The Tricky Trust-Transparency Transposition: Is the Apple v. FBI Fight a Game Changer in America's Value for Privacy?

transparency_sganowTransparency is about trust.  ("Gee, Scot, that is one death grip you have on the obvious.") Fair enough, but what is not always obvious is the interplay of the two.  I think the events of the last year and the current battle between Apple and the FBI illuminate this interplay oh so well.

1.     Transparency creates Trust.  This is probably the most simplistic relationship between the two.   Indeed, when a company and its practices are transparent, transparency reasonably causes the customer to have more trust as there is not a perceivable difference between what an entity says it does and what it actually does.  This is why almost every privacy regulation requires notice to an individual as to how their personal information is used.  This is hardly a new concept.  Notice and transparency are foundational elements of the Fair Information Practice Principles, which have been around since 1973.

2.     A lack of Transparency does not necessarily mean a lack of Trust.  Many of us do business with companies into which we have no visibility to how they handle our data or provide us services.  But we still get the services we want and we experience no negative repercussions from the company's practices, so trust in the company arguably exists.  Indeed, I regularly remind clients that good privacy practice is just good business as it builds trust and customer loyalty as a result.  This is especially true in surviving a data breach.

Similarly, I have also worn our country's uniform.  I fully understand there are some things that I, as a civilian, do not need to know.  There are national secrets that should be kept and there are loads of details in day-to-day governmental operations about which we citizens don't need to know (or more accurately don't care) about.  Rather, all things being equal, I trust my country to do what is necessary to protect the constitutional foundation of our democracy, maintain the peace and preserve our right to life, liberty and the pursuit of happiness.  To this end, the government has historically gotten the "benefit of the doubt."

3.     A lack of Trust can necessitate Transparency.  However, when trust in a company or government does not exist, the need for transparency is sometimes the only way to build trust back.  Indeed, an inverse relationship exists.  A low level of trust means a high need for transparency.

A current example of this relationship can be seen between U.S. citizens and their police departments.  Be it in Missouri, South Carolina, or New York, we can all agree that many in our country do not trust their community police.  While it is a complex problem with two sides to every story (again, Scot, thanks for mastering the obvious), there is no question that trust is lacking in that relationship.  And, as a result, we see a demand for transparency, especially in the requests for police body cameras.

Or, take the U.S. federal government and it's prior contention that it does not surveil its citizens.  In 2013, National Intelligence Director James Clapper was asked in public hearing, “Does the NSA collect any type of data at all on millions, or hundreds of millions, of Americans?” Clapper responded by saying, “No, sir… Not wittingly. There are cases where they could inadvertently, perhaps, collect. But not wittingly.”  As we learned from Edward Snowden's later disclosures, the NSA did conduct bulk collection under Section 215 of the Patriot Act.  Clapper has since stated he was wrong, but he did not lie.  The bulk collection ceased last November.

Apple v. FBI:  A needle mover?  I have written before that there are no omnibus privacy laws in the U.S.  The U.S. does not treat privacy as a fundamental human right explicitly called out in the Constitution.  Rather, unlike other countries, privacy is treated in sectors (financial, healthcare, 4th Amendment, etc.).  I have also said we won't see such an omnibus law or Constitutional amendment until citizens demand it of their legislators.  I recently posited to my law school class if, with the Apple v. FBI fight, we are nearing that needle-moving event when citizens have had enough?  Does Apple, in its position to protect its (citizen) customers' privacy, carry the banner for a fundamental right and protection?  Many will say Apple is not protecting privacy and the goodwill that goes with it, but rather only protecting their bottom line. Does that really change the question or premise?  Even if Apple is motivated by profit, it is doing it based on a perceived value for privacy and security in their customer (citizen) base.

Is it a needle-mover?  Like high gas prices in 2008 finally getting Americans to buy fuel-efficient cars en masse, we have been fooled before in seeing permanent change being undermined by the removal of short-term pressure.  I am cautiously optimistic.  I do know that the slow and methodical dialogue is a good thing.  Indeed, in reading the news this past year, I think the average American's value for privacy might actually be hitting a critical mass.  Five years ago Apple may not have been so empowered.  Five years ago the government may not have such a hard time making its case.  Things are different today.  With a loss of trust in the government's use of information, a demand for more transparency has strengthened.  The government's benefit of the doubt of which I spoke before has been lost to some degree.  Now, in the San Bernadino iPhone matter, that may not win the day in court.  However, the transposition of trust and transparency cannot be denied in the push back in the court of public opinion

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Scot Ganow |