(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!
