Monday, August 5, 2013

Privacy, Transparency, Espionage, and Secrecy: Assange, Manning, and Snowden Incidents / Part II / Defining Privacy and Conceptualizing Associated Problems

The Good Justice Louis Brandeis /
Courtesy of Wikipedia

Let's begin at the beginning and the beginning should almost always been, when studying something, its definition - I'll give a few definitions of privacy, at the outset, for comparison.

First, Merriam-Webster's definitions:
the quality or state of being apart from company or observation seclusion; freedom from unauthorized intrusion [one's right to privacy]; archaically, a place of seclusion; secrecy; or a private matter or secret. 
Second, Santa Clara University's Markkula Center for Applied Ethics has a brief article by Michael McFarland, a former president of the College of the Holy Cross and a computer scientist with a liberal arts backgrounds on the subject.  Indulge me, if you would, with a length excerpt of President McFarland's piece:
Privacy has many meanings. The most general is freedom from interference or intrusion, the right "to be let alone," a formulation cited by Louis Brandeis and Samuel Warren in their groundbreaking 1890 paper on privacy. This recognizes that each person has a sphere of existence and activity that properly belongs to that individual alone, where he or she should be free of constraint, coercion, and even uninvited observation. As we would say today, each of us needs our own "space." Most would recognize the protected sphere to include personal opinions, personal communications, and how one behaves behind closed doors, at least as long as these do not lead to any significant threats to society. Many would also include behavior within the family and other intimate relationships in that sphere.
This broad concept of privacy has been given a more precise definition in the law. Since the Warren-Brandeis article, according to William Prosser, American common law has recognized four types of actions for which one can be sued in civil court for invasion of privacy.
They are, to quote Prosser:
Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
Public disclosure of embarrassing private facts about the plaintiff.
Publicity which places the plaintiff in a false light in the public eye.
Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. 
The first category is the broadest and the hardest to interpret. "Intrusion" can mean physical presence, excessive telephone calls, and unauthorized observation, such as peering through windows of someone's home. It also covers cases where an authority forces someone to reveal personal information against that person's will, such as a court's unjustified demand that someone produce a broad array of personal records or an unnecessary requirement that someone take a blood test. 
Another problem is defining what constitutes "private affairs." It is not an invasion of privacy, according to the courts at least, to follow someone on the street or to take a person's photograph in a public place. It would be, however, to do so unbidden in their home or a hospital room. This category of privacy applies only to that part of a person's affairs that are not public and which the person does not wish to make public.
While the first of Prosser's categories can include attempts to influence, control or coerce someone's private affairs, most of the cases covered by this category and all of those covered by the other three involve the collection and/or use of personal information about someone. That is the core meaning of privacy. While some use the term more broadly to refer to any kind of uninvited interference with someone's personal life, privacy in the strict sense means shielding one's personal life from unwanted scrutiny.
Next, I'd like to share the Privacy Rights Clearinghouse's definition:
Your personal information is more than your name, address and Social Security number. It includes your shopping habits, driving record, medical diagnoses, work history, credit score and much more.
The right to privacy refers to having control over this personal information. It is the ability to limit who has this information, how this information is kept and what can be done with it.
Unfortunately, personal privacy is lost, unknowingly forfeited, purchased or stolen every day.  In some instances, we individuals can control how our personal information is used.
Finally, I'm including the Cornell Law's Legal Information Institute's definition:
Distinct from the right of publicity protected by state common or statutory law, a broader right of privacy has been inferred in the Constitution. Although not explicitly stated in the text of the Constitution, in 1890 then to be Justice Louis Brandeis extolled 'a right to be left alone.' This right has developed into a liberty of personal autonomy protected by the 14th amendment. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined. The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work. In all of its forms, however, the right of privacy must be balanced against the state's compelling interests. Such compelling interests include the promotion of public morality, protection of the individual's psychological health, and improving the quality of life. 
These are all fantastic definitions, but I want to try to integrate them a bit, maybe shake the sieve for some clarity.
Defining Privacy Practically

Most minimally, and exclusively practically speaking, privacy refers to a condition in which a person, or a group of people, act in accordance with their own will.  Literally the implication is that there are two spheres - the public, being the sphere regulated by the polity and organized according to principles of collective good, general will, and/or coercion. Literally, then, privacy is the expectation that polity and society cohabit but remain distinct - indeed, in the absence of this conceptualization of privacy there can be no conception of civil society.

This practical definition is then sometimes expanded along one or the other, or both, of two dimensions.

The first such practical expansion regards the condition in which and individual or a private group's actions are anonymous or nontransparent - the degree to which private actors may not only act without compulsion from the polity but, further, the degree to which private actors may do so without knowledge of the polity (or even, in some instances, general society). Privacy in this regard is not merely the right to act as one wills, but to act as one wills without oversight.

The second practical expansion is equally dramatic, though in a different manner.  It presumes the existence of property, that is ownership of objects external to an actor by said actor.  Taking for granted that property is a nearly universal human institution (though used and defined in a tremendous number of ways, depending on the society), privacy may also be understood as maintaining that the disposition of property in a state of anonymity or nontransparency to the polity and/or general society.  This may, or may not, include concepts-as-objects, such as communications, ideas, formulas, and so forth, as well as the physical debris of matter formerly part of human actors' bodies (e.g. hair, blood, seminal fluids, DNA, and so on).

The Necessity and Limits of Privacy 

What I have done above is merely to define privacy as a condition and fair enough it might be.  But doing so only leads to another more trying question - do we have a right to privacy and if so, what are its specific limits, bounds, and implications.

This is a tough one - first, it should be said, we can really understand rights in one of two ways - either rights are "endowed" by nature or the divine and are inalienable, that is to say inseparable from our persons, a priori, and absolute in their definitions and distribution or they are socially constructed, the result of conscious human politics and unconsciously developed human culture defining, according to law or tradition, expectations about the relationship between polity and society, one the one hand, and members of society on the other.

 If you abide by the first of these understandings of rights you either believe in rights or you don't and no amount of logic can (or at least should, if you're intellectually consistent) change your mind.  How you came by your understanding of such a conceptualization in the absence of personal revelation is or indoctrination (one of which is, again, intellectually necessary) I can't say, but so it is. On the other hand, if rights are socially constructed then privacy may be understood as one of many concessions that individuals and private groups have gradually and jealously acquired from polities as part of the emergence of a private economy, political individualism, state secularism, and so forth.

Either way, of course, if one is to make the statement that privacy is a right should really be, if one is accurate, individuals and/or groups may expect liberty of action and individuals and/or groups may expect that their actions will not be observed and/or recorded and individuals and/or groups may expect that their property will not be observed and/or recorded.

The right to privacy, then, is conceptualized in the Western world as an expectation of self-restraint on the part of the polity and/or society in general.  Put simply, the right of privacy is really the right to be alienated - alienated from the state and from all or some of society.

If this is generally accepted in the United States, Britain, and most of the modern, liberal world, why the heck would it be a matter of such fierce contention?  Well, the answer is simple.

Rights are statements of ideal conditions - ideally we would be wholly private individuals insofar as we wanted to be, living freely as individually or socially as we respectively desired.  The problem is the real world doesn't allow such a thing.  We live in a world not only of environmental threats, of which there are countless numbers (it is a big universe and we are but mites of dust), but furthermore there are anthropogenic threats, some intrastate, some interstate.  Humans are self-interested and sometimes our interests overlap in mutually non-beneficial, or even harmful, ways and sometimes we are even cruel, evil, willfully dominating and injuring one-another for the sake of it.  As such even the most libertine or anarchist of philosophers concedes that there must be correctional mechanisms - in their eyes ideally ad hoc as compared to the institutionalized forms we use in real polities and societies, but correctional nonetheless, engaging in coercion to prevent some wills from being done.
The Good Mr. Madison / Courtesy ClipArt Etc

This presents its own problem - how are we to know what private actions will or would constitute an adequate threat to the collective good to warrant coercion of liberty?  This is a serious practical question and to be frank there is no simple answer  I am reminded of the good Mr. Madison (as I so often am) when he, in The Federalist Papers (#10, to be precise) attempted to deal with the threats of factions within society to society as a whole (and to any justly established polity for such a society.  Mr. Madison points out that in dealing with the threats of factional actors, and we might just as well project the same rationale to individual actors, there are two means of dealing with the potential for threat that they present.  On the one hand we may try to eliminate the causes of the threats while on the other we may attempt to deal with effects thereof.  Madison, and most of the founders, decried the former as worse than the solution, for it required, in essence, an end to what we have here defined as privacy.  Thus the superiority of democratic-republics, and liberalism in general, to authoritarian and illiberal regimes.

Privacy connotes conflict. Thus either we must eliminate privacy or we must resolve the conflict.  Resolving that eliminating privacy, as a cost, is unacceptable for many reasons, we are left with making the state into a private conflict resolution mechanism. Yet such a mechanism, by its very nature, is ill-disposed to eliminating certain types of conflict - particularly radical, pro-totalitarian, antipolitical, or antisocial conflict.

The only reasonable conceptualization then is something like this:

1. Privacy that is perfect is ideal, however by its very nature allows for the emergence of threats to individuals, society, and polity (some of which enshrine the elimination of privacy);
2. The elimination of privacy in order to eliminate these threats constitutes a cost disproportionate to the benefits under almost all circumstances;
3. The maintenance of privacy in the face of existential threats, however, also constitutes an unacceptable cost;
4. Therefore the standard should follow the doctrine of the mean: privacy should be held inviolate insofar as it does not allow for the emergence of existential threats.

Simple enough - all the world's problems are solved, right?

Except for two huge, gigantic, looming problems - who gets to determine what constitutes an existential threat and whose privacy, and to what degree, is it acceptable to violate in the effort to oppose those threats?

To be continued in Part III / Defining Transparency and Conceptualizing Associated Problems