The Value of Privacy

Perhaps the most important legacy of Foucault and Postmodernism is to have made the business of critique much more difficult and complicated than it was back in the days when all workers wore white hats and all capitalists black. Today one has become wary of seeing any cultural, social, or political value as simply good in itself and worthy of protection, without investigating the extent to which it participates, however unwittingly, in a larger regime of power, inequality, and exploitation. Hegel had long ago pointed out that the master and the slave need each other. Each helps to make the other who he/she is. They work together in order to construct and maintain a certain regime of knowledge and power without which neither of them could exist. Postmodernism, of course, does not share Hegel’s optimism that contradictions will be resolved by progress, or even Marx’s faith in revolution. If critique is still to be possible, then it cannot take the easy route of singling out the bad guys, but must lay bare the many complex interdependencies that together constitute a society in its entirety. That this is a hard lesson to learn is illustrated by the lengthy report of the Committee on Privacy in the Information Age established by the National Research Council Engaging Privacy and Information Technology in a Digital Age (edited by J. Waldo, H. S. Lin, L. I. Millett, 2007).  Admittedly, the Committee does not understand its mission to be the elaboration of critical social theory. Nonetheless, it aims to “raise awareness of the spider web of connectedness among the actions we take, the policies we pass, the expectations we change , the ‘flip side’ of impacts policies have on privacy.” The aim of the Committee is to “paint a big picture that would sketch the contours of the full set of interactions and tradeoffs” and “take into account changes in technology, business, government, and other organizational demand for and supply of personal information…” (20).

The upshot of this ambitious program is that privacy as an undeniable and inalienable personal and social value that demands to be protected by law. This view is echoed on the international level in the Report of the Office of the United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age (2014), which declares that “there is universal recognition of the fundamental importance, and enduring relevance, of the right of privacy and of the need to ensure that it is safeguarded, in law and in practice” (5).  The underlying assumption of both reports is that whatever may be wrong with society, privacy is not part of the problem. It is the solution. A solution that must at all costs be defended against threats arising from the digital transformation of the 21st Century. This raises at least two important questions. What is the value that privacy has for individuals and society? Why has privacy become a central issue in understanding the global network society?

The answer to the first question concerning the value of privacy is acknowledged by all to be extremely difficult, because there is no such thing as privacy in general, abstracted from the many different contexts in which the loss of privacy might lead to harms for persons and for society. The Committee report formulates this situation as a paradox stating that privacy “is an ill-defined but apparently well-understood concept” (21). Despite being “well-understood,” the report admits that “specifying the concept in a way that meets with universal consensus is a difficult if not impossible task…” (21). Accordingly, the Committee finds that “Privacy is an important value to be maintained and protected, although it is not an absolute good in itself” (308). Instead of basing the value of privacy on an absolute good as does Article 12 of the Universal Declaration of Human Rights, the Committee takes the more pragmatic route of offering a list of concrete examples that are intended to illustrate the value of privacy by showing the adverse effects of its loss.

In the Committee’s view, a major harm arising from the loss of privacy arises from crimes such as fraud, identity theft, and stalking. If personal data such as name, address, telephone number, social security or credit card number, etc. become accessible or are stolen, this can harm individuals. Even if a data breach does not lead to real harm, whether financially or socially, simply knowing that hackers have gained access to personal data can cause anxiety and foster mistrust in the institutions that have been hacked. While no one would dispute that hacking is harmful, it is at least questionable if this is a privacy issue. Whether burglary or hacking, stealing something from somebody or misusing information to cause harm is in the first place a crime and not a violation of privacy. It seems beside the point and at best redundant to add a violation of the right to privacy to the already serious crimes of theft and fraud. In addition to this, the issue in cases such as these is much rather data security than privacy. The problem is twofold. On the one hand there is the negligence and irresponsibility of hardware produces, software developers, internet service providers, and organizations of all kinds and at all levels that allow hackers relatively easy access to personal data. On the other hand, an inadequate regulatiory, legal, and law enforcement situation makes misuse of data profitable and tempting. These are not privacy problems. Data is what needs to be protected and not privacy, whereby data protection need not mean restriction of access, but more importantly identification and prosecution of misuse of information. By focusing on privacy, the immense problem of inadequate data security coupled with legal unclarity and ineffective enformcement is overlooked or minimized. In this example, the “value “of privacy seems in the end to lie in diverting attention from focusing on problems of data security and weak deterents to misuse of information and thus inadvertently maintaining the status quo. Instead of recommending enforceable accountability and data security the Committee seems to assume that lawmakers, regulators, and courts need not go after those who negligently allow hackers access, or even the hackers themselves. Instead, individuals are told to look after themselves. The harms that are said to arise from loss of privacy seem to come more from lack of accountability, lack of clear legal sanctions, an unwillingness to effectively prevent or prosecute cyber criminality, and in general from an avoidance of the real issues facing the network society.

A further example of the value of privacy cited by the Committee lies in the common belief that “under public surveillance, many people change their behavior” (309). This well-known “chilling effect” (310) of surveillance means that when people are observed by others, this “often has the effect of influencing the behavior of people in the direction of greater conformity and homogeneity” (309). Privacy, therefore, protects society against conformism and thus “supports many democratic social values, such as the right to freely associate, the embrace of social diversity, and even the use of secret ballots in support of free elections” (310). Although practically no one would disagree that privacy serves these goals, the question of whether it is the best way to do so can be raised. How can politically effective free associations, the acceptance of diversity, and free elections be guaranteed by meeting anonymously in secret places, and disguising one’s religious beliefs, sexual preferences, subcultural affinities, etc. in public? Furthermore, can we really speak of free elections and democratic processes, when the only way to avoid political retribution and coercion is by means of secrecy? Has society not learned to “embrace diversity” by just the opposite of secrecy? If women, homosexuals, minorities, and other diverse people and groups had remained in hiding and not carried their differences into the public arena and demanded acceptance and respect, racism, bigotry, discrimination, and inequality would have remained unchallenged. Justice and equality have not been attained by secrecy. Only by “coming out” have minorities been able to gain respect and equality before the law. This fact casts doubt on the supposed value of privacy. It also challenges the common assumption that surveillance leads to conformism. It may be that surveillance has a chilling effect on some people, but it may well be that for many others it does not. How otherwise can we explain the everywhere visible celebration of diversity in today’s world under the equally ubiquitous regime of surveillance? The value of privacy seems to lie in supporting and maintaining a hypocritical society in which social ostracism and discrimination are accepted as unchangeable facts. Instead of recommending that people attempt to disguise who they are in order to avoid discrimination and repression, the Committee could have recommended stronger laws and more effective measures against discrimination.

A third example of the value of privacy that is cited by the Committee is harm that is done by workplace surveillance. Workers are not trusted and “are treated like children” (310) which leads to dissatisfaction and stress. Although there are many different reasons for employee monitoring, such as performance tracking, compliance, security, business intelligence, and even employee well-being, the problem addressed by the Committee is real. The value of privacy in this view lies in preventing workers from being reduced to mere functions that can be constantly monitored. The value of privacy is based upon the assumption that human dignity, respect, freedom, and a certain degree of autonomy can only be achieved by invisibility. If human dignity can only be preserved outside of observable work, one must ask whether the real problem does not lie in an exploitative economic system instead of loss of privacy. To locate the value of privacy in maintaining blind spots amounts to instrumentalizing privacy as a surreptitious support of dehumanizing labor. As long as there are sufficient blind spots allowing workers to become invisible during the workday, we can live the present situation. If workers are allowed to disappear, to have islands of freedom and autonomy, if only to smoke a cigarette, then the system need not be fundamentally changed. Privacy seems to be a value precisely because it makes the system livable without challenging its basic inhumanity. Instead of warning against workplace surveillance, the Committee could have warned against inhuman labor conditions which are the reason why workplace surveillance can become problematic in the first place.

Along similar lines of thought, the Committee finds a value for privacy in secret voting. This is because “a voter without privacy is subject to coercion” (310). If those in power discover that a particular person voted against them, this person could be subjected to retribution. Coercion and retribution are obvious abuses of political power. At a time when clear laws and effective accountability were not yet in place, privacy in the form of secret voting supported democratic procedures. The problem, however, is not a problem of privacy, but the toleration of the abuse of political power. Upholding the value of privacy as a way of escaping political retribution, amounts to accepting the abuse of political power as a fact that cannot be changed. Again, the value of privacy lies in its complicity with a corrupt political system and an inadequate system of justice. What is needed is not more privacy, but clear laws, effective accountability, and transparency, instead of secrecy, on all levels.

The fifth example of the value of privacy is the often cited use of personal information for purposes of advertising. “The availability of personal information about an individual enables various organizations to provide him or her with information or product and service offerings customized to the interest and patters reflected in such information.” (310). Let us begin by stating that it is difficult to find a problem with personalized advertising. Advertisers have always conducted customer profiling. How else are they to know who might be interested in buying their products. In general, the less that is known about customers, the more irrelevant, useless, and wasteful is the advertising. Dumb advertising is usually referred to as spam. Smart advertising offers a person those products and services they might truly be interested in. Thus saving everyone, both customers and advertisers money and effort.  So where is the need and value of privacy? What harm comes from personalized products and services? The Committee refers to a situation in which a person is targeted with advertising for a specific medication which could lead to social stigmatization when family members or others find out the person has a certain, socially inacceptable, disease. Often cited in the privacy literature is the case of a teenage girl who received offers of pregnancy products to her home, before her parents knew that she was pregnant. It is undeniable that social ostracism and stigmatization are harmful. But here again, one must ask if secrecy is the best solution. Would it not be better to confront prejudices and deal with the real social problems instead of attempting to use privacy to avoid conflict? Sooner or later the family will find out what the disease is, just as the parents of the pregnant teenager couldn’t be kept in the dark for long. The supposed value of privacy in such situations would seem to amount to surreptitiously supporting prejudice and practices of social ostracism by not facing them openly.

Throughout the entire privacy discourse medical information is considered especially “sensitive,” since it can lead not only to stigmatization, but also to discrimination in obtaining healthcare services or health insurance. As the Committee notes, “Adults who purchase health insurance often assert privacy rights in their medical information because they are concerned that insurers might not insure them or might charge high prices on the basis of some information in their medical record.” (312)  The value of privacy in this case amounts to the right to withhold information, that is, to lie, so that one gets a better deal on insurance. Similar situations can be cited in education, where young people do not disclose certain information in applications to schools, or in applying for jobs, where not only medical information, but information about religious affiliation, sexual preferences, political views, etc. are considered private. In order to avoid discrimination, gain access to products and services, save money etc., it seems perfectly acceptable to invoke the right to privacy. The value of privacy in many such situations appears opportunistic and counter-productive with regard to correcting social inequality. Instead of openly criticizing an opportunistic healthcare system and discriminatory practices in education or employment, invoking the right to privacy accepts and condones these practices and structural inequalities. Privacy becomes valuable as a means of “gaming the system.”

Finally, just as personal information can be used by advertisers to target specific persons or groups with personalized products and services, so too can this information be used to profile persons and groups for many other purposes. Apart from the obviously discriminatory use of profiling, for example, denying services to homosexuals, afro-Americans, Latinos, Jews, Muslims, etc., one such purpose that the Committee mentions is political profiling. “…political campaigns can use collections of personal information to tailor different massages to members of different groups that are designed to appeal to their particular views and attitudes” (311). This is nothing new. Political campaigns have always tried to tell people what they want to hear. How else are they going to motivate them to vote for their party and their candidate? Where is the harm that comes from loss of privacy? Given the open access to many sources of information and many different media in democratic societies, and the ever watchful opposition, even politicians have to maintain a minimum consistency in their messages. Only a society that openly acknowledges political discourse to be a lie and accepts manipulation of the media would need to invoke the right to privacy in order to insure the honesty of political candidates.

In summary, the value of privacy seems to derive mostly from its complicity with and surreptitious support of a society in which discrimination, bigotry, opportunism, exploitation of labor, and abuse of political power are taken as a fact that can only be mitigated by work-arounds and fix-ups that create a more or less acceptable way of living with an admittedly unjust situation. Perhaps what is needed is a new interpretation of privacy for the digital age, an interpretation that is not based on the seemingly unchangeable and unchallengeable structures of the bygone industrial age. Privacy arose in the European Enlightenment historically together with the public sphere. The private as well as the public are structures of Western modernity that interdependently support each other. Together they are based on an economy of scarcity in knowledge and hierarchical communication. Both of these fundamental conditions of society have been called into question by the digital transformation. Knowing everything about everybody and many-to-many communication are game changing. A society in which there are no secrets and everybody can communicate with everybody at once no longer needs to compensate informational asymmetry and hierarchical power by means of work-arounds such as privacy. In such a society knowledge can no longer be power and secrecy no longer guarantees freedom. Attempting to re-affirm the central values of freedom, autonomy, and dignity by reinstating an outdated and dysfunctional notion of privacy can hardly be an adequate response to the challenges of the digital transformation. Nevertheless, this seems to be what most present day discussions of privacy and much new privacy legislation are trying to do. There is no doubt, privacy is important, but perhaps not for the reasons that are usually offered by privacy advocates today. Maybe it is time to admit that privacy cannot save the old world. This does not mean, however, that privacy is dead, and that engaging privacy in the digital age is irrelevant. On the contrary, the heated debate on privacy today is an indication that privacy is a pivotal point in the digital transformation. Perhaps privacy is like a bridge from the old world to the new. It could offer the opportunity to pose the question of how freedom, autonomy, and human dignity are to be defined in a society that is not conditioned by scarcity of knowledge and one-to-many communication. This may be a good answer to the second question posed above: Why has privacy become a central issue in understanding the global network society? On the one hand, most arguments for the value of privacy are woven into the values and structures of modern industrial society. They depend on scarcity of knowledge and asymmetrical communication. On the other hand, it may be that we will only be able to solve the problems of the global network society if privacy can find a home in a world governed by network norms such as connectivity, the unforeseeable flow of information, many-to-many communication, participation, authenticity, and transparency.