Alfonse D'Amato

Do we have the right to privacy, or not?


Defenders of privacy and freedom from unnecessary intrusions into legal rights got a wake-up call on two fronts last week. One involved our expectations of privacy in the internet age, and the other challenged our assumptions about attorney-client confidentiality.

In the first case, boy billionaire Mark Zuckerberg did his best imitation of Captain Renault in “Casablanca,” being “shocked, shocked” that Facebook data was breached and apparently widely disseminated for political purposes during the 2016 presidential campaign. Forget that the whole premise of Facebook — from the days it was concocted by Zuckerberg in his dorm room — is precisely to facilitate the sharing of information. The business model of Facebook and other online platforms gives users a means to communicate widely in exchange for giving advertisers wide access to those communications.

Anyone who has a Facebook page or who’s browsed online leaves a digital information trail regularly mined by advertisers. That’s how Zuckerberg became a billionaire. The lesson for all to learn is that nothing we do online is ever truly private. If we want privacy, we must be very careful about things we put online.

What seems to have suddenly gotten everyone’s hackles up in Washington is that Facebook’s vast troves of digital information were somehow appropriated for nefarious political purposes by a shadowy company that also gained access to personal information users had willingly, if unwittingly, posted on Facebook. Unfortunately for the mostly left-leaning geniuses who inhabit Silicon Valley, the geeks who figured out how to access this data ran a conservative-leaning company called Cambridge Analytica, which used the gold mine of information it gleaned from Facebook to construct profiles of its users that could then be used to target political messages to them.

If you’re at all politically active, you already know that every public action you take in support of a candidate or cause is information that others can use to target you with online ads. If you belong to the Sierra Club or the NRA, you’ll receive online ads directed at those interests. If you give to candidates of a political party, other candidates will mine public records of your contributions to solicit online contributions too.

It turns out that what Cambridge Analytica and other digital information-mining companies have managed to do is construct such detailed voter profiles that campaigns can now micro-target key voter groups with pinpoint accuracy and identify where candidates’ personal campaigning is most likely to have the greatest voter impact. During the 2016 presidential election, the Trump campaign kept visiting a swath of very specific but less-traveled areas in key Midwestern states that the Clinton campaign was ignoring or taking for granted, leading to the election-night surprise that saw those states fall into the Trump column.

Much has since been made of the insidious influence wielded by Russian hackers, who also mined Facebook and other digital sources to convey election disinformation, supposedly helping turn the election Donald Trump’s way. But the reality is that the guerilla tactics of Cambridge Analytica and other similar entities are what undercut the Clinton juggernaut and helped open the way for Trump to become president. Diminished privacy and information transparency in the digital age won the day. In a very real sense, Silicon Valley did itself in.

On another privacy front, long-held expectations of confidentiality deeply embedded in U.S. legal traditions also came under recent assault. Most Americans assume that communications with their lawyer — like those with their doctor or confessor — are sacrosanct and cannot be pried open by law enforcement. But that assumption was seriously challenged when FBI agents conducted a raid of Trump’s personal attorney, Michael Cohen.

The information scooped up in this dragnet apparently may be related to actions Cohen took to protect the president from potentially damaging disclosures about his personal life. One can only imagine what similar FBI raids would have uncovered about the personal lives of half of our previous presidents, but in today’s world — as Facebook proves — nothing is private.

But the fundamental question here is, where does this erosion of our right to privacy end? We can definitely give it up when we communicate publicly online. But do we give it up when we communicate privately with an attorney? Perhaps the best guidance came from the great Justice Louis Brandeis, who wrote, “The most comprehensive of rights, and the right most valued by civilized men, is the right to be let alone.”

Al D’Amato, a former U.S. senator from New York, is the founder of Park Strategies LLC, a public policy and business development firm. Comments about this column?