July 25, 2016

What Does Privacy Mean?



In “How We Think About Privacy Matters,” I teed up some general thoughts on how we could, and should, start reframing our perspective on privacy. In response, Julio Rodman fleshed out his own perspective in a recent blog post. In large part, I agree with his assessment of privacy. In particular, his piece contains a few strands of thought I want to examine in more detail:

  1. The fundamental element of a right to privacy from state surveillance is “freedom from accusatory observation.”
  2. Depending on the context, privacy has either instrumental or intrinsic value.
  3. The nature of modern society necessitates privacy be intermittent, not consistent.

I’ll offer my thoughts on each of these points, followed by a thought on how developing a hierarchy of privacy expectations may be more suited to an appropriate framework for thinking about privacy.

The fundamental element of a right to privacy from state surveillance is “freedom from accusatory observation.”

Julio discusses how the right to privacy differs from other fundamental rights in that coercion is not the main issue in question. Rather, as he correctly points out, the issue of an institution (the state or corporate actors) invading our privacy rests on a premise that people feel “an intuitive repulsion toward being observed in an accusatory way, as something theoretically distinct from being coerced.” This is the idea that our privacy rights in relation to the state is simply “freedom from accusatory observation.”

Of course, this definition is only useful when examining the relationship between the citizen and government. While we have an expectation of being relatively free from accusatory observations by the intelligence and law enforcement communities, our expectations of privacy from other individuals’ prying eyes are more robust. Such expectations do not rely exclusively on a freedom from being observed in an accusatory manner. A peeping tom, for instance, is not observing in an accusatory manner, yet we would nonetheless expect that the precincts of our private lives be free from such unwanted and unwarranted observations. More on this later.

While coercion and state surveillance are are circuitously linked—one often feeding into the other—they are nonetheless distinct in important ways. As Julio notes:

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.

These distinctions are important. Being observed in an accusatory manner too often can quickly become an intimidating experience for citizens. While there are certainly valid reasons for state observation and identification of citizens (discussed later), the important takeaway here is simply that surveillance in and of itself does not constitute coercion, nor does is it necessarily a violation of our right to privacy. Instead, it is more appropriate to delineate our privacy rights as constituting a certain freedom to maneuver out of sight. In particular, our right to privacy hinges on the ability to avoid the gaze of those who would presume to supervise our actions in an incriminating and accusatory manner.

This leads to an interesting question: if citizens’ privacy rights vis-a-vis state surveillance is freedom from accusatory observation, is the right to privacy valuable as an end in itself, or merely as a means to some greater end?

Depending on the context, privacy has either instrumental or intrinsic value.

In certain situations, privacy is simply a means to an end. It has value as an instrument to achieve a particular objective, or satisfy a particular desire. If I’m a journalist, I value privacy as an instrument to preserve the confidentiality, and in some cases the lives, of my sources. A dissident living under a repressive regime also values his or her privacy as a means to protect their life when communicating with others who share a sense of indignation at the state’s curtailment of fundamental civil liberties. In many situations, privacy is an indispensable tool for protecting people’s very lives.

In other situations, however, privacy can be viewed as a fundamental value—valuable not because of its ability to achieve a particular outcome, but valuable for its own sake. As Julio correctly notes, citizens in democratic societies “share a certain conception of the intrinsic value of privacy, which is relatively permanent and is derived from the common historical experience of totalitarianism.”

If we accept that the “relatively permanent” intrinsic value of privacy is more generally defined as “freedom from accusatory observation,” I think this makes sense. The less free we are to withdraw from state surveillance, the more likely our society is situated somewhere closer to totalitarianism than participatory democracy. Of course, “accusatory observation” is, like “privacy,” still a somewhat elusive term to nail down. Nonetheless, Julio does a good job offering some examples in his piece, and I’m inclined to agree with the general sentiment. If nothing else, “accusatory observation” does a far better job of getting to the heart of the particular emotions we experience when being surveilled.

The intrinsic value of privacy is important because without an ability to occasionally opt out of the surveillance that predominates modern bureaucratic states, people become uncomfortable. As I mentioned earlier, there are certainly situations where state observation is necessary and valuable as a means towards ensuring an efficient and well-functioning modern society. As such, privacy in such a society can never be universal; but neither can it be wholly subservient to the pervasive state surveillance that has come to characterize totalitarian regimes. Rather, the value of, and right to, privacy must be precariously balanced against the needs of democratic institutions.

The nature of modern society necessitates privacy be intermittent, not consistent.

Western political institutions, Julio correctly points out, place value on the consistent application and enforcement of laws, as well as a certain degree of bureaucratic efficiency and competency. It is because of this that our lives are necessarily less private than they might otherwise be. The privacy rights of citizens living in developed bureaucratic regimes cannot favor consistent anonymity. Nonetheless, people do require means of occasionally escaping an otherwise over-regulated society. As Julio notes:

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 … 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.”

Julio goes on to elaborate on this point in more detail in his extended essay. He argues the extent to which private spheres of retreat are common is a good measure of “where a society lies on a spectrum between, on the one hand, merely efficient and effective modern government, and on the other, totalitarianism.” We can accept that the state will have occasion to observe us at least some of the time. However, when that observation crosses a certain threshold, a society can subtly meander from a structure of effective bureaucratic governance to an unaccountably robust surveillance state, replete with all the trappings of an Orwellian dystopia. Unfortunately, that line is blurry; and as a result, we’re often uncertain how far we’ve marched towards totalitarianism until we finally arrive.

In order to better evaluate the contexts in which we ought to prioritize privacy over other values, a rough hierarchical arrangement can help us parse through some of the details. In particular, framing a hierarchy in terms of how we think about violations of privacy is more helpful than attempting to assess the fundamental value of privacy in any given situation.

Towards a hierarchical framework of privacy violations

The law is limited in its ability to appropriately define the boundaries of the private precincts of life. To that end, I agree with Julio in his contention that “the U.S. constitution, and indeed law itself, may not be the only or even the most important tools in protecting privacy.” The common law can contribute to our understanding of privacy, but it cannot be the final arbiter of where the public/private line is ultimately drawn. What it can do, however, is help inform how we think about privacy in different contexts.

In my previous piece, I suggested 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.

The state possesses the authority to legally coerce citizens. That authority can potentially be applied disproportionately or arbitrarily, and therefore needs to be controlled through strong legal mechanisms—checks and balances, as well as a high burden of proof that any individual citizen has transgressed against the rights of another. The potential harm from the state invading the private precincts of citizens’ lives is high.

Corporations hold a certain power over individuals that may at times warrant legal checks. However, the power they wield are less coercive than that held by the state. A firm can engage in manipulation, violate contractual agreements, and mishandle consumer data; it cannot, however, fine, imprison, or force individuals to performs certain actions in the same way the state may. The potential harm from corporations violating consumers’ privacy is far less acute and may often be benign.

Additionally, there are many social and legal recourses for correcting an erroneous—or intentionally injurious—behavior of a private firm. The fundamental issue here is consent, not fear of accusatory observation. “Some corporate surveillance,” as Julio correctly notes, “is not objectionable because it is conducted with indifference to rightness or wrongness of our behavior—it is simply conducted in 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.”

As I pointed out earlier, privacy violations from other individuals may not be “accusatory” in nature, but when they are unwanted or unwarranted (such as the case of the peeping tom), they are still a violation of an expectation to privacy. These expectations differ with each individual, and the recourses available for remedying a harm resulting from such invasions are robust. There are certainly legal mechanisms that can address such a violation (such as local statutes and ordinances that criminalize stalking and voyeurism). However, the most robust manner of dealing with citizen-citizen privacy invasions stem from informal social norms. Such norms generally guide good behavior in situations that are highly context-dependant, such as the use of camera phones in the gym locker room.

In short, we can think of privacy violations warranting a three-tiered hierarchy of remedies. At the top, violations resulting from the state are most effectively policed by strong legal constraints and Constitutional protections (e.g. the Fourth Amendment) that weigh heavily in favor of the individual. In the middle, corporate malfeasance (e.g. mishandling of private information), if it results in a clear harm to an individual, can be remedied through class action lawsuits and torts, guided by the wisdom of the common law. Finally, at the bottom lies violations of privacy instigated by fellow citizens, which in more extreme circumstances can be dealt with through the courts, but which more often than not are governed by the proliferation of generally accepted social norms and etiquette.

Our expectation of what constitutes a privacy interest—and therefore what we consider to be an appropriate scope of privacy rights—are constantly reshaped by technology. I agree with Julio that there is an “intrinsic value of freedom from a certain type of observation.” Where we disagree, however, is that “technological circumstances” largely form the baseline of expectations in privacy. As those expectations change, so too does the extent of “surveillance” individuals are willing to tolerate, including “accusatory observation.”

Conclusion

How we think about privacy matters a great deal. To that end, I believe we’re slowly getting to a more comprehensive understanding of how we discuss this particular value. Some details likely still elude the conversation and I hope we can move towards fleshing those out. In the meantime, I’ll end with what I think are some broad elements that should inhere in a framework for thinking about privacy:

  1. Privacy is a transient value in any modern state, which at times requires means of accurately identifying individuals.
  2. Nonetheless, it is important that “zones” where we are free from accusatory observation be maintained, otherwise we risk a society awash in tyrannical efficiency and lacking in liberty.
  3. Privacy can be valuable as a means to an end (instrumental), adapting to developments in technology and changing expectations.
  4. Privacy can be valuable as an end in itself (intrinsic), suggesting where a society is situated along a spectrum of political governance (from a rights-respecting democratic bureaucracy to a totalitarian dystopia).
  5. Defining the intrinsic value of privacy rights in relation to the state as “freedom from accusatory observation” allows for an effective categorization of where along the political spectrum a given society lies.
  6. Context-based distinctions weighing potential harms resulting from privacy violations can help us better balance the costs and benefits associated with a freedom from accusatory observation.

I look forward to continuing this dialogue and welcome thoughts and feedback.