The problem is stated clearly by Graham: "The legal community has paid little attention to the consequences for individual privacy of the development of computers" (Graham 1987, p. 1396). Graham does say that the common law has the capacity to protect privacy rights from invasion of privacy just as it expanded to combat threats in the past, but he also says that privacy law has lagged behind technology: "Privacy law has failed to respond, as it has in the past, to technological changes that influence the degree of privacy to which we are accustomed" (Graham 1987, p. 1396).
Technology has changed the nature of "privacy" according to some because technology has altered the meaning of "public." In an earlier age, people possessed greater anonymity than in the computer age, given that information is increasing with vast stores of data about everyone accessible by computer. The old concept of privacy is thus disappearing, though computer users are realizing this fact more and more and so seek ways to prevent any further erosion of privacy. While it remains true that massive amounts of information may be gathered in one place, analyzed, and disseminated, users still try to remain anonymous to as great a degree as possible ("Virtual Privacy" 1996, pp. 16-17).
The Center for Democracy and Technology concluded in 1997,
The deployment of key recovery systems designed to facilitate surreptitious government access to encrypted data and communications introduces substantial risks and costs. These risks and costs may not be appropriate for many applications of encryption, and they must be more fully addressed as governments consider policies that would encourage ubiquitous key recovery ("The Risks of Key Recovery, Key Escrow, and Trusted Third Party Encryption" 1998).
Most of the encryption systems used today, the organization points out, support rather than hinder the prevention and detection of crime. Encryption is used to protect burglar alarms, cash machines, postal meters, and a variety of vending and ticketing systems from manipulation and fraud, and encryption is also being deployed to facilitate electronic commerce by protecting credit card transactions on the Internet and by hindering the unauthorized duplication of digital audio and video. The use of encryption remains patchy, however:
Most automatic teller machine transactions are protected by encryption, but transactions made by bank staff (which can involve much larger amounts of money) are often not protected. Most Internet electronic mail is still sent "in the clear" and is vulnerable to interception. Most cellular telephone calls in the U.S. are still sent over the air without the benefit of strong encryption. The situation is similar in other areas. Members of the law enforcement and intelligence communities continue to express concern about widespread use of unescrowed cryptography. At the same time, these communities have expressed increasing alarm over the vulnerability of "critical infrastructure." But there is a significant risk that widespread insertion of government-access key recovery systems into the information infrastructure will exacerbate, not alleviate, the potential for crime and information terrorism ("The Risks of Key Recovery, Key Escrow, and Trusted Third Party Encryption" 1998).
This is because increasing the number of people with authorized access to the critical infrastructure and to business data will increase the likelihood of attack, whether this be by technical means, by exploitation of mistakes, or through corruption. In addition, key recovery requirements, to the extent that they make encryption cumbersome or expensive, can discourage or delay the deployment of cryptography in increasingly vulnerable computing and communications networks ("The Risks of Key Recovery, Key Escrow, and Trusted Third Party Encryption" 1998).
Encryption is also imperfect and may fail in some situations. Even among e-mail programs for instance, there are different and incompatible methods for accomplishing the task. This fact can mean that the sender will use an application that is not compatible with the system of the receiver, in which case the receiver will not be able to decode the message (Kenworthy & Lang 1998, p. 144).
Thus, it is evident that concerns over privacy are fueling much of the desire for encryption and opposition to any Key Escrow plan. Users do want the government to intervene to make encryption more uniform so one program will be able to understand another, but users do not want the government to possess the means to contravene the system to spy on Internet users. It is also believed that such spying would cause more harm than it would lead to any benefit for society. While encryption can pro5tect a given message and may contribute a sense of privacy to computer users, the ways of invading privacy increase exponentially. When a user buys something online, for instance, he or she uses encryption to protect his or her credit card, and this may be effective. The fact of the purchase itself can become part of a database about products and preferences, however, so that companies can decide who to contact about other products. Companies trade this sort of data and so break that aspect of privacy all the time, another demonstration that we are all information.
The Developing Technological World
Winner (1997) is divided on the direction and value of technological change and on the specific business and sociological changes accompanying the shift to a computer-driven society. Part of the impetus for his investigation is a visit he makes to the workplace of the Remote Encoding Center, where he finds workers who are caught up in work that is as repetitive, uninspired, and deadening as any assembly line ever was. He also finds that many of the predictions made about the way technology would transform society and make it more utopian have not come to pass and that the ideas of analysts are changing in face of the reality of this sort of work and the more widespread use of this technology.
The nature of the prevailing view and how widespread it is noted by the author, describing this as technological determinism, which many embrace and others fear. The author finds that the new ideology accompanying this change is based in part on the philosophy of Ayn Rand, with heroic individuals struggling against the forces of small-minded bureaucrats and the ignorant masses, based on supply-side economics, and a free-market economy. The author refers to those holding these views as cyberlibertarians and says that they believe this will lead to the ideals of classical communitarian anarchism. The author cites some of these authorities and considers their views, noting the belief that this new social order would also mean increased democracy, with cyberspace standing in as the new public square where everyone could indulge in free expression. This development is seen as inevitable and far-reaching, with various documents published online to support this position and to guarantee such freedom.
However, the author also finds that there are dystopian elements within this utopian ideal and that many of these elements are gaining power and becoming reality. Consolidation of the lines of communication in the hands of the few, as is taking place as various media become part of larger concerns, creates a major concern. Also of concern is what sort of communities will form in cyberspace, with some seeing increased social separation online alongside some unification in a more impersonal way. Ultimately, the author calls for readers to become more aware of the possibilities and to see what sorts of changes are actually taking place as a way of taking action, though he also says this will not be enough and that new opportunities for shaping technology must be created and used. What is happening more and more, though, is that the technology is shaping the social order rather than being shaped by it, and again he refers to those working in the Remote Encoding Center as examples.
As Dean (2002) points out, some of the concerns about the dystopian elements of technology derive not from its failure but from its success. She notes,
One might think that the possibility of limitless information would help realize the claims of a democratic public sphere. If those who participate in the "conversation" have an abundance of data at their disposal, shouldn't they be able to make more informed decisions? Some versions of public deliberation stipulate that nothing be omitted from consideration, that participants have access to all relevant information. Yet the conspiracy rhetoric pervading current assessments of the Internet links precisely this vision of an end to ignorance, secrecy, and the rule of expert knowledge that animates the ideal of a public sphere with gullibility, seduction, and widespread irrationality. The very prevalence of information and inclusion of multiple voices claimed on behalf of democratic discourse morphs into the undecideability of truth claims and the fear that "all kinds of people" will enter the conversation (Dean 2002, p. 72).