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.

 

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.