Response to Ryan Hagemann’s “How We Think About Privacy Matters”

This week, the Niskanen Center posted a piece on privacy by Ryan Hagemann, the staff expert on privacy issues, titled “How We Think About Privacy Matters.” My views are in larger part compatible with than opposed to his, but I hope to respond to some of the questions he has raised and to take the inquiry he has initiated in a particular direction. It would be best to read Hagemann’s article before reading this post.

For further development of and context for my thoughts, please see my recent article on the subject, available in both print and online form.

Hagemann’s article has three main virtues, in my opinion:

1) It captures the uniqueness, and thus the mysteriousness, of the right to privacy among other rights essential to liberal democracy. The right to privacy is mysterious, in the first place, because it does not share with other, more familiar classical liberal freedoms–the right to assemble, the right to practice religion, the right against arbitrary detention–a moral foundation in the right against coercion. In Anglo-American politics, we are used to debating what the government should be able to force people to do, and what it should not be able to force people to do. But the right to privacy is not about force–one can observe you without telling you what to do or what not to do. Figuring out the moral foundations of this right is a puzzling task that requires thinking outside of the philosophical habits predominant in Western politics.

In the second place, the right to privacy is mysterious because it has unclear boundaries, the demarcation of which is difficult without an idea of the moral foundations of the right; and visa versa–it is hard to know what makes claims to privacy politically legitimate without knowing what constitutes the private sphere.

2) Hagemann’s article seeks common moral ground among typical demands for privacy, against the government, against corporations, and against other individual citizens: that privacy violations by the NSA, Facebook, and a peeping Tom do have something in common is suggested by popular use of the same word to describe all three situations.  Seeking similarities among these cases helps cohere everyday moral judgements, in our interactions with other individuals, with judgements about our interactions with complex systems, which gives more intuitive and thus more plausible grounding to the latter.

3) The article nevertheless makes distinctions between the significance of privacy in these three spheres. Privacy violations by Peeping Toms, Facebook, and the NSA do not have everything in common. They do not pose identical dangers; and they do not call for identical legal responses.

My perspective diverges from the author in the following way:

I don’t believe that the meaning and importance of privacy is subjective–that within the Western democratic political context, different individuals have different realities in mind when they speak of privacy, and that technological change tends to alter our conceptions of privacy. Or, rather, I agree that people can find privacy instrumentally valuable for different ends, and that these instrumental purposes can change over time, but I also believe that citizens of Western democracies share a certain conception of the intrinsic value of privacy, which is relatively permanent and is derived from the common historical experience of totalitarianism.

I think that we find privacy, understood as freedom from accusatory observation, to be valuable in itself, and that this is evident in widely shared judgments about our relationships with government, corporations, and individuals. This conception of the intrinsic value of privacy (1) helps establish a common moral foundation for disparate instances of claims to privacy, and in doing so helps elucidate the proper boundaries of the private sphere; and (2) explains the similarities as well as the differences between the applications of privacy in the three relationships mentioned.

Instrumental Purposes of Privacy

What particular purposes people have for privacy can vary with both personal and technological circumstances. An adult with career interests at stake may have more of an interest in restricting viewership of her social media activity than an unemployed minor. Someone engaged in a line of work where she is at risk of violence from former associates or clients, such as a prison guard, may wish for more thorough concealment of her contact information than the average citizen. A career criminal may want his finances to be extraordinarily opaque to the government, so that he can continue his business uninterrupted. In these cases, privacy is desired as a means to a variety of further ends. In some situations, privacy has only instrumental value.

As technology advances, certain purposes for privacy may become impossible and thus lose their appeal. In the era of the earliest American jurisprudence regarding privacy, there was much controversy over tabloids taking photographs in public, of public figures doing things that they would prefer not to be photographed or reported on, mainly for reasons of reputation. In an era of lightweight, affordable cameras, television, and internet, preventing such a thing is inconceivable; as a result, the expectation of and demand for freedom from public supervision for public figures, has largely vanished.

In my view, the observation that the content of the concept of privacy changes with personal and technological circumstances is a misinterpretation of the fact that people have myriad external purposes for privacy. There is, however, a common conception in our culture of the intrinsic value of freedom from a certain type of observation.

The Intrinsic Value of Privacy, Understood as Freedom from Accusatory Observation

The right to privacy is different from other rights prominent in the Anglo-American political tradition, because it is not fundamentally about coercion.

People feel an intuitive repulsion toward being observed in an accusatory way, as something theoretically distinct from being coerced. By this I mean that we do not like being watched by someone whose purpose is to deliberate on the moral or legal status of our behavior. And this only partly because we worry about the sanction that will follow; the observation is itself oppressive. In the case of the state–it is true that state observation often either follows on the coattails of coercion (prisons closely observing the behavior of citizens arrested for nonviolent drug offenses), or leads to coercion (the state using information obtained through surveillance to imprison people providing indirect support to ideological enemies of the government). However, state coercion and state observation are still two different phenomena.

Not all cases of accusatory state observation are at the same time cases of coercion. If the police loiter in or near the lobby of a state-run apartment complex, as in the notorious “Stop-and Frisk” zones of various American cities, causing residents to feel that their behavior is constantly being evaluated, this is not in itself coercion against residents, even if such observation may sometimes be accompanied by actual coercion. If the police catch numerous legally irrelevant personal online conversations in an indiscriminate dragnet, people may feel uncomfortable that their sensitive explorations pertaining to religion or sexuality, for example, are being monitored by anonymous agents for legal violations. The importance of privacy protections is in preventing this experience as much as preventing prosecutions based on unwarranted searches.

Furthermore, not all cases of such objectionable observation by non-state actors, are simultaneously coercive. A peeping Tom does not coerce his victims; nor do bigots who gawk at same-sex couples or at individuals of a different race or gender expression. The controversial practice of “safe spaces” on college campuses is, at its best, also fundamentally about privacy: individuals who are engaged in the sensitive task of coming to terms with their identity, whether in its sexual, racial, or other aspect, do not want to submit the details of their personal journey to public inspection and debate within their university. Using the law to address all of these cases would be totalitarian and also ultimately impossible. Cases like these are often best addressed through social pressure, which is the main tactic of what we sometimes call the “PC” movement.

Opposition to this type of watchfulness is fundamentally about shame: we don’t want to be judged by strangers. We feel shame about our bodies, about some of our personal beliefs, about cultural practices that differ from those of the majority, and about many other aspects of the way we live within the security of our personal space or the space of a family or close-knit community to which we belong.

This point is not to be confused with the common criticism of privacy rights that those who are doing nothing wrong need not be concerned with privacy protections. This is the opinion, for instance of the legal theorist and 7th Circuit Court of Appeals Judge, Richard Posner. The truth is that anyone who thinks he is doing something wrong, on either a conscious or unconscious level, has reason to be concerned with political privacy. Almost everyone feels shame. But the fact that a person is ashamed of some aspect of her life does not necessarily mean that she has done anything morally wrong, and it certainly does not mean that she has violated the law.

In the case of corporate observation for advertisement purposes, I largely agree with Hagemann. Some corporate surveillance is not objectionable because it is conducted with indifference to the rightness or wrongness of our behavior–it is simply conducted in an attempt to determine what to sell us. I may have a variety of instrumental reasons for wanting privacy in this area, but a fear of judgement is not one of them: advertisers will happily sell me anything, good or bad, that I seem to want. This is fundamentally an issue of consent: social media companies, for example, must offer explicit contracts regarding the types of information they may collect and share.

The greatest concern with corporate surveillance is that these companies enter into cooperative partnerships with the state that involve giving easy access to our private information for warantless legal investigations. A large majority of Americans in fact believe that major technology companies have a responsibility to stand between citizens and the government in this context.

The Root Causes of Encroachments on Privacy and of our Fear at This Trend

In relation to the government, my view is that privacy thrives in the absence of law. This distinguishes the right to privacy from traditional liberal rights. The right to procedural justice in criminal prosecution, for example, is secured through a system of laws that ensure a fair and efficient trial; it is ensured by the vigilance of the state. Freedom of speech is secured through laws delimiting legitimate, peaceful speech, and defining the responsibilities of government and citizens toward dissenting individuals. This involves not just constitutional checks on executive power, but other legal guarantees as well, such as police protection for unpopular protesters or publishers.

Privacy, by contrast, thrives largely as a result of the indifference or incompetence of the state. In fact, a political orientation against state observation in some contexts clashes with a traditional rights-based worldview, because, at least in theory, the more closely the state observes its subjects with an eye to preventing coercion, the more precisely it can protect against rights violations by foreign and domestic aggressors. This conflict is nowhere more evident than in the case of citizenship itself: the undocumented immigrant, in contrast to the registered citizen, lives an utterly anonymous, under-the-radar existence, but cannot safely appeal to the state for protection or enforcement of contracts.

The erosion of privacy is the result of the rise of the modern bureaucratic state. Part of the emergence of politically centralized nation states and modern economies was a movement towards standardized and precisely enforced legal codes. This was accompanied by an attempt toward what political scientist James C. Scott has called legibility: the state-imposed regularity and visibility of people and places that permit the efficient administration of bureaucratic tasks. Phenomena like social security numbers, government identification cards, and numbered streets laid out in grids are all examples of commonplace and often non-harmful instruments of legibility in modern democracies.

Both totalitarianism and modern liberal democracy are manifestations of the centralized bureaucratization that essentially characterizes modern politics. Modern democracy seeks the consistent and thorough enforcement of laws ensuring equality and fairness. Totalitarianism is characterized by the overabundance of law enforcement in the details of citizens’ lives, and the excessive visibility of theses details to the state. Communist and Fascist societies policed the details of people’s lives usually with the expressed intention of enforcing equality or consensus. Thus, in a sense, totalitarianism is an extreme to which a society with a modern bureaucratic democracy is prone, as opposed to its political opposite.

In medieval society, by contrast, the state regulated families or fiefdoms as a whole, often leaving the details of administration to custom or other local arrangements. Sovereigns had an interest in opposing anyone who conspicuously challenged their power, but did not derive legitimacy from careful administration of a standardized legal code. Thus, the presence of the sovereign in society was much more intermittent than in modern states.

Many poor countries are still like this. One particular example may give this generalization concrete demonstration. I work in Vietnam, and many nights I purchase food from a certain vendor who sells pork out of a welding shop, which is in turn attached to her house. During the day, she welds, and at night, she cooks a large vat of meat in the kitchen behind the welding shop and sells it on the floor of the shop, handling only cash and keeping no records. Residents of the city are assured of the consistent quality and cleanliness of the product through word of mouth. Needless to say, homey and convenient businesses like this are unheard of anywhere near the center of any major city in a wealthy Western country.

In addition to economic freedom, she also experiences what I call privacy. In order for this business to happen, a profound lack of interest in the particulars of this woman’s life is required on the part of the state. Her lack of distinction between commercial and residential property, as well as the informal, cash-only nature of the business, are possible because tax collection is intermittent in Vietnam: you pay taxes when and if the police become motivated to collect, which might be never in the case of a small enough business. And the sale of food in an industrial shop is made possible by a lack of health regulations: no health inspector has ever examined, let alone censured her shop. The government is either unaware of or indifferent about what she sells, where she sells it, and how much money she earns or pays in taxes. Apparently, no authority judges her economic life to any significant degree.

Of course, in Vietnam, freedom like this only exists in scattered contexts. The Vietnamese lack various traditional liberal freedoms essential to democratic citizenship, such as voting rights and freedom of expression, guaranteed through methodically enforced law in Western states. But one can criticize the latter while learning from the former aspect of Vietnamese culture; and one can adopt an analogous attitude toward what is simplistically termed “development”.

Many areas of our lives in wealthy Western nations are less private because our political institutions are more efficient and competent, and because our political culture places an emphasis on bureaucratic efficiency and consistency in the enforcement of laws. When we look back on the norms of feudalism, or look down on undeveloped countries, we tend to glorify this transition. And we are mostly correct in doing so: it is a necessary and largely positive transition. But it ushers in a political culture which has the novel flaw of threatening the total erasure of privacy.

The Legal Implications of the Conception of the Right to Privacy as Freedom from Accusatory Observation

All people need spheres of their lives that are invisible to the state; the commonness and scope of such spaces determines where a society lies on a spectrum between, on the one hand, merely efficient and effective modern government, and on the other, totalitarianism.

We may, in this particular area, have something to learn from pre-modern government. While protections like the Fourth Amendment to U.S. constitution are indispensable preventative measures against the uncontrollable and unlimited expansion of legal authority into a variety of private realms, the U.S. constitution, and indeed law itself, may not be the only or even the most important tools in protecting privacy.

There is no explicit guarantee of a right to privacy in the United States Constitution, which itself hints at the inadequacy of the Anglo-Saxon, liberty-oriented political tradition in this respect. In contemporary jurisprudence, the right to privacy is regarded in some contexts as a substantive due process right—a non-procedural liberty that is supposed to be constitutionally protected despite not being enumerated in the Constitution. This modern way of handling the right to privacy both implicitly concedes the absence of a generalized right to privacy in the thoughts of the framers and leaves the right to privacy essentially undefined. Historically, this right has only been artificially inserted through creative constitutional interpretation within the last century, and has been defined, when at all, without recognition of the separateness of freedom from observation and freedom from coercion.

In the course of his famous criticism of the legal movement to inscribe a generalized legal right to privacy between the lines in the Constitution, Robert Bork concluded that the only coherent interpretation of these legal arguments was that they sought, accidentally, to establish the principle of a general right “to be free of regulation by law.” And it is impossible, he argued, that the Constitution would stipulate, through law, a right to be free of law.

I believe that this is true, perhaps in a different sense than he intended. The best way to ensure privacy may be a de facto lessening of enforcement of existing laws, accompanied by a restraint in the formation of new laws, and an effort to eliminate extraneous old laws. In the manner of pre-modern government, the state should exercise restraint in its attentiveness to certain areas of citizens’ lives. This may be accomplished by the election of the right representatives, who will, for example, constrain the funding and jurisdiction of certain bureaucratic bodies, such as the NSA, or perhaps abolish them. Public representatives may also redirect police resources in such a way as to de-prioritize the enforcement of minor offenses that absorb most of law enforcement’s energy in urban neighborhoods. Some of these minor, nonviolent offenses, such as drug possession, may not be worth having on the books at all.

Also important, in the context of the internet, is citizen initiative to attain anonymity. For those equally non-tech savvy as myself, here is a guide.

The question of the proper boundaries of privacy may not have a simple, categorical answer. Privacy should be thought of as something that should exist in zones that people can retreat to in selected areas of everyday life, as a relief from their otherwise thoroughly regulated existence. Privacy by its very nature must be intermittent rather than consistent. Consistent privacy would amount to, in Bork’s words, a freedom from law altogether. Securing the right proportion of privacy and state efficiency is probably an art, requiring judgements on a case-by-case basis. The more essential some zone is to the conduct of a typical day, and the less worthwhile is the law enforcement effort, the more opaque that zone should be to the state.

 

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