A Premature Eulogy for Privacy

EVERY SO OFTEN a sound critical thinker and superb writer asks the wrong questions of a wheel-spinning topic like privacy and then draws the wrong conclusions. This is the case with Firmin DeBrabander in his Life After Privacy: Reclaiming Democracy in a Surveillance Society. Professor of Philosophy at the Maryland Institute College of Art, DeBrabander has a gift for clearly expressing complex ideas and explaining why underappreciated moments in the history of ideas have contemporary relevance. In this book, he aims “to understand the prospects and future of democracy without privacy, or very little of it.” That attempt necessarily leads him both to undervalue privacy and make a case for accepting a severely weakened democracy.

To be sure, DeBrabander doesn’t dismiss privacy with any sort of enthusiasm. On the contrary, he loves his privacy, depicting himself as someone who has to block his “beloved” but overly disclosive students on Facebook. “If I had my druthers, my personal data would be sacrosanct,” he writes. But he is convinced privacy is a lost cause. He makes what are essentially six claims about privacy — some of them seemingly obvious and others more startling — to buttress his eulogy.

Prosecuting Privacy

It’s worth listing DeBrabander’s six propositions here before then rebutting or at least complicating their veracity. The first privacy proposition repeats what has become a seeming truism: we’re living in a “confessional culture” that normalizes oversharing. His second has two components, both much discussed in the last several years: companies participating in the “surveillance economy” have an insatiable appetite for our personal information, and consumers don’t fully comprehend just how much value these companies are able to extract from it through data analytics. He emphasizes Charles Duhigg’s much-discussed 2012 New York Times article about Target using predictive analytics on big data to identify pregnant customers and present them with relevant coupons. Consumers, he contends, will continue giving away massive amounts of personal information to make their cars, homes, cities, and even bodies smarter; it’s likely they won’t be any more equipped in the future to assess tradeoffs and determine when they’re being exploited.

His third privacy proposition is closely linked to his second and has also been much discussed by others. Consumer privacy protection laws are doomed to be ineffective because they’re fundamentally locked into a “privacy self-management” paradigm that presupposes an “illusion of autonomy.” In the United States, for example, the notice-and-consent regime of privacy protection allows companies to create opaque “terms of service” agreements that are designed to overwhelm uncomprehending consumers who lack the bargaining power to negotiate with take-it-or-leave-it offers. DeBrabander doesn’t hold out more hope for citizens who are given privacy protections under the European Union’s General Data Protection Regulation (GDPR).

DeBrabander’s fourth proposition: some of the companies providing government agencies with business intelligence services, as well as access to surveillance technologies and surveillance data, are eroding citizens’ privacy. This problem, he predicts, is poised to intensify. For example, given the massive number of surveillance cameras in the United States, it’s naïve to expect that democracies won’t struggle to prevent domestic policies from replicating aspects of the Chinese government’s aggressive approach to monitoring citizens. “[C]orporations and law enforcement are already using facial recognition technology in a variety of ways,” he states. Specifically, “police have used facial recognition technology to expedite identification of criminal suspects, and airports have used it for similar ends.”

His fifth proposition is his most startling: activist history can explain why privacy is not a “necessary condition” for protecting political freedom, including the freedom collectively to lobby for social and legal change that promotes justice. DeBrabander insists that we’ll come to a counterintuitive conclusion if we carefully examine what civil rights activists of the 1950s and 1960s accomplished while being oppressed, or examine the gains secured for workers’ rights by an early labor movement besieged by malevolence. “The lesson is that the ability to organize securely in private, and speak, and explore controversial ideas, this is not so much the prerequisite for freedom, as it is the fruit of liberation movements.” In other words, collective action, a paradigmatic form of political participation, has not always required “the benefit or luxury of privacy.”

The sixth privacy proposition is the most philosophically interesting: the modern conception of privacy is a recent historical invention, not an enduring value or original virtue. It’s tethered to a mythological construct — namely, to an isolated, autonomous subject who needs to be protected from society and can only reap the benefits of privacy by retreating inwardly to discover an authentic voice uncontaminated by external influences. DeBrabander traces the origin of this conception of the self to Supreme Court Justice William O. Douglas’s appeals to the right to privacy in cases like Griswold v. Connecticut (1965) and Papachristou v. City of Jacksonville (1972). Douglas’s view is influenced, he argues, by the hyperbolically self-reliant, American vision of liberal individualism espoused by Henry David Thoreau and Ralph Waldo Emerson, whose intellectual roots he traces to interpretations of Stoic philosophy and religious prayer. Because privacy scholars and activists continually promulgate this “Romantic Lie,” DeBrabander insists they make “privacy protections […] hard to justify, and easy to surrender.”

Defending Privacy

Tellingly, the only scholarly source he cites that challenges his first proposition in particular is danah boyd’s seminal book, It’s Complicated: The Social Lives of Networked Teens (2014). It argues that the rampant use of social media need not signify the death of privacy. Although boyd conducted extensive empirical fieldwork, DeBrabander rejects her observation that teens deliberately deploy diverse strategies to protect their privacy. boyd contends that kids sometimes disclose lots of information for purposes of obfuscation: to make it hard for prying eyes to differentiate signal from noise. To dismiss this finding, DeBrabander dogmatically asserts, “I am generally dubious that it is so strategic and premeditated. […] It’s hard to see it as being much more than instinctual and reflexive, at this point.”

This is a serious methodological problem. If DeBrabander aspires credibly to justify zeitgeist-level assertions about what people believe and what motivates them to act, he needs to move beyond armchair philosophy. Due diligence requires considering the rich literature of internet and communication studies to get an informed picture of how people actually converse over different digital media and platforms, including by setting up protected accounts, using private messaging, and creating ephemeral messages that are set to expire. By now, it’s common knowledge that kids and celebrities alike create fake Instagram accounts, colloquially known as “finsta” accounts, to avoid context-collapse and maintain the freedom of revealing different sides of themselves to different audiences. At face value, this phenomenon suggests not all social media users, including members of Generation Z, have concluded privacy is passé.

I don’t want to inflate the significance of finsta accounts. Even if the information revealed on finstas flies under the radar of parents, peers, employers, and fans, it’s not shielded from Instagram. Still, even taking this limitation into account, the following point remains true: DeBrabander can’t make credible claims about pervasive outlooks if he ignores the privacy aspects of notable trends and fails to grapple with nuanced sociological and ethnographic studies about technologically mediated communication.

Skipping ahead to his fifth proposition (before then backtracking), his interpretation of activist history is cloyingly rarefied. While he sticks to factually true observations, he gratuitously revisits in extremis moments of American history, when people risked everything for justice, to make the point that privacy isn’t “necessary” for exercising political freedom. DeBrabander actually comes close to admitting their irrelevance to our current context when he offers two concessions: he would not “trade places with earlier generations, and [their] struggle with constraints on personal freedom” and the sacrifices these people made doesn’t prove “we should tolerate such constraints today.” Noting these points, DeBrabander should have concluded that if the United States remains committed to democracy, it ought to strive to enact the best possible version of it, including by protecting privacy that helps protesters demand justice.

Let’s consider a current example relevant to his fourth proposition. DeBrabander acknowledges that facial recognition technology poses serious threats to democracy, not least because of expansive partnerships between government agencies and technology companies. However, he brushes past the reasons why many civil society organizations, academics, and activists, including the American Civil Liberties Union, rightly claim “face recognition surveillance presents an unprecedented threat to our privacy and civil liberties. It gives governments, companies, and individuals the power to spy on us wherever we go — tracking our faces at protests, political rallies, places of worship, and more.” Since DeBrabander is especially interested in collective political action, it’s instructive that so much concern was expressed about the police using facial recognition technology to retaliate against Black Lives Matter protesters. Along with others, Albert Fox Cahn and I warned that police abuse and disproportionate impacts have historical precedents, the abuses might take a long time to come to light, and even journalistic coverage could lead to harassment. Following DeBrabander’s logic would lead to the following callous conclusion: the concerns are justified but citizens living in democracies should accept that privacy protection isn’t, strictly speaking, necessary; if things are bad enough, people will risk their lives to speak out against injustice. And yet, there’s a growing movement to ban law enforcement from using facial recognition technology in the United States. The movement wouldn’t be occurring if society gave up on privacy or gave in to callousness.

Perhaps the strangest aspect of DeBrabander’s sixth argument that privacy defenders overestimate autonomy is that he approvingly cites Julie E. Cohen’s 2013 Harvard Law Review article, “What Privacy is For,” as supporting evidence for his case. To be sure, Cohen shares DeBrabander’s concerns. She identifies the same blind spot in privacy theory as he does and declares that “the liberal self who is the subject of privacy theory and privacy policymaking does not exist.” But Cohen doesn’t rest her case on this observation. She aims to reinvigorate discussions of privacy, not cast them into the dustbin of history. “The perception of privacy as antiquated and socially retrograde is wrong,” she declares, before ultimately defending the value of privacy by identifying a central good that it provides: breathing room.

The self who benefits from privacy is not the autonomous, precultural island that the liberal individualist model presumes. Nor can privacy be reduced to a fixed condition or attribute (such as seclusion or control) whose boundaries can be crisply delineated by the application of deductive logic. Privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development. So understood, privacy is fundamentally dynamic. In a world characterized by pervasive social shaping of subjectivity, privacy fosters (partial) self-determination. It enables individuals both to maintain relational ties and to develop critical perspectives on the world around them.

While DeBrabander is right that many accounts of privacy at least implicitly overestimate how much autonomy individuals can possess, Cohen’s analysis clarifies why he fails to appreciate the personal, interpersonal, and political value of people exercising comparatively greater control over their lives, however modest their gains in personal agency might be. To be more precise, DeBrabander fails to take into account “breathing room” when he theorizes about deficiencies in privacy theory. At an experiential level, however, he clearly recognizes its necessity. Had he done a better job exploring this divergence between his lived experience and his theoretical commitments, he could have written a much better book.

Consider an admission he makes that he and his wife “cherish moments of privacy.” However fleeting these “moments” might be, they’re opportunities to step away from other people, experience intimate connection, and, on occasion, exercise “relational autonomy” through dialogue-facilitated collaborative decisions. Let’s imagine them experiencing one of these moments of breathing room while taking a short walk and discussing what they should do to help their children thrive. Of course, we’d be letting our imaginations get away from us if we entertained the possibility of this walk magically wiping away the social prejudices and socially inherited ideas they have internalized, including perspectives on proper parenting and what it takes for offspring to be truly successful. But under status quo conditions, this conversation can occur without their children, friends, and co-workers listening in and without tech companies and the government monitoring them. Consequently, they can experience greater freedom to candidly and experimentally consider possibilities than if they were being observed. And they can benefit from this liberty without retreating into the private realm of “defiant individualism,” which is how DeBrabander’s theory stipulates they’ll behave.

Woodrow Hartzog and I characterize “obscurity” as a type of privacy that people routinely take for granted in situations like this one — where people don’t hide out in remote areas alone but have intimate conversations in public, speak in inconspicuous tones, and can reliably assume the people around them are too focused on their own lives and the etiquette of civil inattention to eavesdrop. In these cases, obscurity isn’t protected by privacy law or expectations of confidentiality and secrecy; the safeguards are norms and transaction costs, the latter referring to the difficulty of monitoring other people’s conversations without drawing attention to yourself. Both norms and transaction costs can change. In the future, it’s possible that when DeBrabander and his wife walk together they’ll be strolling around a smart city surrounded by surveillance cameras linked to facial recognition, facial characterization, and lip-reading software. The facial recognition algorithms will identify who they are, the lip-reading algorithms will identify what they’re saying, and the facial-characterizing algorithms will infer what emotions they’re experiencing. If privacy stops being valued, this information can be widely shared. Perhaps, then, public spaces will no longer be sources of breathing room. Fortunately, countries like the United States have not embraced ubiquitous facial surveillance. Continuing to fight for privacy is the only way to ensure they don’t.

This leaves us with his third privacy proposition — his skepticism about consumer privacy law. He doubts it can be effective because it relies upon a broken model of consent. While DeBrabander’s criticism is well founded, he draws the wrong conclusion after characterizing it as a legal Achilles heel. His mistake here is like his lack of due diligence when engaging with Cohen. Far from being the first person to discuss the problems consent poses, he repeats allegations made by other privacy scholars. For example, Hartzog makes “The Case Against Idealising Control,” and, along with Neil Richards, identifies “The Pathologies of Consent.” But rather than giving into regulatory despair, the two of them also propose an alternative vision for privacy law, one that’s based on “taking trust seriously.” While DeBrabander isn’t obligated to endorse their vision or anyone else’s, at the very least he does need to engage with some critical responses to the consent problem if he intends to justify his characterization of it as an insurmountable flaw, or at least something close to it.

Far from being unique to contemporary digital discourse, the death of privacy is a longstanding trope. Like so many other announcements of its passing, DeBrabander’s announcement reminds us why privacy is hard to safeguard. But this eulogy, like its predecessors, is premature.

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Evan Selinger is a professor of philosophy at Rochester Institute of Technology.