What does it mean to give up privacy? Adam Cohen wrote last week in the NY Times about the demise of “locational privacy”: your right – presumably it’s a “right” – to keep a lid on who knows where you are. Cohen’s onto something bigger than just a rant against modern technology. The problem with modern technology is that we tend to like modern technology!

I watched the great television show “Madmen” last week, about life in a Madison Avenue advertising shop in the early 1960s. No cell phones, no computers, no electronic building entry devices assigned to individual users, no EZ Passes, and probably very few credit cards. Ad man Don Draper visits his various mistresses without concern that his wife might try to reach him on his cell phone. Or for that matter, as Cohen writes, any worry that he might simply be lugging around his own personal tracking device: “If your phone is on, even if you are not on a call, you may be able to be found (and perhaps picked up) at any hour of the day or night.”

My take is that mainstream privacy advocates do not condone secrecy or infidelity, and it isn’t altogether (or even mostly) a bad thing to have the benefits of EZ Pass when traveling on the New York Thruway on Labor Day Weekend. (I really do assume that it is laziness and not any particular privacy concern that explains why you still see – 10+ years after the introduction of EZ Pass – the pervasive non-adoption of this simple technology at the snaking tollbooth lines on weekend afternoons. But I digress.)

I frankly don’t care if Bed Bath & Bea Arthur wants to have my zip code every time I buy a salad shooter. I don’t want to give it to them more out of annoyance with the over-corporatization of American consumer-dom, where you can’t buy a magazine at Barnes & Noble without dodging a series of treacherous questions:

Q: Are you a Barnes & Noble member?
A: No.
Q: Would you like to become a Barnes & Noble member?
A: Why?
Q: You’ll get 10% off all purchases.
A: No.
Q: Is that all that you need today?
A: No, I’d like a milkshake and fries.

Always makes me think of that scene from Seinfeld where Kramer is in the psychiatrist’s office, and the psychiatrist asks him if he’d like anything to drink. Kramer asks for a double decaf latte.

Actually, it’s annoying – and that’s really the better word for it rather than “intrusive” – to be constantly solicited, poked, prodded, sized-up, surveyed, weighed and queried every time we want to buy a cup of coffee. The Wall Street Journal recently mused (somewhat tongue in cheek) about the newly and weirdly alarming trend of foot-long and longer paper receipts given out by CVS, Wal-Mart and other major retailers for even the simplest of transactions like buying a pack of gum. It would be kind of neat to get your daily dose of Talmudic wisdom on that scroll, but I don’t think that’s the intent.

Identity theft is a real and serious problem, and I worry that even my vigilant use of paper shredders and refusal to give up my social security number will fail to protect me from a Department of Homeland Security manager leaving his laptop on a Metro bus with its 2 billion entries on credit cards and other personally identifying information.

But it strikes me that identity theft is but a secondary reason for the alarm of self-described “privacy advocates” at technology’s accreting accumulation of data. Earlier this summer here in Washington, we hosted a Media Future Now panel discussing data ownership issues in advertising. Lee Brenner of FastFWD Group and formerly Political Director of MySpace pointed out that it’s really not that hard to find someone’s social security number, and our spending so much time protecting its sanctity is probably not time well-spent. That may be true, but that doesn’t mean we need to help make it easier to find.

And that’s really the point. In a classic law review article and later again in a famous Supreme Court dissent, Justice Louis Brandeis long ago described the simple principle and right of Americans, established by the Constitution, “to be let alone”: “The makers of our Constitution … conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. U.S. (1928) (dissenting).

This is obviously not a new concept in American law or American society, albeit one whose champions have not always been in ascendance. But it is this sense of “privacy” as a default rather than a right to be acquired or whose loss need be guarded against that is overlooked. Governments and businesses seek to acquire – or just simply acquire – reams of data about citizens and consumers, but what for? Modern conveniences require the giving up of this data. (Again, Adam Cohen in the NY Times: “[S]o much of it is a side-effect of technology that people like. Drivers love E-ZPasses. G.P.S. enables all sorts of cool smart phone applications, from driving directions and find-a-nearby-restaurant features to the ever-popular “Take Me to My Car.””)

Police departments have used public transportation cards to track criminal activity, and EZ Pass and cell phone data can be accessed similarly. However, I suspect that Brandeis’ vision of privacy in America is less concerned with this aspect of Big Brother than that of the more common intrusions of daily life: The right to live with minimal intrusion into personal seclusion (minimal perhaps being modernized to grant certain allowances for modern conveniences); the right not to be bothered on the street, on the telephone, in your home; the right to be able to access the public space, use the internet and social media, all without giving up all expectations of privacy.

More on this to come.