factor encouraged all those sites that were not logging everything on line yet, to start doing so massively. Laws were passed requiring telecoms, internet service providers, banks and other financial companies to keep logs on just about everything, and to keep them for many months. In some cases, some law enforcement agencies even installed logging devices that even scanned the content of communications. At least in America, the law was then interpreted by law enforcement in such a way so as to allow tapping those logs, and scanning much other information, without needing a court warrant (this was meanwhile curtailed by the courts). Mission creep quickly extended the role of electronic surveillance. After terrorism, fighting organized crime quickly followed, which is arguably legitimate. Then, electronic surveillance became ubiquitous. Logs of private actions were increasingly treated like quasi public information. Private enterprises saw the writing on the wall: legislatures were not going to take privacy seriously, because they were looking for ways to limit, not protect privacy.
The above mission creep deserves its own treatment. Clever lawyers and prosecutors will argue that none of the above violates any laws, that police really can do all that snooping without requesting any search warrants, or that the standard for granting such search warrants should be very low. While that may be true according to the letter of the law (this really depends on the jurisdiction; there are significant differences between the US and the EU, for example, and even in the US, courts have occasionally stepped in and rebuked the government), it is surely not in the spirit of the law. Required standards of evidence, sentencing guidelines, the relationship between police and the press and much else were all developed in an era before such massive snooping was possible, and arguably, law enforcement’s ability to engage in widespread surveillance should prompt a societal dialogue that may significantly alter the way we deal with criminal investigation, conviction and punishment.
As I wrote, this deserves a fuller treatment, but let’s just note that sentencing guidelines presuppose that not every violator of a law can be caught. Accordingly, punishments have to be sufficiently severe to compensate for the fact that many people would willingly take a risk, thinking the odds of getting caught is low. Nowadays, however, it may be possible to catch a much larger proportion of certain types of wrongdoers, and that should figure in the equation of how to punish criminals. Furthermore, the fact that not every criminal can or will be prosecuted raises the sceptre of the accusation of selective enforcement, sometimes possibly for corrupt reasons. However, once technology allows for more widespread enforcement, the charge of selective, possibly corrupt enforcement becomes all the more poignant.
However, criminal investigation techniques and their legal basis are not the main topic of this four parts essay. As far as we are concerned, it suffices to note that the gradual destruction of privacy came about because of a combination of technological, legal, economical and organisational factors. The latter three, of course, are all societal factors.