A World Without Privacy? What Can/Should Law Do?
University of Alabama School of Law
Dr. Austin Sarat
Justice Hugo L. Black Visiting Senior Faculty Scholar, The University of Alabama School of Law and William Nelson Cromwell Professor of Jurisprudence and Political Science and Director of Mellon Project on Student-Faculty Research, Amherst College
If privacy is the right to be left alone, threats come from discrete actions—warrantless search.
Catharine MacKinnon criticized the idea of privacy for its inattention to power. If privacy is protection from intrusion by gov’t, think about what happens in the space we label autonomous/free. Power does not disappear simply because something is labeled private. Today: privacy in relationship to autonomy, freedom, architecture of our social lives, and power.
Privacy: Observations from a Fifth Columnist
Kevin Haggerty, Professor of Sociology, University of Alberta
Moderator: Montré Carodine, Associate Professor of Law, The University of Alabama
Haggerty: not a lawyer, not in a law school. Sociologist/criminologist/interested in broad historical trends of privacy, power, surveillance. Effectiveness of the privacy infrastructure in ability to constrain the expansion of surveillance.
Surveillance: more than cameras. Data collection/visualizing practices. Searches, facial recognition technologies, data mining. Lots of people have talked about limitations that constrain particular surveillance technologies—he wants to consider the entire privacy infrastructure. On average, does it work?
Lived experience of privacy has been declining for a century (though this is empirically hard to evaluate)—can look at it qualitatively/quantitatively. Legal definitions of privacy are definitions of privacy violation, not privacy itself, and these are different things. Imagine an extreme exhibitionist who deliberately exposes every act and speaks every thought, recording on camera. No legal privacy violation, but her lived experience—data known to others—would be nonexistent.
Privacy serves as a vital check on authoritarian forms of rule/governance. These are inherent possibilities in any modern advanced Western nation. Our ability to remain opaque/unknown helps insulate us from extremes of institutional/organized repression. Unprecedented intensification of info capabilities of organizations carries with it stark possibilities for oppression.
Discursively we couldn’t do without the concept of privacy—it’s a concept that citizens, politicians, lawyers, journalists couldn’t do without as opposition to the concept of surveillance. It’s also institutionally successful—a whole series of organizations that take as their mandate the need to protect privacy—privacy officers, advocacy organizations; state sponsored organizations in Canada. We’ve never had more expansive privacy laws—but we’ve also never had more expansion of surveillance across every institutional realm—education, science, warfare. Increasingly central to governance.
US dealings with privacy tend to be more legalistic than other countries. Violation = go to court, versus administrative solution/privacy commissioner. But there are problems with this—slow, conservative, disproportionately able to be used by powerful interests. Groups aligned with greater surveillance tend to be powerful corporate/state actors. Even in court there are all kinds of limits.
Concerns about privacy tend to be more future oriented than pressing needs to increase profits, security, efficiency—always wrongfooted. No one wants to increase the realistic possibilities of terrorist attacks, but all kinds of issues are now framed as security issues—securitization—to insulate policy choices from criticism. (Securitization as increased/transfer of risk despite claims to limit it—I love the resonance with financial happenings.) Behind the curtain you often see abuses of power/the desires of powerful interests, not real security.
Canadian regulations: due process, not trying to curtail surveillance but to allow it while mitigating worst excesses. Bar is not particulaly high for many of these rules. Not just that they can’t control expansion, but actually empower surveillance by providing mechanism and legitimization for the expansion. Traffic rules: getting a license, obeying signs are not meant to stop traffic, but to create a system of vehicle flow. Likewise the structures around privacy. In fact, there’s really low compliance with regulations—having them doesn’t mean they work. Example: do not call, where people just offshored and ignored the regulations. Privacy advocates are constantly betting against the house. May have short term victories, but will ultimately lose. The odds are never in their favor. Especially now that informational capitalism has arrived on the scene.
Analogy: the enclosure movement in England that took away commoners’ usufruct rights in land. Big data wants as much data as possible and mine it for unanticipated connections. Thus, lobbying to change law so that collectors don’t have to specify uses in advance. Strategic use of privacy principles, particularly concerning consent. Consent has become a vehicle for allowing collection of data with gloss of legitimacy. “Data is oil of the new economy.” This should give you pause given our demonstrated inability to control institutional access to our other natural resources.
Potential counterargument: privacy is still robust. There is no way to measure this. But I’ve spent decades studying trends; we see the same thing but may perceive it differently. Expansion of surveillance is all around us, in the 500 terabytes of info into Facebook every day, 1 billion phone calls and emails collected by NSA every day, surveillance cameras now using facial recognition, satellites, and drones. Perhaps each can be justified. But that’s not his point. Each one reduces lived reality of privacy by degrees.
Too sweeping? There have been some important victories he wouldn’t want eliminated, but should also step back from nitty gritty. Big picture: series of surveillance surges. New tech expands surveillance; courts/administrators typically beat it back some but end result is expansion, cumulatively drifting in only one direction.
Resistance and change is important (he’s a Foucauldian), but capitalist organizations have demonstrated remarkable ability to secure the conditions of production.
You don’t have to believe in black helicopters to see the dangers of allowing organizations access to the minutia of our behavior. This is dangerous. Surveillance society that will be inherited by leaders in the future—we don’t know what they’ll do with that or what groups they’ll target. Already seeing this with China. Totalitarian regimes of 20th century relied on laughably rudimentary surveillance structures.
What is the alternative? There’s still value in diagnosis. Mitigate the rote way in which we say “let’s create more privacy laws/infrastructure.”
Carodine: African-American experience of police able to walk through their homes, question them. Invasion of privacy is one of the harms of oppression as well as one of the ways in which oppression is carried out.
Haggerty: Think about different surveillance dossiers/profiles. We’re now all under surveillance, but for different purposes and using different technologies. Surveillance can be useful or oppressive. Depending who you are, poor people are scrutinized differently—rich people are profiled financially. Children: what kind of privacy are they allowed? Rich opportunity to identify types of profiles.
Sarat: terminological questions. Talk more about fear. What happens if we replace every mention of surveillance with transparency? Jane Jacobs, Death and Life of Great American Cities: image of urban life driven by people on front porch, living under the gaze of others. Normatively desirable to her—versus definition of people relatively free from interpersonal or institutional scutiny in the paper. This most liberal imagining of what makes life good conflicts with Jacobs’ definition of what made a good life—talk about this? We should crave a space of freedom v. enriched forms of community.
Haggerty: Fear drives politics. Worries about alarmism, but thinks this is a concern. Inherent in these structures is something very disconcerting, and democratic traditions will not save us if/when things go wrong. The concern is not just that there will be law-violating patdown, but the massive empowerment of institutions’ ability to collect info and know populations individually and in aggregate.
Jacobs overlooked the oppressiveness of small communities—solidarity but also suppressive of divergence. Don’t be too romantic about small town communities (though that’s different from Jacobs’ cities in some important ways, including the ability to be private/unknown in public).
Sarat: transparency can be a way of describing surveillance—things become clear that weren’t otherwise clear, such as Amazon’s tracking. But on the other side: interested in transparency of campaign contributions. You worry about asymmetries in transparency—there’s nothing wrong in the transparency itself.
Haggerty: asymmetries of visibility are key. Would also call it the politics of visibility. Power matters a tremendous amount in terms of what groups get to insulate themselves from scrutiny for what purposes. He’d favor more knowledge of what the NSA is doing—not opposed to transparency at all levels. Rise of urbanization transformed everything: politics, race relations, how people found partners, how they found jobs. Surveillance is likewise transforming everything.
Q: tried to get legislature to prohibit sale of raw judicial information (information that wasn’t included in cases that went to trial) to commercial entities, and got nowhere. It’s not just information, but control of uses.
Haggerty: that’s a case study—when we have X information, what can people do with it/how can that be controlled? We don’t do well restricting access to info but do think about how it can be used. Big data is about finding unpredictable golden nuggets that might be useful and we worry about restricting them—e.g., finding best type of secondhand car (turns out it’s orange). Don’t know why/don’t care, just interested in correlation.
Q: reasonable expectations as degrading over time—maybe people are valuing privacy less over time.
Lisa Austin: it’s always context—you have different overlapping contexts of being known to certain people. Is privacy really shrinking in that light?
Haggerty: yes. Because one metric is whether you’re free from scrutiny. There are societies where you’re almost completely known by your groups, others less so. What you’re talking about is privacy as subjective violation—the subjective sense in which I believe that this info should be shared with X people and not with Y. This is a problem of definitions of privacy violation, which are incredibly subjective and vary across time. Privacy as objective, quantifiable thing in terms of the amount of information that can be known about people versus privacy as subjective (this is when I feel info has been shared inappropriately). (Hm, but then I don’t understand the claim he’s making about the change in privacy as lived experience. I thought the lived experience was at least subjective in the sense of affecting subjectivity, if not consciously so.)
Exploitative and inappropriate use is a consequence of getting as much information about people as possible—manipulation to sell as much as possible. This makes fair info exchanges impossible.