14 July 2022. Privacy | High streets
Why we need to think of privacy a a positive right // Reinventing the high street
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1: Why we need to think of privacy as a positive right
One of the issues at stake in the overturn of Rove v Wade by the Supreme Court—which might also be critical in a slew of other decisions—is whether or not Americans have a constitutional right to privacy.
Why there should be a right to privacy is misunderstood, so it was good to see Julia Angwin at The Markup interview the law professor Neil Richards on the subject of privacy. He’s the author of Why Privacy Matters.
And he wrote that book because that was the question that people kept asking him:
I kept giving them the same answer:.. Privacy matters because privacy is about human information. We've known for a long time that information is power. We know now that human information confers power over human beings. If we care about our ability to be authentic, fulfilled, and flourishing humans, we need to care about the rules that apply to our information.
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(Jeremy Bentham’s Panopticon. Image by Blue Akasha via Wikipedia. CC BY-SA 4.0)
He’s also pretty trenchant about several of the things that privacy isn’t. The first thing that it’s not about is hiding dark secrets—with the implication that if you don’t have such secrets you don’t need to worry:
This nothing to hide fallacy is dangerous because it promotes a kind of privacy fatalism and a sense that people who demand privacy must be deviant or criminal or wrong. There are certain facts about all of us (say our sexual behavior or personal health information) that we don't want disclosed. Put another way, everyone needs privacy at one time or another, and this need for privacy is legitimate.
The second thing it’s not about is protecting people from creepiness.
creepiness is under-inclusive. There are many things we don't notice that can be really bad for us. Think about information practices like secret social scoring or racially biased algorithms that we don't get to interrogate. We never see these secret data practices or whether they are “creepy”; we only see their result.
And the Other problem is that creepiness is malleable—it varies according to time and place, and for this reason actors who might not share our interests may seem to change the definition of “creepiness”:
Facebook has been very effective at this; it is effectively running a long con of trying to normalize information and surveillance practices that would have been completely unacceptable to people if they'd actually been asked to agree to them in the first place.
He’s also pretty scathing about the idea that giving people “control” over their data somehow disposes of the privacy problem:
We get these nice shiny dashboards with all sorts of different buttons and sliders, but we rarely get the choices we might want, like “no targeted ads” or “only use my data to help me.” We only get the choices that don’t do violence to the business models of surveillance capitalists... While control sounds appealing in theory, in practice it's ineffective. It leads to the imposition of some really regressive and disempowering data practices.
Privacy needs to be seen more positively. For Richards, it is an “instrumental” good, that helps us get to other things that we care about as societies. He has a few examples in the interview, taken from his book: identity, freedom, and consumer protection.
Identity:
(Privacy) helps us figure out who we are, and what we believe in. This is why teenagers close their bedroom doors and why libraries have fought for the confidentiality of library records. It's because when we're watched, we act and behave differently.
In terms of freedom, we know that we behave differently when we’re being watched, and there are shelves of dystopian literature that tell us this story:
Developments in information technology mean that privacy is going to be even more important to sustainable democratic self-governance in the future than it has been in the past.
In terms of consumer protection, one of the consequences of the Industrial Revolution was that we discovered that consumers needed protecting. Digital information has eroded some of these rights:
This included rules against deceptive advertising and other consumer protections like workplace safety and anti-discrimination laws. We're going to need a similar set of legal protections to be sure that we can trust the digital economy and take advantage of its often magical services without being betrayed, manipulated, sorted, discriminated against, or otherwise mistreated.
Finally, Angwin asked him about the draft bipartisan American Data Privacy and Protection Act, which was published in June. I haven’t been following this closely, but on the upside, Richards reckons that it “is the strongest privacy bill that's ever been seriously considered in the United States.”
What’s missing, for him, is a duty of loyalty. This is an interesting requirement—similar to the legal requirements placed on doctors and lawyers—that would shift the balance in how the law is assessed in practice:
A duty of loyalty is the substantive requirement that a company that receives data from a trusting consumer has to use the data in the consumer’s best interests and not in ways that are purely self-serving to the corporate bottom line. Duties of loyalty have just started to be seriously considered in privacy law, but they have worked across our law for centuries.
What’s interesting about this is that the companies who have values and brands that require them to care about their customers already behave in this way. For me, what the “duty of loyalty” does is to raise the regulatory floor—so the companies that don’t care don’t gain commercial advantage from it.
One footnote to this: Richards’ chair, at Washington University in St. Louis, seems to be funded by the Kochs. I wondered at first if I could trust his perspectives, since I certainly don’t trust those of the Kochs. In the end I took the view that I could trust the editorial judgment of the The Markup.
2: Reinventing the high street
Good high streets (main streets, if you’re in the US) are a public good. They represent public spaces which, at least in theory, can be used by anyone; they have a social function which is at least as important as their retail function.
For this reason, the terrible state of many of the UK’s high streets is a cause for concern.
(If we keep doing the same thing, we’ll probably get the same result. Empty shops in an English High Stree. Photo: Philip Halling at Geograph. CC BY-SA 2.0)
Positive News, which does pretty much what it says on the tin, has been running a series of short articles, from a UK perspective, on ‘re-inventing the high street’. There are stories here about pop-ups, artists, fashion stores that are now climate hubs, repair hubs, and so on.
One of the articles lists ten quick solutions to the crisis of the high street, and not just in the UK. Some of these are familiar: think beyond retail, add residential into the mix, do more experimentation, make it greener, connect physical spaces to digital layers.
But three of them were perhaps a bit more stretchy, on changing the financial model, nurturing community ownership, and on social purpose:
New financial models:
Experts seem to agree that the relationship between businesses and landlords needs to change, fast, with rental systems becoming more flexible. Retailers including All Saints and New Look are already renegotiating their lease terms to push for “turnover-based rents” to reflect the takings of individual stores. “Leases are too long, too unyielding,” says retail expert Mark Pilkington.
One of the mysteries of the retail sector is why upwards-only rent reviews haven’t been outlawed as anti-competitive. One of their adverse effects is that landlords will leave buildings empty because leasing them at a lower rate than the book rate implied by the balance sheet can actually create financial issues. We might need to see some bankruptcies in the property sector to bring rents back down.
The third thing that’s mentioned here, clearly related, is encouraging community ownership of buildings:
Nick Plumb, policy manager at independent trust Power to Change... and colleagues predict that community access and ownership of key buildings on the UK’s high streets may be pivotal to their survival. Their stats suggest that community-owned shops have a 94-per-cent survival rate and a massive 56p of every £1 spent in a cooperative space is pumped back into the local economy. Some suggest introducing community right-to-buy laws to force unused or neglected properties back on to the market, where they can be bought by community trusts.
Also mentioned, and also related, is the idea of encouraging independents. Again, significantly more of their turnover stays in the local area. And this may also connect to social purpose, although I thought the description in the piece didn’t go far enough:
Retail guru Mary Portas forecasts huge growth in what she calls “the kindness economy” – shops and businesses that somehow contribute with “decency” to making life better. “We’re looking at a whole new generation who aren’t going to prop up the likes of Philip Green any more,” (retail guru Mary Portas) told the Guardian. “They’re not supporting businesses who don’t prioritise people or the planet. There is a new value system at play.”
In terms of the high street, that probably means going beyond retail to a mode where service is part of the offer, there’s expert knowledge on hand, where customers can learn from each other, and where public value is being created alongside commercial value.
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