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Computers, Privacy & the Constitution
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Introduction
The 2000 Surgeon General’s Report remarked that in the midcentury, “[i]t was hard to imagine that a habit so widespread, so apparently normal, so integrated into American culture…could turn out to be fundamentally destructive.” The Report was referring to smoking, but it could just as easily have referred to a more contemporary issue: data privacy. In regularly giving companies vast quantities of personal data and using few privacy precautions, many Americans today have developed unhealthy data habits. Though widespread, these habits, like smoking, have the potential to be fundamentally destructive. Looking to the strategies of anti-smoking advocates in the twentieth century can provide a guide for changing the data habits of people today.
Efforts to Reduce Smoking
While nicotine addiction undoubtedly played a role in the slow decline of cigarette consumption, the social norms around smoking were key to its continued prevalence. For decades, pervasive marketing campaigns fueled the popularity of cigarettes. The regular appearance of cigarettes in cinema and television, as well as their real-life consumption by celebrities, helped establish smoking as a cultural norm. The increasing affordability of cigarettes made the habit available to a wider population. Smoking became a popular pastime and coping mechanism among soldiers which they brought home when they returned from war.
This confluence of circumstances posed a serious challenge to anti-smoking efforts. Only through a combination of economic incentives, media campaigns, legal tactics, and medical research was ultimate decline smoking rates made possible. Legislation like the Occupational Safety and Health Act of 1970 obliged companies in the 1970s to foot the bill for rising health care costs. This created new economic incentives to support workplace practices which would reduce their employees’ health risks. Insurance companies developed further incentives by offering discounted policies to nonsmokers. For some, these economic pressures were more compelling than the risks to their health.
Anti-smoking advocates centered much of their efforts on the tobacco industry’s media presence. The Public Health Cigarette Smoking Act, passed in 1969, banned cigarette advertising on television and radio. Though cigarette companies were able to shift their marketing focus elsewhere, the Act removed one of the most powerful and longstanding tools from the industry’s arsenal. The disappearance of televised tobacco ads corresponded with a change in the television content itself. The number of cigarettes that television characters smoked in 1982 had decreased ninefold since 1964. Advertisements by anti-smoking advocates used a variety of tactics ranging from humorous satires of famous tobacco ads to emotional accounts of tobacco-related illnesses. Early public health campaigns often focused on children and pregnant mothers, groups who were both at higher risk and likely to raise concern. These changes to cigarettes’ media landscape were crucial to changing their status in the real world.
Regulations played a significant role in developing economic incentives and altering media coverage, but anti-smoking advocates also used the law to more directly regulate smoking. In the 1970s, states began passing bans on smoking in public places. By 1990, public smoking was restricted to some degree in 44 states. Lawsuits by private individuals led courts to bolster nonsmokers’ rights. These legal efforts correlated with a growing understanding of the effects of environmental tobacco smoke. Previously, the tobacco industry had made successful legal arguments regarding the personal freedom of smokers to smoke, but new research on the dangers of secondhand smoke brought nonsmokers’ rights to the fore.
Together, these developments changed the culture around smoking. Once considered a glamorous and socially acceptable practice, smoking has come to be viewed as a dangerous and even amoral habit of only 14% of the U.S. population. Though smoking has far from been eliminated, anti-smoking efforts have achieved admirable progress.
Application to Data Privacy
Americans today have integrated data-collecting technology into their lives without understanding how these devices and services can be “fundamentally destructive.” Like secondhand smoke, the choices of which technologies we use and how we use them can affect the privacy rights of people with whom we interact. Many Americans have some notion that protecting their data privacy is important, but believe that societally, we have reached a point of no return.
The comparison between smoking and modern data habits is imperfect; the use of many products and services that collect data are likely more necessary and more valuable to people’s lives than smoking. Thus, unlike with cigarettes, the goal with respect to data habits is not to eliminate the use of these technologies, but to use them in ways which better protect our personal data and that of those around us. Poor data habits also do not have the former social cachet of smoking. However, the social pressure and networking effects of social media platforms and other data-collecting services create deeply ingrained cultural incentives to use them and use them in the same manner as our peers. In light of the similarities between Americans’ smoking habits in the 1960s and their data habits today, the anti-smoking efforts of the twentieth century may serve as a good model for changing the culture around data privacy.
As with smoking, economic pressure rather than personal risk may better motivate change. Data privacy regulations like the GDPR and California Consumer Privacy Act impose up to millions of dollars in fines for data privacy violations, and at the very least, these laws alert people the problem. The growing cyber insurance market could offer further financial incentives by offering lower rates to businesses with good privacy practices. Awareness and understanding of data privacy issues could come in the form of pro-data privacy media campaigns like those used by anti-smoking advocates. Similarly focusing campaigns on children can help gain the attention of those who otherwise might not care; focusing on how a user’s data habits affect others can help counteract the view that data-collection is purely a matter of personal consent. Just as the government requires health warnings to be prominently displayed on cigarette packages, legislation could require that privacy risks be prominently displayed on devices and browsers rather than buried in terms of service.
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