English: Reporters Without Borders 2009 Press Freedom Index world map. (Photo credit: Wikipedia)
What is missing from the debate on privacy, in general, and the debate over state surveillance, in particular, is the question of the political good either defended or promoted by constraining surveillance and protecting privacy. What is the political good that privacy advocates want to achieve? Is it to be let alone to control one’s person, even in the public domain, and exercise autonomy? Is it to be free from government surveillance to create an identity beyond its reach? Is the political good it serves free expression that supports democratic politics, as any surveillance that invades a person’s privacy is believed to chill their free expression? We see articles that ask and explain what privacy is for, yet these appear to fall short of explaining the political good that privacy serves except to suggest that it is good for freedom of the individual within liberal democracy.[1] These articles return us to the original question: what is the political good that privacy serves or enables?
Autonomy
If our goal is to be let alone, to be “digitally private”, that is to have autonomy in the digital domain, what is a person or a citizen in the digital world? A citizen or a person is a related being and to be a citizen or a related being means to be known. To be known means that the state and our friends will know us and relate to us for good or ill. If in the digital domain we understand and pursue autonomy as the being expressed by a reduced sense of relatedness, we have to consider whether that starts to challenge how we relate in the physical domain. If we want a digital identity that we can control and keep unrelated to our physical person, would our digital “person” become a separate entity. In this view, an individual make themselves private only to the extent that they stop being part of the state, in the extreme, leaving it or living so far away from society as to be a solitary hermit. In such a view, the good that is served is the individual’s good, but not the society’s good and in an extreme view severs the relationship between the individual and the community or state. However, what remains is that an individual still exists within the state framework as their decision to remove themselves is not binding on the state. They have a name and personal details registered with the state. However, most people do not attempt or want that level of privacy (or autonomy) because they understand privacy is to serve an end to which they want. Eventually they have to exist as a person because they are a related being they are the child, parent, or relative of someone. To paraphrase Aristotle, if they live beyond the walls of the city, thus remove themselves entirely from that relationship, they are either a beast or a God. Man is neither even though he aspires to be both at times.
The problem of autonomy leads us to consider a second good that privacy is supposed to serve: a reduction or removal of the government’s surveillance in our lives, in particular, our digital lives.
Bureaucratic shadow
If privacy is a way to reduce government surveillance so that we can control our person (digital or physical), we must consider that we remain part of a society. As part of a society, being a citizen, we have a bureaucratic shadow. A bureaucratic shadow follows all citizens and consumers in the physical and digital domains. We leave a record of our existence through our transactions. No citizen lives without a bureaucratic shadow. Everyone has records and documents they need so that they can establish their identity and their rights within a state or community. This is why privacy by design will only ever be a partial solution to the problem of privacy. If we want to avoid government constraints, to reassert our privacy, we would need to understand our bureaucratic shadow is as much, if not more, of a constraint as any government surveillance or intrusion into our digital lives. Our desire to “control” our digital “person”, if not our physical person, is constrained by the bureaucratic shadow, which reminds us that we are more a creature of the government and institutions than we would like to admit to ourselves. In this political good, we see that privacy becomes a proxy or measure for what the state or community will allow us. In that regard, privacy is a function of the community or the state and it is the space that it allows an individual to act as an individual. Within that space, we see the third potential political good that privacy serves—free expression.
Free expression
If privacy is needed to protect free expression from surveillance, we need to understand how surveillance “chills” free expression. When we look at the causal relationship between surveillance and chilled free speech, we find that it is riddled with ambiguity and contradiction as it simply confuses chilling with anything that we perceive to be limiting our “freedom”.[2] If people listen to a speaker on the bus or the train have they put the speaker under surveillance? If a writer publishes opinions on a social media network are they under surveillance? If the speakers on the bus refrains from speaking on certain topics because they realize people are listening, have they been “chilled”? If no one listens to the speaker or reads the writer, have they been censored or silenced? When we work to connect privacy to personal freedom, we begin to discuss its political good. We return to the first order question of whether privacy is even necessary for freedom and freedom of thought. Privacy by itself does not create freedom or tolerance nor does privacy require tolerance.
When we ask what is the political good that is served by privacy, we demonstrate that privacy is not an end in itself. Privacy is only something that enables a primary good. Privacy appears refers to a space within the state that is not public. The digital domain presents a further difficulty because it can exist beyond the state yet it is dependent upon the state or a corporation for someone to access it. Such an approach to privacy reveals the extent to which it is as an epiphenomenon of the modern state. Privacy, to the extent that it exists, appears as a by-product of the modern social contract as expressed in the modern state’s relationship with an individual or a consumer with a corporation. To put it differently, but directly, the state allows us privacy we do not have it by natural rights.[3] We cannot speak of privacy without reference to the state or even to public opinion. They demarcate the space within which an individual has “privacy”. Yet, that shows the ambiguity and a deeper problem for privacy. If the individual follows public opinion or is shaped by public opinion, the individual is only understood in contradistinction to or in relation to public opinion or the community. We believe we have a private sphere, separate from the public, in which the state cannot intrude. Yet, that belief is based on the state’s respect for it rather than an intrinsic part of the individual. In the digital domain, this dependent relationship can be seen in the necessity of a system administrator who has access to your accounts. In your own home, though, you do not have a system administrator. The system administrator shows the tension or difference between the nature of the two realms and their offer of privacy. To the extent that the private sphere exists, it is limited by public opinion. Public opinion though plays a greater role than the state in an individual’s private life. The individual is only private to the extent that they can escape public opinion, which is not something they can do immediately by leaving the public domain.
The tension between the public and private domains is something that Hannah Arendt discussed in her book The Human Condition. There she discussed the idea that for the Ancient Greeks the citizen was only fully alive or fully human when they participated in the public space.[4] In the public space, the life within the community, the citizen can reach their fullest potential. By contrast, the private domain was a limited space cut off from or dependent upon the public domain. Consider the case of prisoners, who are cut off from the public realm because of their crimes. In prison, they lose their political rights and in that sense their access to what makes them fully human. For the duration of their sentence, they live a sub-human life. They are not living an inhuman existence nor are they less than human. They cannot be fully human because they cannot participate fully in the public domain, which means they cannot participate fully in the community. The difference between the public and the private realm was expressed clearly in a tyranny. In a tyranny, only the tyrant was a public person. Everyone else was private. Only the tyrant could act publicly as those subject to the tyranny could not participate in a public life except through the tyrant. In a tyranny, there is no public space as there is in a democracy. Artificial spaces may be created in a tyranny and these serve to remind those who participate that they exist only at the tyrant’s dispensation.
Does this suggest that privacy is only important as a correlate to the public domain? The modern idea of privacy seems to argue against this point as the public domain has been drained of meaning and it is not a place where the individual finds their fullest potential. Instead, privacy advocates want to increase the private domain even further. They want to reduce the public domain to such an extent that everything becomes, for the lack of a better word, publicly private. They want to act on a public system, such as Facebook, but retain privacy controls. They do not want it public in the sense that it is controlled by the government, or owned by the people, in the sense of a public park or a public library. In this desire, they demonstrate liberalism’s success in paving the way for an autonomous individual at the expense of the public domain. The citizen no longer finds their fulfilment in the public domain where they participate to shape the laws that guide the way they live. Instead, they find it in the private domain where as an individual they can exercise their autonomy and find their fullest, if still limited, expression as a human.
If we extended the Ancient Greek idea to the modern world, it would mean that only elected officials or public officials could act publicly. They participate fully in the public domain when they debate, create, and enforce the laws that shape the way they (and others) will live. However, the modern political system allows more citizens to participate indirectly through representation in the way the laws are made. In the current political system, the indirect participation through representation also changes our understanding of the private realm even as it increases the potential for public participation. However, it also means that a citizen’s interests are diverted into other areas. As the public domain is reduced, or rendered less important by the appeals of other areas, the private domain becomes a place to find fulfilment. Unlike the ancient world, the freedom of the private sphere today depends on the modern state’s technological capacity to sustain a public domain without the public’s direct involvement and create enough opportunities, such as fame and fortune, to maintain the citizen’s interest in the private sphere. The public realm one could argue exists to sustain the private domain. In the private domain, we see the political good that privacy serves.
Privacy’s political good is hedonism.
The arguments about privacy are extended and exaggerated in the digital domain. In the digital domain, which is hybrid of public and private, the individual appears to have a different relationship with the state and the community. In the digital domain privacy does not appear an end itself and it is hollow of meaning until it is filled by someone’s intent. In many cases, the intent is often to remove the user from the public’s gaze or the government’s gaze that represents the public. The desire to escape the public gaze reflects the intent of the author of the modern idea of privacy: Thomas Hobbes.
Thomas Hobbes developed the idea of the private domain within the commonwealth as he distinguished that he public opinion must be sustained for public safety, which allowed private opinion to remain. He did this in part because he had learned from the English Civil War and the problems associated with religious belief being the basis for persecution. Even though his views on the state mean is often considered an absolutist, his work sets the foundation for the modern idea of privacy in which the public domain supports and protects the private domain. The pursuit of pleasure is what drives the private domain. In this, Hobbes was a political hedonist. The individual wanted their own good. We see that hedonism is the political good that privacy serves. Unlike Hobbes’s age where virtue was a strong constraint on the pursuit of hedonism at the cost of society, the modern era is marked by the pursuit of private pleasures. One could argue that the demand for privacy, especially in the digital realm is an attempt to give private pleasures and practices public protection, which would invert Hobbes. Hobbes believed that any private pursuits or pleasures had to be subject to or restrained from the public domain. Instead, the idea that Spinoza introduced, when he took Hobbes one-step further, was that the state had to protect the private sphere no matter what it pursued, is now inverted. In the digital domain, privacy enables private pleasures and the political system is to be adjusted to protect those private pleasures either digital or physical.[5] The demand for digital privacy is reflects a pursuit of digital pleasures as if they are political or public acts and protected accordingly. Political hedonism means that the public domain is drained of any meaning except to the point where it expresses our private pleasures. The political good that privacy serves is hedonism. The demand for digital privacy now reduces the public realm to serving our private pleasures.
Even as we ask “Is this the freedom we have sacrificed so much to achieve?”, we must remember that without surveillance we would be unable to achieve it for the extent of our freedom is the limit of the modern state to protect and promote our private pleasures as a public right.
[1] See Julie E. Cohen, What is Privacy for? Harvard Law Review vol 126, 2013 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2175406 (accessed 6 July 2014) The challenge is that contrary to Cohen’s argument, liberal democracy does rest upon a surveillance structure. In an important way, as set out by Hobbes and never refuted by liberal democratic theory, is the need for the state to conduct surveillance sufficient to protect and promote the citizen’s right. Moreover, privacy has never been necessary for innovation. The individual needs to be free to associate and innovate; however, that freedom is not the same as privacy. People innovated before there was a modern state that created the idea of privacy and one cannot assume that innovation is always a heterodox position.
[2] Public opinion has a stronger ability to chill free expression than state surveillance. The power of public opinion to create conformity is nearly unparalleled in its long-term effectiveness. https://lawrenceserewicz.wordpress.com/2014/01/29/surveillance-conformity-and-censorship-the-reality-and-the-myth/ (accessed 6 July 2014)
[3] The European Convention on Human Rights and the United Nations conventions of Human Rights are based on positive rights. They do not derive their power or authority as natural rights. There is an argument within Locke that man has property in himself. Yet, that rests upon an assumption created by the modern state rather than based on an argument from nature. Self ownership is a self-assertion. Moreover, as an assertion, it does not say that ownership of self creates or determines privacy within a state, only that one has responsibility for one’s self to the extent allowed or required within the social contract. In other words, the idea of the individual and by its extension privacy finds its fullest expression in the modern state and is not automatically associated with natural right.
[4] See for example chapter 2, The Public and the Private Realm. http://frontdeskapparatus.com/files/arendt.pdf (accessed 6 July 2014)
[5] See for example the Economist Virtual Pleasures Cyber Hedonism, which explores why the young who are exposed to the web prefer to pursue their pleasures rather than political change. http://www.economist.com/node/13062236 (accessed 6 July) in this, it seems to suggest what Hobbes suggested about reason now becoming the scout and spy for the passions. https://lawrenceserewicz.wordpress.com/2014/06/01/is-the-web-now-a-scout-and-spy-for-the-passions/ (accessed 6 July 2014)
Philosophical Politics 