Photo by Kalakalaferry – Own work, CC BY-SA 4.0, Link
The current health crisis has brought home in a dramatic way the benefits and perils of transformative technologies. Donald G. McNeil Jr. reports that a health company has been able to use temperature readings from its electronic thermometers to assess the effectiveness of stay at home orders and other measures, days before assessments by health officials using more traditional methods. Yet, others point out that the use of location data to track movements and assess compliance with government orders has also raised privacy concerns.
At such a time, it seems fitting to consider legislative attempts to strike a balance between enabling the beneficial use of data with the expectations people have of their privacy. The most prominent laws in this area are the EU General Data Protection Regulation and the California Consumer Privacy Act. Other states are considering similar legislation, but passage is not certain. For the second year, Washington state, home to major tech companies, has considered but been unable to pass data protection legislation.
Like the GDPR and CCPA, the proposed Washington Data Protection Act would have required data controllers to allow consumers to access, correct, delete, and transfer personal data. Consumers would also have been able to opt out of the processing of personal data for targeted advertising, for the sale of data, or for profiling in connection with decisions that would have legal or other significant effects on them. State Senate and House versions of the bill made it out of their respective chambers, but it is reported the two houses failed to reach agreement on the enforcement mechanisms for the legislation.
Interview with Reuven Carlyle
State Senator Reuven Carlyle, a co-sponsor of the Senate version of the act, has been quite open about his Jewish faith. He took the time during this unprecedented crisis to discuss over the telephone how his faith tradition frames his understanding of privacy, a person’s right to their data, and his job as a legislator. I discuss Senator Carlyle’s remarks under the questions that guided our conversation.
1. For readers who might not be familiar with the legislation, what are the main features of SB 6281?
Senator Carlyle responded that general information about the legislation is available to the public. For him, the primary purpose of the proposed act is to affirm in an era of large firms and other institutions, the fundamental rights that individuals have to their data, among other things, the right to access, control, and modify that data. Just as genealogy companies such as Ancestry give users the right to opt out of the sale of data about them, so too all companies should give the public the same level of control over what he calls high value data.
2. In what ways does your faith tradition inform your understanding of privacy, why it should be valued and protected, and how privacy is or should be balanced with other concerns?
Senator Carlyle affirmed that he is deeply informed by the Jewish faith and shared that his understanding of privacy comes from his tradition’s view of the human person. The Torah and Talmudic teaching causes him to value individual responsibility, such that an individual’s rights are balanced together with those of the greater society. Indeed, part of what makes us human is being a part of a larger community.
At the same time, the Jewish tradition also values the individual as such. Senator Carlyle quoted the saying that it is better to let 100 guilty people go free than to condemn one innocent person. Thus, his faith tradition teaches him that although society has legitimate ends, civil society has a responsibility to the individual who is endangered. The implication is that when it comes to a society’s needs, the default to goes to the person. For him, it is not a patronizing view of protecting the weak; rather it is a view that every person is valued.
Senator Carlyle believes that privacy legislation implements these strands of the tradition. Even though most individuals are unaware of it, our individual data are in his words, “the DNA of our value,” which I take to mean value that has economic aspects. Privacy is woven into how we live our lives. Without privacy, we allow this value to permeate every sector without our knowledge. In Senator Carlyle’s view, most people observe the pervasive use of data as they would an iceberg. We of course are aware to some extent of how data about us are being used. However, most people do not fully appreciate that below the surface, there is an entire, robust system of value at play, whose currency is the data about us. It is not that this is inherently wrong or without its benefits; rather, there is a moral responsibility to know about it.
3. In what ways does it inform your understanding of rights individuals might or might not have over data produced by them and the information that can derived from that data?
Based on his earlier comments, Senator Carlyle thus believes that individuals have rights to their data. He reiterates that the public does gain value from the use of data. For him, the evil is a lack of transparency and voice, particularly for individuals, that would enable a radical transformation of the ecosystem of technology and data and give people the power to make individual choices.
4. As a legislator, you contend with competing demands by people, groups, and firms that will be affected by the law. How does your faith tradition sustain and inform you as you engage in this work?
As discussed above, for Senator Carlyle, a principle of the Jewish tradition is that finding our role as individuals in a society is part of what makes us fully human. At the same time, it is better to let 100 guilty people go free than to punish one innocent person. Thus, there is always spectrum in the way in which various societies emphasize the needs of the individual or the collective. For Senator Carlyle though, the Jewish tradition affirms debate as part of the fabric of the human condition and does not condemn it. He points out that the name Israel means to wrestle with God. Abraham bargained with God to try to prevent the destruction of Sodom and Gomorrah. He agreed with my observation that the Talmud preserves the debates between rabbinic scholars over the ‘correct’ interpretation of various passages of the Hebrew Scriptures without resolving those debates. For him, the very fact that the Talmud leaves those debates fully elaborated yet unresolved is the joy and beauty of it.
For Senator Carlyle, the implication for politics is that there will always be intellectual and moral debate over pressing issues. With respect to technology, the Jewish tradition of acknowledging that there will always be an ongoing inquiry into ultimate matters allows him to put down his weight in the moral debate around technology that he sees taking place in the legislative process. It allows him to question authority while embracing data and science. Concluding with a theme with which he began his remarks, individuals have an obligation to understand this debate. The legislation is designed to enable them to gain this understanding.
