“PETs Must Be on a Leash”: How U.S. Law (and Industry Practice) Often Undermines and Even Forbids Valuable Privacy Enhancing Technology, forthcoming in the Ohio State Law Journal, just posted to SSRN.
U.S. law puts the onus on the individual to protect his or her own privacy with only a small number of exceptions (e.g. attorney-client privilege). In order to protect privacy, one usually has three possible strategies: to change daily behavior to avoid privacy-destroying cameras or online surveillance; to contract for privacy; or to employ Privacy Enhancing Technologies (PETs) and other privacy-protective technologies. The first two options are very frequently unrealistic in large swaths of modern life. One would thus expect great demand for, and widespread deployment of, PETs and other privacy-protective technologies. But in fact that does not appear to be the case. This paper argues that part of the reason is a set of government and corporate policies which discourage the deployment of privacy technology. This paper describes some of those polices, notably: (1) requiring that communications facilities be wiretap-ready and engage in customer data retention; (2) mandatory identification both online and off; (3) technology-limiting rules; and also (4) various other rules that have anti-privacy side effects.
The paper argues that a government concerned with protecting personal privacy and enhancing user security against ID theft and other fraud should support and advocate for the widespread use of PETs. In fact, however, whatever official policy may be, by its actions the prevailing attitude of the U.S. government amounts to saying that PETs and other privacy protecting technology, must be kept on a leash.
A last-minute update reconsiders the argument in light of the Snowden revelations about the widespread dragnet surveillance conducted by the NSA.