Privacy and the Public Interest

As the still-unfolding revelations of NSA surveillance over virtually all of Americans’ telecommunications show, it is clear that privacy advocates have their work cut out for them. Two recent books decry the privacy violations but stop short of formulating workable ways to protect privacy interests.

Privacy
by Garret Keizer
Picador, 2012, 183 pp.

Unpopular Privacy: What Must We Hide?
by Anita L. Allen
Oxford University Press, 2011, 159 pp.

Decades ago, I resolved to read every article and book on privacy that appeared in the mainstream media. I didn’t succeed, but at the time the plan was not crazy. Today anyone who attempted it would quickly run aground.

In this millennium the steady onslaught of innovation in modes of creating, analyzing and exploiting personal information is the new normal. The changes come in waves. The eighties gave us the Internet, with its voracious capacities to elicit from and absorb the data of its users; the nineties opened the way to mobile telephoning and web marketing. And since 2000, social media have spawned yet another set of seductive inducements for generating information on one’s self—along with new industries for appropriating and exploiting such data. It would be absurd to imagine that these waves of innovation in the social role of personal information have exhausted themselves.

The still-unfolding revelations of NSA surveillance over virtually all of Americans’ telecommunications have of course given new urgency to these concerns. But I believe that one reason why these disclosures have reverberated so widely is the widespread realization that our phone calls, text messages and e-mails represent just one among countless forms of personally-identifiable data that are vulnerable to such tracking. People sense—and properly so—that there’s no telling what further forms of personal information state and corporate organizations will next find ways to tap into. The lame protests of top officials that government is “only” tracking connection data (who contacts whom, how often, and for how long) flout the limits of public credulity. In fact, we are witnessing a quantum step forward in the kinds of things governments can know about the governed. We are right to wonder what else the watchers will next be shown to be tracking—and what new opportunities for such monitoring the coming years will offer.

As one might expect, commentaries on the fate of privacy—that amorphous notion—in the face of these changes have grown apace. Nearly all the authors express something between concern and anguish over privacy values in a world where more and more interested parties have a role in monitoring and sharing more and more details of everyone’s lives. The first thing to note about this outpouring of concern is that hardly anyone is prepared to declare himself or herself against privacy or even indifferent to its fate. The second thing is how rare are proposals for defensible, robust measures to redress the balance between privacy interests and the forces countervailing against them. Still scarcer, for similar reasons, are systematic arguments as to where in principal to draw the line between what information (or images, or realms of experience) must be defended as private—and where the public interest warrants access even to matters that the parties would prefer to keep to themselves.

These two books illustrate these difficulties, notwithstanding their differences in tone and intended audience.

Garrett Keizer’s Privacy offers a light-footed sprint through privacy dramas in recent American life, with occasional historical vignettes and one-liners from eminent figures from Erasmus to Catherine MacKinnon. The background hum is that things are bad and getting worse; privacy is losing to the same corrosive corporate and political influences that, Keizer holds, are eroding all sorts of other civic virtues. “[T]he middle class is vanishing,” Keizer writes, and “the privacy of all but a few people is vanishing with it.”

Keizer casts the widest of nets, but his analyses do not take us very deep. He begins with Tyler Clementi, the Rutgers undergrad who committed suicide after his roommate’s much-publicized webcam recording and dissemination of Tyler’s romantic tryst with another young man. Commenting on the vast outpourings of Internet pronouncements on the affair, Keizer writes, “The same techniques and attitudes that prevented Clementi from carrying on his love life … in peace prevented his betrayers from paying a penalty appropriate to their youthful indiscretions…. It is a curious paradox of the times we live in … [that] every one of our transgressions lives eternally within some data bank, effectively beyond the pale of forgiveness.”

It is certainly true that the Internet can spread personal information indiscriminately. Whether Tyler Clementi’s troubles could be attributed primarily to the machinations of powerful institutions, though, is another matter. Surely significant responsibility for this environment has to be shared by all members of a public willing to accept and participate in, these voyeuristic processes. And what principles, laws or regulations would Keizer put forward to forestall future tragedies of this kind? Restrictions on calling attention to what many would no doubt consider controversial or immoral behavior? Any effort to set down such principles quickly runs into delicate questions of freedom of expression. That is where the hard analytical work begins.

Other discussions range from Robert Lowell’s indiscreet and unfeeling publication of intimate letters from his soon-to-be-ex-wife Elizabeth Hardwick to reflections on advice given in a nineteenth-century guidebook for “wellbred” young ladies on discretion to be observed in writing letters to men. Elsewhere, we learn of the indignant reactions of Britain’s King Charles I, on finding his private correspondence captured, and published by his Puritan enemies, in hopes of scoring a seventeenth-century propaganda coup. The monarch railed against a breach of “civility from all men not wholly barbarous”, revealing a healthy sense of distinction between private and public even in a nation riven by civil war.

Some of the accounts of violated privacy are intriguing and provocative. Others are heart-breaking—the Lowell-Hardwick story, among others. Still others are heart-breaking only in their superficiality:“The only thing a rogue cop loves more than shaking down a Hispanic kid in a lowrider is getting his hands on a tipsy college professor in a Porsche… “Keizer writes; “Jackpot if the college professor is black.” I am racking my brains to think of a college professor known to me, of any color, who drives a Porsche.

The nearest Keizer comes to sustained analysis of a major privacy debate is in Chapter 12, “Women and Men”. It begins with an epigraph from a famous prise de position by Catherine MacKinnon:“this right of privacy is a right of men ‘to be let alone’ to oppress women one at a time.”Many readers will recognize in this the opening salvo in a certain strain of feminist writing. One has to wonder what remedy is implied in this position—categorical suspension of concern for privacy? Keizer hardly wants to embrace that solution, but he doesn’t want to challenge Catherine MacKinnon, either.“She has dedicated her career to waging a kick-ass war against the oppression of women … “, he writes. But“[i]t is the scorched-earth nature of the war that troubles me.” And then, rather than digging into the full implications of MacKinnon’s words, he folds his rhetorical tents and moves on to the next writerly oases—brief allusions to the book of Genesis, the memoirs of Abigail Adams, the writing of Ursula Linguine and Christopher Lasch, and so on.

Throughout these discussions, Keizer casts privacy consistently on the side of the angels—with demands for disclosure, intrusion and dissemination as the villains. Privacy, he writes in the concluding pages of the book, “is the canary in the mine of our civilization. It lives or dies to the extent that we remain willing to believe that the human person…is sacred, endowed with inalienable rights, and a microcosm of us all.”It all sounds good. But such sweeping pronouncements don’t provide much help in resolving daily dilemmas such as how much we want to empower agencies like the FBI to troll the Internet and other sources for tips on the “private” conduct of public officials—as in the inquiries that brought about the downfall of David Petraeus in 2012.

The enduring and unavoidable conundrum, then, is how to define the sphere of the private. Essential for any reasoned defense of privacy values is a demarcation principle to distinguish where those values must yield to countervailing claims. No thoughtful commentator upholds privacy categorically against all competing values and interests. We should hardly accord absolute rights of privacy to political figures caught in embarrassments reflecting on their fitness for office, for example, over and against efforts of news media to investigate and comment. Similarly, we recognize that some apparent terrorist conspiracies warrant aggressive investigation; some medical confidences (diagnosis of highly contagious diseases, for example) should be subject to disclosure; some criminal histories (e.g., those of felons convicted of crimes against children) need to be available to those filling certain jobs, etc. In short, privacy is one of those “essentially contested concepts” whose requirements and limits must be constantly be redefined in relation to competing claims from institutions, neighbors, families and the like.

What makes these debates both indispensable and intractable is that there is no obvious a priori boundary between private and public. Often it is one’s most intimate, most “personal” information that potentially matters most to others—information on one’s health, one’s most fundamental loyalties, one’s financial situation and the like. In the absence of a bright-line principle of demarcation between private and public, our only recourse is discussion that is ultimately political—aimed at deciding what kind of a world—in terms of who can know what about whom – we want to inhabit. For most of human history, such choices have been given by default, dictated by contingencies of population density, government powers, family custom and the like. Now things are much different. With the steady stream of innovation in social roles and uses of personal information, the need for searching public conversations on these matters grows ever more acute.

Anita Allen’s Unpopular Privacy offers a mix of striking aperçus and unsatisfying larger conclusions similar to Keizer’s, although in a more academic mode. Allen, a professor of law and philosophy at the University of Pennsylvania, focuses on settings where the law obliges people to accept restrictions they may be inclined to resist on what she characterizes as their privacy—instances where privacy is “unwanted, disliked, not preferred … [or] resented”. Such cases raise the prospect of “paternalism”, she holds—a term triggering all sorts of conflicting reactions and responses from different points on the ideological spectrum.

Allen leads us through an array of legal arguments on matters ranging from nudity in public to “racial privacy” (situations where the law restricts collecting information on people’s race) to attorneys’ obligations to keep mum about certain information provided by clients. Some of these policy dilemmas do not appear to raise profound conflicts of principle. The Children’s Online Privacy Protection Act (COPPA), in effect since 2000, restricts collection from the Internet of personal data on children younger than thirteen without their parents’ consent. The measure is clearly paternalistic and, needless to say, unpopular with many young Internet users. Marketers had profited by eliciting kids’ data to track the susceptibilities and interests of the nation’s youngest consumers. But the legislation faced little principled opposition, in view of the histories of predatory uses of the data. Imposition of this privacy requirement was clearly no more than consistent with law in a variety of other areas—e.g., the inability of children to enter into certain binding contracts.

Nudity is the subject of another long chapter—another instance where the law sometimes requires sometimes-unwilling citizens to conceal what is personal, whether they prefer to do so or not. Libertarians, along with many of the rest of us, would certainly insist that those who enjoy nude dancing or nude beaches should have those options protected, at least so long as no one is forced to undress who prefers otherwise. Allen seems to concur, but she is obviously troubled by the potential for the exploitation of nude dancers. After a long review of U.S. and Canadian law, she ends with an unremarkable conclusion:“some anti-nudity laws may be reasonable responses to danger [to paid performers, presumably], but in the twenty-first century, all such laws merit suspicion as illiberal impediments to personal choice.” A more challenging case is the controversy pending, as I write in San Francisco, where militant nudists in that easy going city are seeking the right to appear undressed in public at any time and place of their choice.

As with Keizer’s book, one searches in vain for an over arching argument to give coherence to Allen’s commentaries. Her discussions wander and sometimes get mired in detail. Many parts of Unpopular Privacy do not seem to address government-imposed privacy requirements at all—e.g., her comments on French laws forbidding traditional Muslim attire. The result is a book that offers a window into a series of important legal controversies, but nevertheless yields something less than the sum of its parts. “My claim has been”, she concludes, that “we should live some of our lives in private, some in public … and [there] is often a role for government in requiring us to live this way. Privacy is too important to be left entirely to chance and taste.” Few readers will be roused to challenge such bland conclusions—suggesting that opportunities have been missed to engage more difficult, controversial questions.

This is a shame. The authors are right to convey that privacy values are up for grabs in today’s environment and that drastic changes would be needed to fashion meaningful protection for privacy interests. The problem is that hard discussions begin at the point where we stop decrying the invasion of privacy, and start struggling to formulate workable, innovative rights and principles to strengthen privacy interests across the boards. At that point it quickly becomes apparent that any such measures would face enormous resistance in a world where major institutions have come to rely on seamless access to personal information—and where popular sentiment often grants at least ambivalent legitimacy to such access.

Most Americans are convinced (on good grounds) that they leave their privacy behind as soon as they start dealing with the organizations whose services are required to lead a normal life in the United States—retailers, insurance and medical care providers, the Internal Revenue Service, the Department of Homeland Security, telecommunications companies, and on and on. Asked to identify the source of these losses, many would point to Technology (with a capital “T”) as the culprit—as though that mysterious force could somehow bend human affairs without the sponsorship of highly interested parties and institutions. And what Technology hath taken away, this narrative goes, no human agency can restore.

But there is no reason to accept such a conclusion. Some very simple and far-reaching changes in the legal status of personal information could spell vast gains for privacy interests. The problem with such measures is not that they are complicated, but that they would face a tsunami of opposition from information-using institutions.

Consider a disarmingly simple principle proposed by privacy advocates in the earliest days of these controversies: personal data collected for one purpose should not be redirected to other purposes without consent from the persons concerned. Though still granted lip service, this notion has a quaint ring to anyone who follows American personal data practice. In setting after setting, beginning with this country’s Privacy Act of 1974 (still our broadest national privacy-protection legislation) Americans are deemed to give their “consent” to waiving this protection, simply by dealing with the very organizations bent on re-using their data. As a result, Americans must prudently assume that data yielded to any one state or private organization has slipped out of their control for good—precisely what early privacy advocates feared. The situation is significantly better in Europe, but even the E.U.’s relatively stronger privacy codes have lost ground to data-hungry institutions in recent years.

Serious enforcement of the principle that use of personal information be limited to the purposes for which it is yielded—without people’s having to waive their privacy rights in exchange for basic services – would spell a revolution. Another simple but immensely powerful step would be the creation of a new kind of property right for ordinary individuals over commercial exploitation of data on themselves. Here any trade in personal data for commercial purposes would be illegal without explicit permission from those whose lives are depicted in the data. As an alternative to simply forbidding such uses categorically, individuals could specify strict conditions for exchange of their data—including payment of something like royalties by down-stream users.

These are measures that nearly everyone could understand and support—and that could thus generate effective popular enthusiasm for privacy codes that have too often been regarded simply as the province of specialists. To be sure, legislation to create such new protections would have to be carefully fashioned. One would not want any rights that would hinder public debate or media attention to newsworthy events and personalities. And any such protections should also identify points where authentic investigative needs—e.g., to respond to the imminent and convincing threat of serious crime—should trump privacy considerations. But exploitation of our personal data without our consent to grease the wheels of commerce—e.g., by helping retailers decide what we are susceptible to buying, before we know it ourselves—is simply unjustifiable. Nearly as ripe for regulation is the vast traffic in federal agencies’ purchases of reports on citizens’ life-styles and consumption habits—reports furnished by aggressive, for-profit corporations.

Who could possibly take exception to such forceful privacy-protection measures? Only the vast information industries—from Internet service providers to advertisers to credit reporting agencies—that today profit from the appropriation of personal data without permission from, let alone knowledge of, the persons concerned. Personal data today is a commodity, and none of the companies that have flourished by acquiring it will willingly renounce its use. Very often American corporations will invoke doctrines of corporate freedom of expression to justify trafficking in any personal data they can get their hands on.

And who else? I almost forgot! Virtually all of America’s political classes, who rely on the easy availability of personal data for purposes ranging from targeting electoral campaigns to trolling through Americans’ telecommunications in the prosecution of the administration’s undeclared war on terrorism. The gritty determination to win votes via privacy-invading robocall campaigns, to take just one example, has blocked privacy-friendly measures to protect telephone customers.

So you see, privacy advocates have their work cut out for them. But that shouldn’t stop us from seeking clear alternatives to today’s strikingly un-private world.

James B. Rule is a sociologist at UC Berkeley’s Center for the Study of Law and Society; he has been contributing to Dissent for thirty years. His most recent book is Privacy in Peril: How We Are Sacrificing a Fundamental Right in Exchange for Security and Convenience (Oxford University Press).