Feb 2021

Hartzog is Professor of Law and Computer Science at Northeastern University School of Law and College of Computer and Information Science. For too long, conversations about what technology can do have been held in separate rooms and with separate people to conversations about what technology should do. That is starting to change.

Finding a technology expert that can give us insights and encourage further thinking in ways that are accessible to those that are not themselves experts is not always easy. The language of technology is too often impenetrable for the average reader. Hertzog is one of those rare finds and manages to explore privacy through the lens of technology in a wonderfully readable manner. He understands how fundamental the question of trust is and also how privacy is so much more than data security.

“Harm is rightfully a central concern in privacy law. We just need to take a broader view of the harm we want to protect against and consider different approaches to mitigating it. Traditional harm thresholds that focus on physical damage and pecuniary loss fail to capture many of the reasons humans value privacy in the first place. Yet harm remains a key gatekeeper for private action. One way to balance these concerns would be to increase scrutiny of the instrumentalities of privacy harm and focus on ex ante strategies designed to either minimise or mitigate the harm before it happens. Enter design.”

Hertzog of course brings the distinctly American perspective on privacy to his deliberations, but this discussion will chime so well with those of us familiar with the European regulatory model where privacy by design is now such a key element. I do believe firmly that the absence of privacy by design has been the cause of many a bad outcome; large and small, across the globe. It must follow, therefore, that if such a design approach had been built in from the beginning, the outcomes would have been very different.

Hertzog concludes by saying “Design is everywhere. Design is power. Design is political. It can protect our vulnerabilities, or it can exploit them. We must all work for rules, guides, resources, and behaviours that will ensure our technologies are safe and sustainable for everyone. Tomorrow’s privacy depends on what we build today.”

The next question must be – ‘who decides and who designs?’ Perhaps Hertzog will consider that topic for his next book!