Yale constitutional law professor Jed Rubenfeld makes a distinction that, I think, advances the debate over government and corporate surveillance: Privacy refers to the content of our communications, which is protected constitutionally. But the fact of our communications, which the NSA is exploiting, is not. What we need, Prof. Rubenfeld says, is legal protection for anonymity, so that individuals cannot be identified without due process.
From Jed Rubenfeld, We need a new jurisprudence of anonymity – The Washington Post:
In the world of data-gathering, the key concept for setting limits on government surveillance is privacy. But in the world of data-mining, the key is anonymity.
Anonymity is very different from privacy. Walking the streets, you’re not in private, but you may be anonymous if no one recognizes you. If you go into a store and pay cash for a book, what you’re doing isn’t private, but, again, you may be anonymous, and that anonymity might be very important to you. When people post material on a freely accessible Web site, their postings are public, not private — but they may well be anonymous. In such contexts, the question is not whether privacy should be honored but whether anonymity should be protected.
Anonymity can in some circumstances be a great freedom, worthy of protection. In others, it can encourage vicious behavior and enable crime. Solving the riddle of anonymity is the central question of the brave new digital world, even if our courts haven’t quite yet caught on.