Let me start from a bold prediction and a daring statement.
The prediction is that in 2020, online privacy will be more or less in the same place where digital copyright is today: there will be a growing majority of people who knowingly violate the respective laws on the grounds that the legal system has remained inert while the real life has moved on.
The statement is that privacy laws and copyright laws have nearly nothing to do with the interests of their alleged subjects — the individuals and authors, respectively. Instead, they serve the interests of the “big guys” in each scene. In case of copyright, this means the “copyright industries” — record labels, movie studios, “old school” software companies, publishing houses, etc. In case of privacy, this means the institutions who are the biggest processors of personal information today — national, state, and local governments as well as banks, insurance companies, telecoms and utilities.
The laws in both of these areas stem from societies where there were clear natural borders between authors/publishers/performers and audience/customers/”pirates”, as well as between processors and subjects of personal data. While it has been possible for private individuals to reproduce various works for their personal use, mass distribution was limited to a select few due to its capital-intensity. The same applies to processing of personal information — “normal people” just didn’t have the means to build a database containing information about more people than, say, their high school classmates.
Broadband internet, file sharing, cloud computing, and social networks have changed the game by enabling just about anybody to do things that only governments, corporations, and very few rich and motivated individuals could afford to do do a mere two decades ago. But the regulators have failed to update copyright and privacy laws so that they would reflect the new status quo.
The question is “why?”.
One possible reason is the ever-increasing inertia of the legal system. Individual countries have less and less room to decide what kind of laws to introduce. Members of the European Union have to follow the EU directives which cover both copyright and privacy. But there’s more — various multilateral, or, occasionally, bilateral, international agreements are in place that no single country can simply toss aside and still hope to be considered a “civilised” member of the international communities.
Another possibility is that those entities who have enjoyed the natural near-monopolies in the past actively use their accumulated wealth and power to lobby the legislators into introducing laws that would keep the rules of the game from changing as long as possible.
But most probably, the real reason is a combination of these factors, and possibly a few others as well. Clearly, our legal systems’ failure to adapt to the changing reality is not in the best interests of individuals, small enterprises, and the society as a whole.
The old power centres are dissolving. If anyone can publish and republish, no publisher can extort more than reasonable money out of the audience. If anyone can gather, analyse, share, and remix everybody else’s electronic traces, then it would be much harder for anybody to blackmail anyone, or set up some kind of a police state.
Sure, there will be people who use others’ works without compensating the authors or contributing back to the commons pool. Sure, there will be people who try to thrive on the “juicy” details of the lives of some high-profile individuals.
But I don’t think we should punish the entire society for the acts of a few ill-minded individuals — and certainly not in a way that perpetualises the establishment.