The website Wikileaks recently published hundreds of thousands of confidential State Department cables. These communications apparently reveal the details of conversations with, and personal impressions and assessments of, foreign leaders and diplomats. Many fear that the leak will undermine international relations in profound and unknowable ways. One of the unintended consequence of the leak, however, may be to strengthen the case for a national consumer privacy law.
Intimacy would not be possible without privacy—as Charles Fried, Tom Gerety, Robert Gerstein, and Julie Cohen so effectively show. Privacy means that the individual may choose to whom to reveal the details of her inner life. A decision to trust begets trust, such that I will be more likely to reveal myself to those who reveal themselves to me. Escalating, mutual revelation is how friendships, families, and other intimacies often grow.
What is true of people is presumably true of states. Ground rules of confidence and secure channels of communication spark candor, which in turn breed trust and intimacy. Interstate intimacy has profound repercussions. Trust, won even through gossip, facilitates diplomacy and hence has the potential to avert hard power. As Steven Aftergood of FAS points out, “If Wikileaks were … anti-war, it would safeguard, not disrupt, the conduct of diplomatic communications.”
We should not take this analogy too far: there is a big difference between safeguarding interpersonal/state communications and hiding policy decisions. The former is necessary for effective diplomacy, the latter is potentially destructive to democracy. I certainly have a problem with, for instance, secret negotiations of a binding copyright treaty.
The cables reveal both confidences and policy. Everyone knows that even non-clandestine diplomats must keep their eyes and ears open, but the leaked communications reveal instructions from the State Department for diplomats to secure specific details about their counterparts abroad. Conversations and personal passwords alike can be aggregated and downloaded, converting intimate interpersonal meetings into utilitarian data points. Mixing diplomacy with intelligence gathering may be a poor policy decision in that it undermines the very trust required for intimacy.
But the twin lessons of Wikileaks should be obvious. And, I would argue, apply just as readily to companies and consumers as they do states. First, there must be a space for diplomatic and consumer candor. By consumer candor, I mean nothing more grandiose than a well-earned comfort in revealing to a business who you are and what it is you want, so that they can provide that thing to you.
Second, it is possible and often desirable to separate out functions such as diplomacy and sales from surreptitious information gathering activity. As with diplomats, companies do not earn trust by using every interaction with a consumer to profile them, much less by storing that information in a database that can, and often does, leak out.
Maybe these lessons will finally seep in. It took the revelation of video records of a prominent judge, after all, for Congress to pass the Video Privacy Protection Act. Here, again, we see bipartisan condemnation of the leak as disruptive to national security and damaging to U.S. foreign relations. Couple this rare point of agreement with a bipartisan consumer bill and an incoming Speaker who once filed a lawsuit under federal electronic privacy law and some real possibilities open up.