Privacy discussion with Hagemann Continued: Citizens Spying on Each Other

Links to articles in the present discussion, in order from least to most recent:

Original article by Hagemann

My first response

Hagemann’s response

 

Continuing a conversation about the right to privacy with the Niskanen Center’s Ryan Hagemann, I want to discuss the particular issue of privacy violations in interpersonal interactions; that is, between citizens, not involving corporate or state violators. I think this is an important topic for two reasons:

(1) Understanding what constitutes a privacy violation in an everyday person-to-person context gives more relatable grounding to controversies regarding privacy in relation to complex systems and institutions.

(2) This topic provides an opportunity to examine the curious feature of privacy violations, by individuals and by the state, that their harm lies in the subjective experience of the violated party, and thus only in their discovery.

 

Agreement and Disagreement

In summary, so far, Hagemann and I have agreed that, at least in the modern Western political context, people share an appreciation for the intrinsic–as opposed to merely the instrumental–value of privacy. We agree that this conception of privacy as something intrinsically valuable is adequately described as “freedom from accusatory observation”.  While people desire privacy for a variety of instrumental reasons, this particular understanding of the intrinsic value of privacy best explains several important modern controversies involving privacy violations by the government. The two I have discussed most at length are the controversies surrounding spying by the NSA and the overpolicing of housing projects.

We disagree about the scope of application of this conception of the intrinsic value of privacy, in particular about whether it applies to typical cases of privacy violations of one citizen by another. Hagemann has argued the need for

a tripartite contextual distinction for conceptualizing privacy based on possible harms that may result from violations: harms that result from invasions of privacy by (1) government, (2) corporations, and (3) individuals. Each of these actors have substantially different harms associated with their violation of individual privacy, and each will accordingly warrant varying degrees of control.

I  argue for closing the gap a bit between (1) and (3). I disagree that the nature of the harm in violations of privacy, on the one hand, by the state, and on the other, by individuals, is necessarily different, even if it is the case that different sanctions are appropriate in the two types of cases.  Privacy as “freedom from accusatory observation” does apply to two different common cases of privacy violations by citizens against other citizens, one contemporary and one relatively timeless. These are the cases of violations of “safe spaces,” as defined in this generation’s left-wing university culture, and of intrusions by voyeurs.

 

Safe Spaces

The purpose of “safe spaces,” used properly, is to protect people from the judgement of others while they are exploring sensitive or controversial aspects of their identities. Someone coming out of the closet, to name one example, often needs privacy because she lacks the confidence to discuss her explorations with strangers, particularly with strangers who lack the personal experiences necessary to understand the complexity of the explorations in question, and who may thus cause harm via ignorant judgement.

For this reason, modern universities tend to have institutions such as Queer Resource Centers or Black Students’ Associations, whose purpose is to provide a private space where people with similar experiences, usually uncommon or marginalized experiences, can discuss them away from the judgmental scrutiny of the public. Sometimes the term “safe space” does not refer to a physical location, but rather to an event or an institutional setting, such as a presentation, or a workplace or classroom environment. The justification for establishing such spaces is that the people who need them have lived under constant judgment in their place of birth, in their younger school years, or in society at large, and thus need a common space designed to be free of scrutiny.

Violations of safe spaces are said to occur when an uninvited, unsympathetic outsider judges the atypical, or non-normative experiences of someone said to be in need of a safe space for the reasons mentioned above. Such a violation is exemplified by, for example, intruding on a private meeting for people discussing their emergent sexual identities in order to counsel repentance or otherwise loudly proclaim one’s opinion, or publishing the names and statements of students attending such a meeting. Provided that the safe space in question is reasonably expected to be a closed space, event, or setting, or that the topic of discussion is one of personal rather than public relevance, the practice of securing and defending such a space seems worthwhile and defensible. It should be perhaps no more controversial than seeking a “safe space” with a psychologist behind closed doors.

There is a similarity between this case of privacy violation and the two others I have mentioned: the overpolicing of public housing projects and NSA spying. All of these cases involve the experience of accusatory observation–that is, the experience of having the moral or legal status of one’s behavior evaluated by a stranger. In the case of “Stop and Frisk”, residents of apartment buildings experience the watchful eyes of police suspiciously scanning for violations of petty offenses, and are made to feel  implied accusation of some inherent criminal or socially deviant tendencies. In case of NSA spying, victims of dragnet surveillance live with the justifiable fear that their personal communications about sensitive religious, political, or strictly personal matters are being scrutinized for suggestions of criminality.

The example of safe spaces suggests that the experience of having one’s privacy violated by another citizen can, in at least some circumstances, be similar enough to that of a government violation of privacy that there is no justification for insisting on completely separate moral categories for governmental and non-governmental privacy violations. To the contrary, empathizing with the experience of having a “safe space” violated can lead to a more concrete understanding of the moral problems with dragnet collection of metadata by the NSA.

The America legal tradition invokes the right to privacy in both contexts. The earliest mention of such a right in U.S. jurisprudence, and arguably the concept’s most systematic treatment since, was in a monumental paper by Justice Brandeis called “The Right to Privacy”, authored before his famous dissent in Olmstead v. United States, which employed much of the same logic as the article. While the paper was motivated by concerns about popular gossip, the Olmstead case concerned government wiretapping of private telephone conversations. And voyeurism statutes in some states, such as Ohio, Louisiana, and Delaware, contain explicit mentions of a right to privacy as well.

Such continuity in American jurisprudence does not itself demonstrate a philosophical similarity between privacy in these two contexts. It does, however, suggest the potential relevance to jurisprudence of such a connection established on independent grounds.

 

Voyeurism

I argued in my last post that the experience of oppression by accusatory observers centrally involves shame. People feel shame about a variety of things–their bodies, their beliefs, their habits–and can be justified or unjustified in their shame. That shame can be unjustified, merely an unconscious tendency, is crucially ignored by many people who trivialize the importance of privacy protections. As I said in my last post:

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.

I would argue, as a human person and a product of Western society, that my choice to be clothed in public at all times regardless of weather is due at least partly to shame about my body. This taboo is not shared by all cultures in all time periods. It is also not universal among people of all ages in our own culture: at some point between infancy and adulthood, the superego imposed by society tends to drive an American to be ashamed to be naked in public. In fact, not all Western adults feel such shame–such is the point of the nudist subculture, within which voyeurism as an act of harm is a practical impossibility. Thus, while it is implausible to say that a peeping Tom is implying an accusation by watching you, it is not so implausible to presume that you would feel guilt on an unconscious level upon discovering that you had been watched. The harm, in this view, is in the feeling in the victim upon discovering that he has been observed doing something he believes that he should be ashamed of.

The matter is ultimately not this simple. One might also feel, upon discovering that one has been watched in this way, a sense of insecurity and violated trust not simply reducible to shame. Furthermore, the two political examples we have been discussing–NSA spying and overpolicing of housing projects–involve specifically the experience of being continuously spied on while being continuously aware of said surveillance. In the case of voyeurism, for this analysis to apply, voyeurism would have to be ongoing and the victim would have to be somewhat powerless to stop it, for example, because illicitly obtained surveillance footage has been already made widely available.

 

The Conundrum of Undiscovered Surveillance

While my previous political examples have involved the oppression experienced under ongoing surveillance of which the subject is aware, the chronology of surveillance-induced harm is not always concurrent; harm can be done after surveillance is already over. Imagine the psychological disturbance that would result upon discovering that your next door neighbor has been videotaping you for years, or for that matter, that the government has been doing so, but that the offender has stopped. This may be worth further exploration: is this a different sort of violation?

And here is a harder conundrum: what is the harm in surveillance that is never discovered? Imagine that your next door neighbor videotapes you from her apartment, stores the footage, and preserves it merely for her own, private, purposes. Your physical property is not violated, the footage is never used for blackmail or any other harmful secondary purpose, and neither you nor any third party ever discovers the footage. If this is a victimizing crime, it is a unique one, because it causes neither physical nor psychological harm to the violated party.

The fact that a voyeur is caught obviously presupposes that the victim is aware of their surveillance. But as a thought experiment, this poses a puzzling challenge to our assumptions about privacy: is privacy analogous to other rights, such as that of speech and assembly, in that there is an  autonomous space that can be objectively violated? Or is privacy rather the name for the psychological experience of feeling that one is not being evaluated by strangers? Presumably, this would entail that the intensity of the same privacy violation can vary with the subjective features of the victim, even if the nature of the intrinsic harm of the violation can be described in the same terms.

Imagine an analogous political example: a government that collects vast records of the details of its subjects’ lives–telephone conversations, e-mails, video recordings of citizens in their bedrooms and bathrooms, but never uses any of this information in criminal prosecutions or otherwise reveals this material to anyone but a small group of officers tasked with collecting it. Actually-existing governments exhibit all of the incompetencies of human beings, and thus often fail to keep such programs secret. Furthermore, due to systemic weaknesses in law enforcement, at least some of such secretly collected information can be expected to be used eventually in an unwarranted criminal prosecution. For this reason, the likelihood of harm accompanying discovery–in the intrinsic oppression of ongoing accusatory observation, or in a subsequent harm such as criminal prosecution–may be sufficient to justify restrictions on state surveillance. But in the thought experiment of undiscovered state surveillance, such a danger is non-existent. Why, if at all, is surveillance morally wrong, in itself? This thought experiment may bring us closer to the heart of the problem with surveillance, or it may lead us to the surprising conclusion that surveillance is not inherently wrong.

 

I look forward to further discussion, of the significance of connections between interpersonal and governmental privacy violations, of the conundrums of past surveillance and undiscovered surveillance, and of any further issues inspired by the flow of the conversation thus far.