(Eerie music)
- (Michael) Hey Wisecrack, Michael here. Today, we’re going over a topic of concern to both
big tech and big Shrek:
- (Shrek) What do I have to do to get a little privacy?
- (Michael) Yes - privacy. The answer to Shrek’s question is a little, well complicated in
our day and age. Do we uninstall Tik Tok?
- (Tiktoker) Sorry I just had to wash my hands before getting in.
- (Michael) Send a strongly worded DM to Mark Zuckerberg? Become a juggalo to foil facial
recognition?
Privacy’s all over the news: specifically, the many ways it’s being trampled on. So
exactly how angry should you be if the Chinese or American governments get a copy of your
sick WAP tik tok?
We take for granted that this thing called “privacy” is a universal good that we
should share lots of think pieces about. But what exactly is “privacy” in the first
place? Where did the idea come from, and why does it raise such powerful emotions? And
perhaps most importantly, why should we care about the state of privacy today? Let’s
find out on this Wisecrack Edition on the Philosophy of Privacy.
- (Michael) The concept of privacy as we know it now likely has its roots in a much more
basic concept, namely “property”—the notion that certain things “belong” to
certain people, or certain groups, and not to others
- (Group) Yeah he swims in money! I knew it!
- (Michael) Philosophical discussions around ownership are some of the oldest texts we
have, and they lay out the separation between an individual and the group to which that
individual belongs. And without that divide, talking about privacy is kinda pointless.
The most well-known of these treatments comes from Aristotle, who posited a division between
what he called the “polis,” or the public sphere, and the “oikos,” or private sphere.
This ie healthy protein.
Classicist Douglas MacDowell points out that oikos could have one of several different
meanings, depending on the context. In a very literal sense, it can mean an individual’s
“house,” but it can also mean all of the household goods that Marie Kondo wants you
to trash, i.e. “property,” and under certain circumstances, “family” - which, I dunno
- do they spark joy? In other words, the Greek oikos consisted of all those things which
could be said to “belong” to the male head of a household: the property itself;
the commemorative Plato chotchkes, oh, and also the women, children, and slaves that
lived on said property. These things therefore did not belong to the polis, the public. Of
course, many people didn’t own land, making this “not a fun time.”
The very culturally specific distinction between the “household” and the “public” sphere
is a big part of the foundational thinking that enables us to say, for instance, that
data about our online behavior is “ours,” and that it is therefore a violation of our
“rights” to collect it without our express consent.
We can see how by fast-forwarding all the way to colonial America. There, this concept
of private ownership was also a big part of the reason why, in between teeth-pullings
at the blacksmith shop, the Founding Fathers worked up such a collective head of steam
over British intrusion into their affairs.
As scholar Daniel J. Solove explains, revolutionary Americans had a very specific grievance with
the colonial authorities: “The Founders detested the use of general warrants and writs
of assistance.” That is, you could have your house searched and your shit seized without
any basis in evidence - and it was not uncommon for the authorities to grab the personal papers
of dissidents and authors.
Underlying the Founders’ anger was the belief that there is such a thing as “personal”
stuff to begin with. In other words, they were willing to endure the pain-in-the-ass
that was musket warfare
- (Man) 1, 2, 3, fire! (Nothing happens)
- (Michael) in large part to create a division between what the government does and does
not have the right to inspect on demand. Key American figures were even wary of surveillance
by their own government—so much so that they took to writing their post-Revolutionary
letters in code: this included folks like George Washington, Thomas Jefferson, and
- (Lin Manuel) Alexander Hamilton.
- (Michael) Their orneriness would lead to the Third, Fourth, and Fifth Amendments. These
prohibited the forced quartering of soldiers in a home without the owner's consent, established
the requirement of probable cause for searching and seizing your stuff, and established the
basics of a fair trial, respectively.
These Amendments further refined the concept of privacy with regard to individuals and
their relationship to a liberal democratic government, in an American context.
But it wasn’t until 1890 that the modern idea of privacy as a legal concept was fully
articulated. That year, attorney Samuel Warren and eventual Supreme Court justice Louis Brandeis
published “The Right to Privacy” in the Harvard Law Review. It brought immediate and
widespread attention to the issue of people poking their noses in other people’s business
- (Elaine) Those two girls behind you? They're eavesdropping.
- (Michael) And publishing their findings in the tabloids. This was a popular concern
in a time when increasing population size and rapid urbanization brought many people
into closer contact than ever with their neighbors— and as a result - their domestic dramas.
In the article, Warren and Brandeis argued that the common law conception of property
protections ought to cover not just physical property, but intangible property as well
- like your sordid Netflix watch history or your idea for the next great workout
- Yeah sure, the 8 minute ads, the exercise video right?
- Yeah well this is going to blow that right out of the water. Listen to this: 7 minute
abs.
- (Michael) The way they saw it, the law wasn’t keeping up with recent technological developments,
or the businesses that profited off them—specifically, newspapers, the nineteenth-century equivalent
of TMZ. As they put it:
“Gossip is no longer the resource of the idle and of the vicious, but has become a
trade, which is pursued with industry as well as effrontery.”
They noted that this new trade profited off of “the details of sexual relations... which
can only be procured by intrusion upon the domestic circle.”
Broadly speaking, privacy was then, as it is now, primarily about protecting your nudes.
In more precise terms, legal scholar Dorothy Glancy claims that “for Warren and Brandeis
the right to privacy was the right of each individual to protect his or her psychological
integrity by exercising control over information which both reflected and affected that individual’s
personality.” In this way, these two sepia-toned men expanded the concept of “the private”
yet again to include not only the property in an individual’s possession, and that
which is restricted from government surveillance, but also what goes on inside one’s head,
and anything that might impact that, such as potentially damaging gossip. Or, in today’s
day and age, your tinder message history.
More recently, in his 1966 study of surveillance technology, law professor Alan F. Westin pointed
out that laws surrounding privacy depend on context - specifically whether you’re talking
about the privacy of your average citizen vs the privacy of the government. In “Science,
Privacy and Freedom,” Westin explains that different political systems treat privacy
differently, and that “norms of privacy” are dictated in large part by culture and
tradition. As he put it: “certain privacy patterns are functional necessities for particular
kinds of political regimes. The modern totalitarian state relies, to varying degrees, on secrecy
for the regime and full surveillance and disclosure for all other groups.”
In other words, the totalitarianism seen in in the Soviet Union and Nazi Germany required
privacy for government paired with a forced lack of privacy for citizens. By contrast,
at least in theory, the structure of a liberal democracy demands transparency for the government
coupled with privacy protections for individual citizens.
This statement seems perfectly obvious — until you realize that, even within liberal democracies,
we’ve never actually reached a universal agreement about who ought to have what kinds
of privacy, and for what reasons.
Philosophers, scholars, legal analysts, and others with a vested interest have continually
argued about whether privacy is a good or bad thing to begin with. In his overview of
the history of privacy and publicness, scholar Slavko Splichal points out that “private
relations may also be heavily authoritarian, violent, and even brutal. Protection of privacy
may also have negative effects: Under the veil of privacy, abuses of power including
domination, exploitation, violence, tyranny, and censorship, as well as unlawful and unethical
activities in families, corporations, and organizations, can be kept away from public
monitoring and righteous sanctions.”
To simplify, privacy is great when it means keeping our browsing habits away from the
NSA—but not so great when it’s used as a justification for hiding child abuse in
the Church, violence in the home, and so on.
Even Aristotle, the very thinker who helped define the private and public spheres, claimed
that “We must not regard a citizen as belonging just to himself; we must rather regard every
citizen as belonging to the state.” For all his talk of private ownership, in other
words, Aristotle believed that the private realm extended only so far, and that an individual
ultimately existed as part of and to serve a larger whole. Later challenges to the notion
of privacy as an unambiguous good came from not only utilitarian philosopher and preserved
corpse Jeremy Bentham — who called privacy “one of the most mischievously efficient
instruments of despotism,” but also feminist thinkers such as Carol Hanisch, who first
coined the phrase “the personal is political.”
Hanisch and others challenge the idea that there is a distinction between the public
realm of tweeting hot takes and the private realm of arguing with your partner about what
movie to watch next. They argue that the relationship between husband and wife, or mother and children
are inextricably tied up with the politics of a broader society. To put it another way:
if a society doesn’t value women’s agency, that same idea bleeds into the private home
when a husband refuses to let his wife help decide what to watch on Netflix. The inverse
is also true - if men refuse to let women make the “hard decisions” at home, like
whether to rewatch Firefly versus Battlestar Galactica, they’re probably less likely
to trust women to vote or hold offices. According to this train of thought, denying
the connections between public and private life allowed outright abuse and oppression
to go unchecked, as long as they took place within the home, beyond the reach of public
scrutiny. Of course, this would seemingly make a slam-dunk argument for “you get no
privacy on your phone,” because as lawmakers try to chip away at things like encryption,
they’ll inevitably point to someone doing something bad with all that privacy as a reason
to take away yours.
In spite of these complications, privacy still has its many defenders. In her article “What
Privacy Is For,” law professor Julie Cohen argues that privacy is vital for the development
of individual identity, or as she calls it “critical subjectivity”. As she puts it:
“Subjectivity is a function of the interplay between emergent selfhood and social shaping;
privacy, [...] enables situated subjects to navigate within preexisting cultural and social
matrices, creating spaces for the play and the work of self-making.”
According to Cohen, our subjectivity — that is, our sense of individual selfhood, as defined
both by what’s going on inside our heads and outside of them, a la Warren and Brandeis—requires
privacy to fully develop. In order for us to form our own opinions, values, etc., we
require a buffer zone between what we’re thinking and doing and what the outside world
can see, at least some of the time. This space between us and everything else creates a safe
area within which we can try out new expressions of selfhood and make mistakes. That is, we
can do so without fear of being mocked by the entire internet for thinking that a fedora
would really complete our aesthetic, or being really, really into twilight fanfic.
Here, we circle back to Westin, and the question of why privacy is so damn important in the
first place. You’ll recall that, according to Westin’s theory, different kinds of societies
need different relationships to privacy in order to exist — the liberal democracy we
strive for, for instance, requires a great deal of privacy for its individual citizens.
Marrying this with Cohen’s understanding of the importance of privacy, we could argue
that democracies have to be made up of fully realized individuals if they are to function
correctly. In other words, when we lose our privacy, we gradually lose the ability to
fully develop as humans outside of the public eye. And that’s bad for a system of government
dependent on the will of the people. And thanks to Warren and Brandeis, we have some idea
about how to maintain that crucial space for individual development. Funny, then, that
as a society we’re giving away our privacy like candy corn on Halloween.
But seriously—for a group that’s thrown such a massive shitfit about privacy invasion
and data collection over the last few years, we seem to have very little problem handing
over our deepest secrets to anybody offering a fun freemium game, and generally mashing
that “Accept” button whenever we come across a “Terms and Conditions” page.
- (Steve Jobs) Fine, you don't want to be a part of this? Then sign right here. No!
You didn't read it! This says we don't ever have to let you out and we can do whatever
we want!
- (Michael) But maybe that’s not quite fair; after all, we’re not just throwing our personal
information away for nothing. When we permit a government or corporation to invade our
privacy by handing over access to our data, we generally believe we are getting something
of value in return: use of a social network, for instance. As Westin points out, the need
to socialize is a powerful one—and setting our privacy as the price of entry can make
it seem cheap by comparison. He claims that “each individual is continually engaged
in a personal adjustment process in which he balances the desire for privacy with the
desire for disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.”
French philosopher and mirror-impersonator Michael Foucault even went so far as to claim
that we are forced to hand over our privacy rights in order to participate in society.
Which makes at least anecdotal sense. Even, pre-internet, it’s understood that by stepping
into the public sphere, one loses any expectation of privacy as they scream at some poor Trader
Joe’s employee
- (Woman) That man harassed me for not wearing a mask!
- (Michael) Sure, you can get rid of your Facebook profile — with a bit of effort—but
doing so will cause a drastic increase in the number of friends’ birthdays that you
miss, and an immediate and marked decrease in the number of parties you get invited to.
For another example, by now we’re all mostly aware that rideshare and other apps may track
us even when we’re not using their services. So how many of us actually went out of our
way to delete those apps and call an actual cab every time we want a late-night ride home
from the bar?
And that’s not even touching on how easy it is to manipulate people out of their personal
information even when they’re trying to keep it safe. As Carnegie Mellon researchers
discovered in their review of behavioral analyses and experiments on people’s responses to
privacy invasion, it is startlingly simple to con people out of their data. So much so,
they concluded that “To be effective, privacy policy should protect the naïve, the uncertain,
and the vulnerable. It should be sufficiently flexible to evolve with the emerging, unpredictable,
complexities of the information age.”
So we find ourselves in a bit of a pickle. On the one hand, many of the technologies
that make the modern world possible demand our personal information in exchange for access,
and most of us have decided to fork it over. On the other hand, privacy is critical for
the development of fully-formed individuals—what Julie Cohen calls “situated selves”—who
in their turn are the starting point for democracy, which (most of us) at least still claim to
want.
How society will deal with this conundrum is still up in the air. There’s some resistance
to our compulsive data collecting, seen in the European Union’s General Data Protection
Regulation, which requires companies connected to disclose many of their data collection
practices, and Apple’s most recent pro-privacy publicity push
Or maybe it’s all futile. Either way, the issue of privacy is one we’ll need to keep
talking about as long as we’re still interested in being people who can govern themselves.
What do you think, Wisecrack? What’s the state of privacy in the world today, and where
is the debate about it headed? Let us know what you think in the comments. Big thanks
to our patrons for all your support. Be sure to hit that subscribe button. Thanks for watching. Later!