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May 18, 2000

The Rhetoric of Privacy

Undergraduate honors thesis, Carnegie Mellon Univ., 2000.

PDF of the full paper: http://ellenbeldner.info/portfolio/beldner.RhetoricOfPrivacy.pdf

Modern Americans have three primary understandings of privacy or private. First, we have the notion that privacy indicates civic status: a private home is a building not open to general members of the community. Second, we understand privacy to mean secrecy: what a person seeks to preserve as private is something that she sequesters from others’ view. Finally, we use privacy to indicate some level of personal autonomy, as with our notion that the “right to privacy” protects our ability to choose particular types of medical care without interference from political authorities.

The second and third senses of privacy today represent very powerful cultural notions. For this reason each is rhetorically appropriated in unusual situations; additionally, the rise of the computer culture in the 1990s has made the notion of privacy-as-secrecy almost compete with the notion of a “right to privacy.” Both of these stages of discourse compete for use of the word privacy, and as a result, both discourses are clouded. Referring to the “right to privacy” as the “right to self-determination” is a more precise way to discuss that right and thereby clarify both debates.

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Nineteen Eighty-Four concerns itself with Winston’s attempts to subvert the state’s control over his life. Each time Winston does this, he must remove himself from Big Brother’s scrutiny, for if he is observed committing Thoughtcrime he will be punished. Frequently we hold things as “private” if we can be held liable for them, legally, socially, economically, or otherwise, but are not harming other people: most nose-pickers do so in the solitude of their bathrooms due to the social stigmas attached to that particular activity, just as a person performing oral sex in Minnesota must take care that the police do not see him or her, since it is technically a crime.

Anthropologist Michel Foucault explicitly discussed the relationship between surveillance and authority in “Panopticon,” a chapter in his 1975 book Discipline and Punish: The Birth of the Prison. Surveillance breeds conformity, he argues, by the individual’s fear of authority. Foucault illustrates the idea of total surveillance—a constant lack of privacy as secrecy—using Bentham’s panopticon, an “architectural figure” in which “visibility is a trap,” (Foucault, 200). The panopticon is a prison-like structure, but criminals are not tossed into dark cellars. Rather, they are imprisoned in rooms illuminated with windows and light. All these cells face inward towards a central observation tower; the tower is constructed so that no one outside its walls can tell whether or not there is someone observing. Just as with the telescreen, there is no way for the observed to know when, or if, he is under observation; but the possibility exists that at any given moment he is being watched. Hence, with the specter of punishment for rulebreaking hanging over his head, he has no choice but to conform to whatever rules are placed upon him. Surveillance makes us constantly check our behavior. If we can escape surveillance we escape both internalized and external disciplines: controlling privacy-as-secrecy allows us to exert personal autonomy without fear of retribution or consequence.

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Our culture is additionally replete with “exhibitionist” behaviors that implicitly accept the Orwellian/panoptical role of privacy in power relations. One of the many forms of power is social power, expressed by condemnation or acceptance from those one wishes to emulate or please....

Surveillance is antithetical to privacy because it exposes behaviors to the view of those who might use or exert their power over the observed. This can apply to behaviors that the actor finds acceptable, such as homosexuality, closet nose-picking, or recreational drug use; it can apply to behaviors that even the actor condemns in herself, perhaps murder or adultery. The common factor in seeking privacy is that the actor does not wish to face punishment for the behavior, above all other things. And so he seeks secrecy, “privacy.” Sometimes this desire to escape punishment is not primary to the human psyche: martyrs of many sorts engage in activities they know will elicit punishment, but because the martyr believes that those behaviors must be held aloft as somehow noble or at least non-shameful, she is willing to expose their behavior and accept the corresponding punishment. Often this is done in the hopes that if the public realizes how many of its members engage in this behavior, it will no longer condemn it as a marginal activity.

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The legal notion of a right to privacy began, it is widely credited, with an 1890 article in the Harvard Law Review. The article, written by Samuel Warren and later-to-be Supreme Court justice Louis Brandeis, focuses on “the right to be let alone” (a phrase which Brandeis did not, in fact, coin; Brandeis was quoting one Judge Cooley). Brandeis and Warren begin the body of their argument with a discussion of intellectual property rights. They cite a British case from 1849 in which etchings made by Prince Albert and Queen Victoria were protected not just from reproduction, but from description and cataloging. No one else was allowed to know about the etchings, as they were deemed the private property of the Prince and Queen. But the central point that the authors make is that traditional property rights were not adequate: there was some other principle, not yet stated as legal edict, which would ensure that certain “indecencies” being perpetrated would not go unpunished. They called this the “right to privacy,” construing it to have the power to protect the property of man’s spirit, feelings, and intellect—an addition to the existing protections given to tangible property.

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Although Brandeis was the dissenting voice in Olmstead, he was vindicated a generation later in the 1967 case Katz v. United States (389 U.S. 347 (1967)). The justices in Katz drew heavily on Brandeis’ right to privacy, citing both the Harvard Law Review article and the Olmstead dissent. Thus, the right to privacy-as-secrecy in the face of government searches became the de facto meaning of the Fourth Amendment for a period of time. But the greater revolution, that of privacy-as-autonomy, happened with the 1965 court case Griswold v. Connecticut (381 U.S. 479 [1965]). By that time, the idea that there was some general right to personal autonomy had crept to the edges of the legal field: “in the 1920s, the Supreme court held that ‘liberty’ encompasses a parent’s right to make certain decisions about his or her child’s education without state interference...” (Alderman and Kennedy, 55). In the Griswold case, the director of Connecticut’s Planned Parenthood (Griswold) and the organization’s medical director (Buxton), were convicted of violating a pair of Connecticut laws. One of the laws prohibited the use of contraceptives; the other, on which grounds Griswold and Buxton were convicted, was a general prohibition against aiding and abetting another crime.

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The controversy surrounding Roe v. Wade made people begin to think of privacy as one’s right to govern the civically private aspects of one’s life. And this struck rhetorical gold, as it were: finally there was a name for the hazy “liberty” of the Declaration of Independence. Americans now had a seemingly concrete name for the principle of personal autonomy that has served as the foundation of our legal and social tradition. Had it not been for the rise of a networked computer culture in the early 1990s, privacy might have evolved past its old definitions of “civic status” and “secrecy.” But the Internet has reinforced the idea of privacy-as-secrecy: our culture of individualism has catapulted privacy-as-secrecy into the same near-holy realm that privacy-as-autonomy reached in the 1970s. We talk about privacy more often than we did ten years ago and we apply it to a wider variety of situations.
Both senses of privacy speak to the primacy of individual freedom in the United States, and because both senses invoke almost equally powerful concepts, privacy is open to rhetorical appropriation in a huge variety of contexts—in addition to its “legitimate” uses.

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But once the web became the domain of consumerism, this rather lackadaisical approach to encryption and consumer privacy reversed. Consumer privacy is all over the media. It is relatively rare to see a phrase like “individuals’ privacy” or “citizens’ privacy” compared to “consumer privacy” in discussions of Internet privacy issues; privacy is only important in the context of the consumer. In light of the United States’ capitalist economy, it is not surprising to see issues of consumer privacy raised; it is, however, somewhat unexpected to see consumer privacy take the prominent role that it has.

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The authors used these unsubstantiated privacy concerns to appropriate the concepts’ rhetorical force. web users may be concerned about their consumer privacy, but they are not so terrified of consumer privacy invasions that they refuse to log on or make purchases. The Businessweek survey indicates that since 1998, users’ (consumers’) confidence in making Internet purchases has in fact gone up markedly: and this happened at the same time that sites began collecting, amalgamating, and selling larger quantities of data. Users may be concerned, and they may want changes, but they are not so concerned that they won’t use the web.

So far the web’s usefulness has outweighed consumers’ privacy concerns. Thus, in order to grab the reader’s attention, the authors casually toss in two examples of privacy invasions that can cause actual harm. They have no factual basis for their claims, but since it doesn’t appear that consumers are terribly afraid to consume, the authors have to associate consumer privacy invasions with more directly harmful privacy invasions to add weight to their argument.

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The right to self-determination is the true underlying principle of what I have been calling “privacy as autonomy”. This is what underlies everything else that we claim as private. Every notion of privacy that we have stems from our belief that the individual should be able to direct the course of her own life. The right of self-determination is the right to exercise choice, and we specifically enumerate decisions that the government may not punish – as with the right to assemble with whomever we choose, the right to deny a roving police officer entrance to our home, the right to an abortion. Sometimes the right to choose certain things must be balanced against other rights; and sometimes, the right to self-determination is not absolute. For example, a non-public individual generally cannot sue a newspaper that has published her photo. Even though she would have chosen that the photo not be published, the newspaper’s right of free speech outweighs that choice.

Brandeis had it wrong when he said that privacy is “the right to be left alone.” What he was aiming at is instead something better phrased the right to self-determination. A rose by any other name may still be a rose, but we confuse the public debate and public policy by trying to mash the notion of self-determination into the rather smallish box that privacy provides. Privacy-as-secrecy is not gracefully evolving out of the dictionary to make way for privacy-as-autonomy. Privacy cannot hold the entirety of “self-determination,” and this is where much of the debate over the “right to privacy” has occurred. If privacy means secrecy, then claiming that a right to privacy should permit abortions is, on the semantic level, something of a stretch.

Unfortunately for the information privacy debate people have constrained the definition of privacy to its traditional implications of secrecy without explicitly recognizing that the right to self-determination must exist for us to have a meaningful right to privacy. Advocates of data privacy are beginning to implicitly recognize this: current policy suggestions propose to return data ownership to the individuals to whom the data refers. Rather than a marketing company owning data, each individual would be able to control who sees that information, who may disseminate it, and what it might be used for. Perhaps the various definitions of privacy do not make public discourse confusing and impenetrable. But more accurate labels for the concepts that we are discussing can only help clarify our discourse. In the words of George Orwell,

The words democracy, socialism, freedom, patriotic, realistic, justice, have each of them several different meanings which cannot be reconciled with one another... A bad usage can spread by tradition and imitation, even among people who should and do know better. [A defense of the English language] has nothing to do with archaism, with the salvaging of obsolete words and turns of speech, or with the setting up of a “standard English” which must never be departed from. On the contrary, it is especially concerned with the scrapping of every word or idiom which has outgrown its usefulness. (Orwell, “Politics and the English Language”)