TII. Technologies of Privacy

Anita L. Allen has written of the critical role of the discourse of privacy in the fraught negotiation of agency through the contemporary proliferation of technical interventions in human reproduction in her book Uneasy Access: Privacy for Women in a Free Society. “A century ago,” she writes, “the phrase ‘women’s privacy’ evoked norms of restricted access to women…. It brought to mind the expectation of peaceful seclusion within the domestic sphere. While these traditional connotations have not entirely disappeared, ‘women’s privacy’ today is likely first to suggest decisional privacy, especially freedom of choice respecting abortion and contraception.” She goes on to suggest that “[t]he felt need of recent generations to demarcate the limits of intervention into the privacy and private lives of women has done more than even the information technology boom to inspire analysis of privacy and the moral right to it.” What I would stress in Allen’s account is that the developments which have prompted what she describes as the recent emergence (or at any rate transformation) of this concern for privacy are themselves also technological, and so as much of a piece with as a contrast to the impact of “information technology” she notes as well in elaborating this new and newly significant political terrain of privacy.

For me, it is especially significant that the privacy which emerges under pressure of these technological developments in Allen’s argument is what she describes as “decisional” privacy in particular, as against a discussion of the politics of privacy as primarily a discussion of the ways in which a demarcation of a private from the public sphere, say, is perniciously gendered. This shift of the politics of privacy into the register of decision is not simply a change in focus introduced by an expansion of the number of politically-fraught decisions occasioned by the development of new reproductive and contraceptive techniques, but the expansion via these technological developments of the domain in which decisions are made. Privacy here crucially registers a shift in our sense of what is politically susceptible to decision, a shift in the sense and significance of deciding as such. The politics of Choice on this view is never simply the politics of particular choices, but a political production of choosing and of what may be chosen and of those who choose.

But if technological developments have articulated these many ramifying dimensions of our contemporary enjoyments of privacy, they would seem even more conspicuously to register the specter of privacy’s threatened limitation and violation. Although a few scholarly accounts of privacy, notably Alan Westin’s important treatise Privacy and Freedom, propose that the human concern for privacy arises out of deeply-felt territorial instincts shared by a wide variety of animal species (among them, our evolutionary ancestors), it is far more conventional to suggest a more proximate date for the emergence of a formal concern for personal privacy. Indeed, most scholars locate the origin of privacy discourse, properly so-called, as recently as the late nineteenth century. In what is widely regarded as one of the most influential law review articles ever written, certainly the locus classicus for American privacy discourse, “The Right to Privacy,” published in 1890 in the Harvard Law Review by Samuel Warren and Louis Brandeis, it is quite clear that the authors are keenly conscious not only of the urgency but also the novelty of the right they are seeking to delineate.

“That the individual shall have full protection in person and in property is a principle as old as the common law,” Warren and Brandeis begin their case, but they go on to add: “it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law… grows to meet the new demands of society.” Just what “political, social, and economic changes,” and just what “new demands of society” they have in mind becomes clear over the course of their argument. “Recent inventions… call attention to the next step which must be taken for the protection of the person,” they continue later, citing in particular the “[i]nstantaneous photographs and newspaper enterprise [that] have invaded the sacred precincts of private and domestic life.” To these threats they then append the amplification of a concern with the “threat” of “numerous mechanical devices” that remain ominously unspecified. Much of the discussion of privacy since these definitive Warren and Brandeis formulations, whether popular or academic, has likewise featured the lurid cataloguing of burgeoning technological threats to privacy introduced by ever more sophisticated and ubiquitous surveillance devices, and now including the digital networked profiling and distribution of personal information, intrusive medical interventions, and the like.

New media technologies would seem to threaten privacy both in their capacity to gather personal information and to circulate it in unwanted ways. Monitoring and surveillance devices are becoming ever more conspicuous in their ubiquity, not merely as video security cameras in more and more public (and “private”) places, but as cameras and videophones in everybody’s hands more and more as a matter of course, many of them always already linked to digital networks that can circulate images more or less instantly to audiences on a scale once available only to corporate broadcast media. And from the interminable traces of a life-long intercourse with forms, receipts, citations, prescriptions, records, bills, data from medical scans, and the like dossiers and data-profiles of stunning depth and breadth and eerie predictive power can be compiled and subsequently propagate across the networks to take on unwelcome lives of their own.

These threats are typically framed as problems of “informational privacy.” More specifically, an “informational” construal of the right to privacy will be one that puts a person’s capacity to control information about herself at the heart of our conception of proper personhood. It is crucial to note that the “informational” dimension of privacy presumably uniquely threatened by new digital networked information technologies is directly correlated to, indeed represents the imperiled face of, the “decisional” privacy enabled in accounts like Allen’s by new reproductive (and other) technologies. In its ambitiously comprehensive decision for the 1977 case Whalen vs. Roe the Supreme Court registered this connection explicitly, defining privacy as at once an “interest in avoiding disclosure of personal matters” (the informational construal of privacy) and an “interest in independence in making certain kinds of important decisions” (the decisional construal of privacy). Be that as it may, what matters to me most at this point is simply to note that in either dimension, empowered or under threat, it would seem to be technological development in particular that deranges the conditions through which agency comprehends, communicates, and expresses itself through these figures of privacy.

This question of first determining and then ensuring the proper scope of control over personal information defines in fact an explosively proliferating host of contemporary debates about the impacts of digital networked information and communication technologies, about electronic surveillance and monitoring devices, about the acquisition, circulation, manipulation, and sometimes even the patenting of genetic information, about the transformation by new media formations of familiar problems of slander, libel, and harassment, about the proper form and scope of intellectual property rights, copyright, and the fair use of copyrighted materials for artistic creation and academic research, about the destabilizing impact of globe-girdling flows of information and, what increasingly amounts to the same thing, money. What is conspicuous in these developments is not just that they have come urgently and as it were co-incidentally to frame all of their problems through the language of privacy –- and privacy very particularly in its construal as personal control over information –- but that despite the fact that these many domains of concern originated in disparate areas of culture, each with their own histories, problems, technical conditions, and even terminologies in tow, all of these problems are coming to seem in an important sense continuous with one another.

Through the discourse of privacy the promethean threats and promises of genetic medicine, the comfort and eerieness of the sudden ubiquity of surveillance devices in our daily lives, and the arcane administrivia of decades of copyright law seem somehow importantly susceptible all at once to collapse -– through what James Boyle has described as “the homologization of forms of information” -– into a single problematic. Just as our own era, this so-called “information age,” has presided over an extraordinary condensation of what had been hitherto completely different media for the storage, access, and circulation of all kinds of information (e.g., printed materials like books and newspapers, photographic images, sound recordings, telephones, televisions, films, informational traces of every description) into digital forms accessed through a single multimedia device, often a desktop or hand-held personal computer -– so too this information era has presided over the comparable condensation of what had been hitherto disparate intuitions and concerns about the scope of individual discretion, the forms of proper ownership and creative expressivity, and threats to bodily autonomy all through the new, dense discourse of personal privacy in its correlated informational and decisional construals.

And so we find that those many urgent and still popular discussions of the politics of privacy which would treat it as a kind of abiding, unproblematic, or even natural capacity imperiled by some particular technological development or other (new encryption, surveillance, or file-trading mechanisms, say) are in fact especially inadequate to the contemporary practical and institutional terrain of privacy and its problems, since what is experienced as privacy and what is expected of privacy will always be as much produced by technologies as threatened by them. The urgent values and tangible attainments we attribute to privacy and perceive to be threatened by the arrival of new technological capacities may be widely imagined to arise spontaneously from and persist otherwise undisturbed within "nature" or secure custom but they are in fact stable neither in their attributes, their conditions, nor their implications.

Indeed, as we have seen, many of the putatively self-evident and definitive dimensions of privacy as we understand it in our day represent in fact relatively recent preoccupations, often provoked by sudden threatening or promising technological developments. Many of the customs and capacities we associate with privacy and that we might take as inalienable to it have been in fact at best contingently secured by relatively high historical costs of control, costs often rendered negligible by contemporary technologies. Further, what may have seemed quite naturally and steadily interdependent facets (bodily integrity, discretion, and ownership, say) in privacy understood as a unified category may now be disintegrating in the pressure of the proliferating interventions made available by digital networked information and communication technologies.

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