In a non-government context, privacy in the US is governed generally by narrowly defined common law torts plus very specific privacy regulations (COPPA, HIPAA, VPPA for example). Torts are utilitarian constructions—protecting property rights, the public good, etc. As such, privacy torts are more characterized by preventing economic harm through illegal or inappropriate actions (spying, blackmail, etc.) than the pure protection of personal information. If you’ve ever been angry when technology CEOs claim privacy is dead (and get over it!), it might be better to refocus one’s anger on the fact that privacy in a market context was never alive to begin with.

Let’s talk first about what’s protected by torts and why. William Prosser is helpful here. He argues that the legal right to privacy, as advocated by Warren and Brandeis, could be better categorized as lesser torts, and as such, lesser values. By combining these torts into an overbroad definition of privacy, Warren and Brandeis created something potentially destructive of the public good. Instead, Prosser classifies privacy torts into four categories, distinct from any abstract; they are: intrusion into private affairs, public disclosure of embarrassing private facts, placing the plaintiff in a false light, and appropriation of someone’s likeness. [1] These torts require that the individual be in a state of self-enforced seclusion, a state given up in almost every public interaction from going to the grocery store to shopping online.

In other words, privacy torts best protect individuals who have a monetary interest in controlling information (say, a celebrity) and who keep to themselves (say, private island). By regulating only the economic loss of information disclosure or the mental anguish caused by an act of surveillance as opposed to the act of information collection itself, privacy torts provide a kind of absolution for non-invasive surveillance. And in a strange reversal of Constitutional Law, you seem to have a greater right to privacy as a public individual whose information is valuable than as a private individual whose information is marginally interesting. Hooray for the 1%.

From Prosser’s almost reductionist argument for privacy, it’s easy to make a utilitarian or economic case against data protection. Richard Posner argues that a right to privacy allocates property rights in an economically deficient manner.[2] Personal information is most valuable in aggregate to a direct marketer and value-less to any given individual.[3] With overbroad data protection, the market would suffer because of poorly allocated property rights given the substantial bargaining costs with each individual.[4] In addition, individuals already show a “general reticence” to disclosing discrediting information, information that might be valuable to businesses or the public.[5] (Are you cool with wearing that FICO credit score and STD test lanyard to work? No? Why are you interfering with the efficient allocation of property rights, man?) All joking aside, one can see how this line of thought leads to little standard protection of personal information in a non-government context. It also illustrates very simply why there’s a) no initial limit on Internet data collection and b) little to no collective action or market incentive to prevent it. The default is zero.

In the next post in the series, we will examine how Warren and Brandeis influenced rights-based thinking and Constitutional Law.

[1] See William Prosser, “Privacy: A Legal Analysis,” Philosophical Dimensions of Privacy, ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 107. Originally published in California Law Review 48 (1960): 338-423. The reductionist philosophy can also be seen within Judith Jarvis Thompson’s writings. See Judith Jarvis Thompson, “The Right to Privacy,” Philosophical Dimensions of Privacy, ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 286-287. Originally published in Philosophy & Public Affiairs 4 (1975): 295-314.

[2] See Richard A. Posner, “An Economic Theory of Privacy,” in Philosophical Dimensions of Privacy ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 332-345. Originally published Richard A. Posner, “An Economic Theory of Privacy,” Regulation, May/June 1978, 19-26. Page numbers refer to the Schoeman anthology. See also Lessig, Code, 159-163. Oddly enough, Lessig too concludes by favoring a market-based approach to personal information, but he argues that all property rights should be vested in the individual. In that way, an individual can have as much or as little privacy as he or she may like, and property rights are used as a means to protecting privacy. I think this is indefensible and will provide a framework for my argument later.

[3] Ibid., 336-337.

[4] Ibid., 336-337.

[5] Ibid., 338.

My previous assertion on privacy and technology was the following: because we haven’t developed the value of privacy in US political and cultural thought in the same way that US society rallies around free speech, we haven’t imbued our technology or market transactions with the value of privacy protection . To use an example, if we aren’t going to get that miffed about extraconstitutional warrantless wire taps, then how can we be outraged over personalized ultra-savey grocery store coupons?

Although I think it’s true that society would benefit from a deeper philosophical understanding of privacy and personal liberty, my assertion also borders along that Orwellian slippery slope pervading the arguments of right to privacy proponents and often turning off more moderate citizens. More importantly, my assertion also ignores the historical legal context that got us here. We can start in the modern era with Warren and Brandeis who breathed new life into privacy via the common law. Note that this borrows heavily from the first chapter of my college thesis from May 2001 and owes a great deal to the influence of Viktor Mayer-Schönberger who pushed me to differentiate between societal desires for privacy and its normative state.

In their famous 1890 Harvard Law Review article, The Right to Privacy, Samuel Warren and Louis Brandeis conceived a modern notion of privacy asserting a “right ‘to be let alone'” for protection of the “inviolate personality.”[1] Upset by the ravenous nature of journalists and gossip columnists (Ye Olde TMZ), Warren and Brandeis laid out an argument for a right to privacy based on the common law that protected against intrusion of the private sphere. At the time, mass urbanization had brought large groups of people closely together, and new technology such as photography allowed for a new kind of public intrusion into one’s private sphere. Warren and Brandeis argued that “the intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.”[2]

Because “only a part of the pain, pleasure, and profit of life lay in physical things,” it was natural for law to move from the protection of tangible objects to intangible objects as they were recognized.[3] Warren and Brandeis were drawing a metaphor between the ongoing expansion of laws protecting intellectual property rights to a right to protect private information not just private property. Still they went further. The right to privacy of personal information did not derive its power so much from the protection of intellectual property, as the protection of intellectual property derived its power from the right to privacy.[4] Furthermore, they argued privacy was not property, “unless that word be used in an extended and unusual sense;” Warren and Brandeis saw fit to call the traditional relationship between privacy and property, a “fiction.”[5] This was an extraordinarily progressive reconceptualization of the individual citizen, and it stemmed from technological advancement shining just a slightly different light on society. As our use of technology also does today.

The Right to Privacy would have a profound effect on the relationship between the citizen and government in the 20^th Century through a series of US Supreme Court decisions. As well, Warren and Brandeis’s use of the English Common Law, a principle not uncommon to jurisprudence in the 19th Century, opened up and redefined the world of privacy torts wherein an individual’s rights to privacy did not arise “from contract or from special trust, but [as] rights against the world.”[6] As this series of posts continues, with breaks for sillier matters, I will examine this history and the split between the rights-based (or deontological) thinking that largely governs our actions as citizens in the public sphere and the utility-based (or teleological) thinking that largely governs market transactions between individuals (including those wily individuals, corporations).

[1] See generally Samuel D. Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193-220. The origin of the phrase ‘right to be let alone’ is duly accredited to Judge Cooley.

[2] Ibid., 196.

[3] Ibid., 195.

[4] Ibid., 205.

[5] Ibid.. 213.

[6] Ibid, 213.

“Who here wrote a thesis? That’s nice. A lot of hard work went into that thesis. And no one is ever going to care. I wrote a thesis—this is true, I don’t lie—“Literary Progeria in the Works of Flannery O’Connor and William Faulkner.” Let’s just say that during my discussions with Pauly Shore, it doesn’t come up much. For three years after graduation I wanted to show it to everyone, and so I kept my thesis in the glove compartment of my car, so that I could show it to a policeman in case I was pulled over.”  -Conan O’Brien, 2000 Harvard Class Day Speech

About fifteen years ago, I wrote my college thesis on the rise of digital rights management (then called trusted systems) and targeted digital advertising as technologies that collectively protect intellectual property and promote data gathering at the expense of privacy, whose economic value (and legal protection) is hard to pin down. In my opinion, these technological advances cast a new light on the relation between speech, privacy, and property in American political thought, and as such, I felt we could use them to think more deeply about what we really value as human beings. Unfortunately, all we’ve really learned is how to value human beings according to their data footprint. I even got to go along for the ride (see also, my work experience).

One of the things I want to do with this blog (while I fight against a lot of bird traffic through Vent No. 5) is revisit my thoughts from fifteen years ago and update them. Because the issues haven’t really changed, and the rise of “big data” and the advertising technology industry has been more pervasive than just managing access to digital media—now our communication is ad-supported too. In fact, if anything, media has been a victim of the ad tech industry (a subject for another time). The normative state of privacy, especially in private transactions governed by Google, Facebook, Amazon, et al., may be dead for now, as they love to tell us. But the societal desire for privacy is alive, and it can be characterized, at its heart, by the rights-based thinking and philosophy that underpins the US Constitution.

Why do we support the First Amendment with such gusto and we often turn a blind eye toward violations of the Fourth Amendment? Why do we think of the First Amendment as a firmly American value that we take with us into the private sphere (where the right has no bearing), and we ignore the values underlying the Fourth Amendment when we transact there? Why do we build technology that supports free speech (bringing wonderful gains the world over), and then we ignore the right to privacy in the technology we build? Perhaps there’s a like a step function in the bill of rights. 100% of Americans like free speech. 50% of people like guns. No one gives one whit about quartering soldiers (Raise your hand if you even know what the Third Amendment protected. Thought so.)  and so on down. In my next post on this subject, I’ll delve into the history of a right to privacy with a special emphasis on Warren & Brandeis.

One of my best friends likes to argue that the generational dividing line between his wife and him is the Cold War. His view is shaped by the potential for nuclear holocaust that was suddenly lost in a haze of flannel, coffee, and overproduced garage rock. Growing up primarily in the 80s, I think of his and my shared experience in pop culture spectacles such as The Day After, WarGames, Red Dawn, Rocky IV, and so many others, all of which I remember through very young eyes. It didn’t matter if you were scared by the thought of nuclear holocaust or rejected the concept. American life held this conceit. As such, even anti-war films come across as propaganda that promulgated a scary ReaganThatcherMilitaryIndustrialComplex status quo, and I can still recite the (brief) dialogue of Rocky IV and hum Vince DiCola’s synths along with the montages.

One of my other best friends studies post-WWII Italy and France through the literal lens of the neorealists filmmakers as well as philosophers such as Hannah Arendt and Simone Weil whose books are scattered about her house. The constant presence of these books is almost like one of those military challenge coins; if she were to be caught without The Banality of Evil in one of the six bags of books she carries around, I believe she’d have to buy shots for the entire Academy. And the Academy is large, poor, and thirsty. But I digress. American film showed us the possibility of nuclear holocaust, something tangible and scary, but in the same way zombie movies are scary or, you know, the boogie man. The true danger of totalitarianism (saving us from value judgments about communism vs. capitalism, etc.) was probably closer to Arendt’s view, here in twitter form: that it derived from thoughtlessness, promulgated the death of internal dialogue, and ended with dehumanization finally directing us toward dystopia.

So say you want to make a film that captures the terror of a totalitarian regime. It’s easier to have Ivan Drago kill (1985 spoiler alert) Apollo Creed in a Las Vegas boxing ring than it is to show the slow death of personal liberty in East Germany (unless it involves Disney and hot air balloons). So too is it easier today to make an argument for security as derived from Palantir-powered surveillance which allows Carrie Mathison to both capture and also (2011 spoiler alert) have PTSD sexytime with sympathetic terrorists than it is to show the death of privacy by a thousand cuts, by a million little brothers as they’re called, or several big ones. And that’s a problem, too, if all you can prove about privacy is the potential for Orwell and slippery slope fallacies. Totalitarian dystopias are interesting, but only when they say something bizarrely accurate about the times in which we live now; otherwise they too feel like so much science fiction.

That’s a lot of references for now (and I didn’t even get to address why Dr. Strangelove is successful on so many levels), but expect some more here on the philosophical aspects of privacy / personal liberty, in addition to the usual blogginess.