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“Nothing to hide” is Not Enough: The Best Academic Article I Read in Law School

Although I have long had a sense that personal privacy is critical to human flourishing, it was only more recently that I began to appreciate both the veracity of this intuition as well as grasp the logical argument for prioritizing it.

Needless to say, it was a watershed moment when I discovered Harvard Law professor, Julie Cohen’s, article titled “What Privacy is For”. Hands down, it was the most compelling article I read during law school.

In the article, Cohen outlines the positive benefits that arise in a society committed to maintaining privacy.  Also, she exposes the sinister outcomes that arise in a society that neglects privacy.

Following an attempt to make tangible the perennially abstract concept of ‘privacy’, she unleashes succinct argument for how humans living in a society wanting of privacy protections lack the negative space required to self-realize and thus are doomed to lead a suboptimal life. Moreover she explains how vigorous liberal democracy cannot persist where the same humans (citizens) are effectively modular and therefore lack the capacity for democratic self-government.

The below is my attempt to highlight, summarize and distill aspects of Cohen’s incisive argument and insights.

An attempt to bring privacy to life

What does privacy enable? What does a lack of privacy sacrifice/surrender?

According to Cohen, privacy enables an individual’s freedom to tinker.

She succinctly conveys:

“Privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development.”

Framed in the negative she writes:

“Lack of privacy means reduced scope for self-making.”

To expand, she writes: “Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent and predictable. It protects the situated practices of boundary management through which the capacity for self-determination develops.”

These phrases are worth unpacking.

What is ‘dynamic and emergent subjectivity’?

It is the idea that an autonomous self will develop to be unique and independent when presented with the space and freedom to do so. Further, that the creation of the self is never static and is inherently interconnected through relations with prior experience, external influence and the already-adapted self. The idea that every individual is necessarily unique underpins this. In other words, while I share qualities and experiences with peers, friends and family, my specific compendium of experience is unprecedented and unparalleled. Further it is always growing. When I try to cook a new meal or even when I play it ‘Smells Like Teen Spirit’ on my guitar for the 6000 time, or listen to a politician respond to a reporter’s question, my subjective experience is expanded and enriched.

What does the phrase: “the efforts of commercial and government actors to render individuals and communities fixed, transparent and predictable” mean?

This introduces the idea that business and government have a vested interest in modular citizens. This idea is worth reflecting upon. Feel free to re-read the phrase.  Simply put, any time disparate and diverse populations can be rendered “fixed, transparent and predictable”, less time, effort and fewer resources are required to monitor, manage and manipulate them.

For commercial interests, the equation is simple. It goes without saying that a shoe factory can more quickly and efficiently achieve its objectives (i.e. profit maximization), if consumer needs and wants become standardized or dictated. Indeed, a modular citizen is an optimal consumer.

For governments, the equation is slightly more complex, however the principle at play remains consistent. Where there is reduced variance and opacity among individuals’ actions, pursuits and desires, a government will be more easily able to track and observe anomalous behavior (think national security), win future elections and control information.

Taken to an extreme, incumbent politicians and entrenched power brokers will be required to expend fewer resources and simultaneously have an easier time preserving the status quo.

The takeaway: So, in essence, enhanced privacy acts a bulwark against these inherent interests and institutional biases of commercial and government actors. It is only through the preservation of privacy that humans gain the space to experiment, to host independent thoughts, to associate freely, and to fail without fear of debilitating reprisal.

Thinking beyond ‘the individual’ and more towards privacy’s role in preserving the health of a liberal society, Cohen offers:

“Privacy’s goal, simply put, is to ensure that the development of subjectivity and development of communal values do not proceed in lockstep.”

A resilient society requires diversity of experience among individuals and this excerpt describes well privacy’s role guarding that plurality.

Privacy’s link to human flourishing

“Privacy is one of the resources that situated subjects require to flourish” – Cohen

How does freedom to explore subjective experience assist humans in being healthy, happy and independent, and thus to flourish?

For liberal humanists* in the 21st century, subjective experience is our lodestar.  We look inward for guidance, for understanding, for explanation. We place ourselves at the centre.

In essence, because we, as humans, have concluded that subjective experience, and by extension, the creation of the self, is foundational to what it means to be human, we therefore place inherent value in the pursuit of self-making.

Interestingly, Cohen notes that the notion of selfhood advanced by liberal philosophers is often correctly critiqued as being abstract from embodied reality, she similarly notes that “the liberal self’s capacity for critical independence of thought and judgment, its commitments to self-actualization and reason, and its aspiration to cosmopolitanism are essential tools for identifying and pursuing the material and political conditions for self-fulfillment and more broadly for human flourishing.”

If none of the above makes sense, a related argument is conveyed by the colloquialism: “Dance as if no one were watching.” People dance for a number of reasons, among them the fact that sometimes, it’s just what they want to do. This is an example of self-making.

If you are free to self-realize, be it to dance, drink, think, feel, you are more likely to flourish as a human.

If you perceive that someone is watching, there is every likelihood that you will alter your dancing style. Invariably it will be to conform to whatever you believe to be mainstream. Assuming you have sufficient independent thought to conceive of fringe dance moves (which is far from given), there is little chance that you will risk to attempt them.

No individual who is ‘dancing under surveillance’ can be said to be self-making in the fullest sense of the term and therefore extreme surveillance is at odds with ultimate human flourishing.

*a humanist is person whose philosophy emphasizes the value and agency of human beings. A liberal humanist is one who values freedom first and foremost.

How an absence of privacy threatens democracy (A healthy democracy requires ample privacy)

A reduction in collective human flourishing is not the only thing at risk if privacy is not sufficiently safeguarded.

Indeed, of equal (or even greater) concern is that by failing to preserve privacy, we gradually kneecap citizens’ capacity to engage in independent, critical thought, the sort of which is a precondition to a functioning liberal democracy.

For example, the capacity for and practice of citizenship requires access to information. Through the dominance of informational organizers and gatekeepers such as Facebook, Google, Amazon, and others, we surrender our freedom to information. Seduced with price discounts, enhanced products and services and heightened social status, black-box algorithms, search rankings and social networks filter content in a way the vast majority of citizens aren’t aware of.

Undoubtedly, our capacity for democratic self-government is increasingly reliant on the stream of information filtered by those technologies and via the exact medium they permit.

Further, these sorts of networked information technologies enable surveillance to become “continuous, pervasively distributed, and persistent”. This in turn facilitates modulation.

And, with modulation, a democracy is destined for erosion. On this point Cohen writes:

“Liberal democratic citizenship requires a certain amount of discomfort – enough to motivate citizens to pursue improvements in the realization of political and social ideals. The modulated citizenry lacks the wherewithal and perhaps even the desire to practice this sort of citizenship.”

Conclusion

My goal is to concentrate the above analysis on logical thought without straying into extremes of conspiracy theories. Anyone who operates in today’s liberal democracies without a healthy dose of doubts about the mechanics of our society risks being a dupe. I’m not calling for revolution however I would like to prompt others to seeking to better educate and inform and provoke critical reflection on inherent counterbalances in our values systems and societal arrangements. More than anything I want to help those that presently place minimal importance on privacy to understand why they are misguided.

Saying, “I have nothing to hide” entirely misses the point. Indeed, people rarely reflect deeply on this statement before making it. When you subsequently request this person to hand over passwords to all of their online accounts, they invariably recoil in refusal. You can’t reconcile ambivalence for personal privacy with an unwillingness to be 100% transparent.

Valuing privacy doesn’t assume you have something to hide.

The impact of elevated privacy standards, or the absence thereof, is drastically subtler. It goes to the root of the society dynamics and values.

We, as a society, have the option to prioritize privacy or not. We can demand stricter laws. We can request increased and more independent oversight of corporations and governments. Enhancing privacy in this way need not stifle innovation or jeopardize national security as some critics may attempt to persuade.

And if, after an informed debate, we ultimately accept that the benefits of mass surveillance are required to prevent deaths, and that any death which may have been prevented by mass surveillance is one too many, then that’s fine. I personally think it is a skewed outcome.

However, at a minimum, we must ensure that we are educated to the risks associated with a sacrifice of our privacy in the name of security, efficiency, convenience, innovation or other.

So, when you are surrendering your information, think twice.

You’ve probably heard, data is the new oil. If so, you are wealthy. Don’t give it away for free. Hold it tight. Reflect on what it is worth for you to part with it.

It’s true that  every day we are offered opportunities to enhance connectivity, improve convenience and, generally, to streamline life. Cloud computing provides on-demand access to information and archives. Data mining and predictive analytics offer products and services in real-time to solve challenges we loathe to live with. The emerging Internet of Things proposes to further eliminate friction and preordain our desires (think: your furnace activating to warm your home once you arrive with a 5 km radius, Amazon’s Alexa or Google’s Home can tell you the score in the baseball game upon request, etc.)

It is wonderful. I am among the first to welcome greater efficiency, ease and metrics.

But these technologies have not been developed in a privacy-centric manner. We haven’t demanded it.

Finally, consider reading Cohen’s article in its entirety. At times it can be thick and technical, but it is well organized (much moreso than this post) and jam-packed with revelations. You can find it online for free here – http://bit.ly/WhatPrivacyIsFor

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