MI. The “First Generation” of Cyberspatial Theory

Tim May is an advocate for an idiosyncratically American construal of the political term “libertarianism.” By this term he would mean to denote not the socialist sensibility or syndicalism once more typical of its European usage, nor even the civil libertarianism to which the whole bland spectrum of conventional American political discourse is ostensibly committed at least in principle, but the advocacy of an idealized all-encompassing re-writing of society in the image of an “unfettered” laissez-faire capitalism of a kind that has no historical realization (and which is happily unlikely to manage one any time soon).

May’s commitment to this market libertarianism, however marginal in its extremity even in the 1990s era of American neoliberal and neoconservative market-oriented foreign and domestic policy discourse, was anything but idiosyncratic in the company of the early enthusiasts and popular theorists of emerging digital networked information and communication technologies. May’s market libertarianism located him in fact quite solidly within the steadfast market-anarchist mainstream of what Lawrence Lessig has described as “first-generation theorists of cyberspace.” Indeed, it went so far as to land him in 1993, together with fellow Cypherpunk Eric Hughes, on the cover of the second issue of what Paulina Borsook has dubbed the definitive “guide for the perplexed” of the so-called digital age, Wired magazine.

The “first-generation” of popular cyberspace writing is an era the beginning of which I would locate in 1981 with the publication of the novella True Names by Vernor Vinge. Vinge is a Hugo Award winning science fiction novelist and a professor of mathematics and computer science at San Diego State University. Together with William Gibson, who coined the term “cyberspace” and penned the novel Neuromancer and a number of other definitive texts in the “cyberpunk” genre , Vinge created the most persistently influential fictional imagination of cyberspace in literature in True Names (even if he has not garnered as yet, perhaps, a mainstream recognition quite comparable to Gibson’s). Certainly Vinge’s conjuration in True Names of fantastic immersive virtual worlds inhabited by pseudonymous real-world individuals provided a deeply compelling iconography to which both written and filmic science fiction, not to mention the “non-fiction” of popular science writing, corporate futurism and public relations, all have continuously recurred since. Tim May, for one, has been especially insistent in remarking his own indebtedness to Vinge.

And now as for the proper end of the “first-generation” of writing on cyberspace? I can think of no better marker than the publication of Lessig’s own book Code and Other Laws of Cyberpace in 1999, which in discerning and designating the “first-generation” of cyperspatial theory in the first place more or less inaugurated its second-generation.

Early in his book, Lessig tells a tale in broad strokes that frames the problems and assumptions of this first generation of cyberspatial theorists and activists in polemical terms directed to a second generation: “In the spring of 1989, communism in Europe died… [and t]hose first moments after communism’s collapse were filled with antigovernmental passion –- with a surge of anger directed against the state and against state regulation.” Lessig goes on to note that “[a] certain American rhetoric supported much in this reaction.” This was the “rhetoric of libertarianism[:] Just let the market reign and keep government out of the way, and freedom and prosperity would inevitably grow…. There was no need, and could be no place, for extensive regulation by the state.”

That the actual outcomes in the immediate aftermath of those historical moments turned out in fact to be devastatingly otherwise than the various market enthusiasts claimed to expect is the bleakly familiar story. Of course, he writes, “things didn’t take care of themselves. Markets didn’t flourish. Governments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear -– it simply shifted from the state to Mafiosi…. The need for traditional state functions –- police, courts, schools, health care -– didn’t magically go away. Private interests didn’t emerge to fill the need. Instead, needs were unmet. Security evaporated.”

Although it is commonplace for market libertarians to affirm their anarchism as a badge of honor, it is difficult to imagine they would glimpse in the conditions that prevailed in this era the realization of many of their hopes. But “anarchy” remains by far the best word to describe these conditions and Lessig mobilizes the term strategically here. He writes that, “[a] modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets.” In short, “[o]ne system of control had been replaced by another, but neither system was what Western libertarians would call freedom.”

It is a too familiar story and even a conventional diagnosis by now. Where Lessig’s lesson acquires its notoriety and flair is in its subsequent application to a different coterie of market libertarian intellectuals: “At just about the time when this post-communist euphoria was waning – in the mid-1990s – there emerged in the West another ‘new society,’ to many just as exciting as the new societies promised in post-communist Europe.” This “new society” Lessig is describing, of course, was the endlessly elusive phenomenon called “cyberspace.” He continues on, “[f]irst in universities and centers of research, and then within society generally, cyberspace became the new target of libertarian utopianism. Here freedom from the state would reign. If not in Moscow or Tblisi, then here in cyberspace would we find the ideal libertarian society.”

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

Chapter One: Technological Transformations of the Subject of Privacy

[T]he right to be let alone – the most comprehensive of rights and the right most valued by civilized men [sic]. -- Justice Louis Brandeis

We no longer think primarily of deprivation when we use the word “privacy.” -- Hannah Arendt

One: The Subject of Privacy

I. Privacy As Technocultural Problematic

II. Technologies of Privacy

III. Quandaries of Agency for the Informational Construal of Privacy

Two: The Subject of Privacy

IV. Privacy Rites

V. Let Alone

VI. Private Nodes in the Net

Three: The Subject of Privacy

VII. Subject, Object, Abject

VIII. Sovereign Or Subject?

IX. Secrecy and the Subject of Privacy

X. Tales From the War Years

Go to Pancryptics Table of Contents

TX. Tales from the War Years

And now I want to tell you a war story. It is a story about a battle written from the perspective of its recent aftermath. And as often happens with wars, many of its warriors still nurse the wounds they acquired in its skirmishes and betrayals, many still mouth the platitudes that drove its reckless energies, and some still pine for and fervently anticipate its resumption. While it is commonplace for a certain perplexity and even absurdity to attach to the actual details in retrospective accounts of war, it seems to me especially surreal to survey the scene of the conflict that preoccupies me here, a conflict which for all its noise and heat now seems in a way best captioned by that wistful old anti-war slogan: “What If They Gave a War and Nobody Came”?

In the third and fourth chapters of this dissertation, I will tell you the story of what Paulina Barsook has called “The Crypto Wars.” It is the story of what amounts to roughly a decade of skirmishes in policy, in law, in code, in mainstream op-eds, and in the incandescent online manifestoes of a few inspired technology alarmists and enthusiasts, all moved by the development and proliferation of then-new and now-ubiquitous digital networked tools designed either to keep or to expose people’s secrets.

In Chapter Three, “Markets From Math,” I will discuss the application of encryption techniques to transactions undertaken over digital networks and how these new techniques have especially exercised the imaginations of the writer and activist Tim May and the coterie of “Cypherpunks” (the name of an anarchic collection of coders and cryptography enthusiasts, and of the influential, sometimes notorious, online mailing-list where they gather to discuss these topics) for whom he was a founder and a spokesman and something of a folk-hero. Encryption is simply the process of enciphering or transforming information so that it is unintelligible to anyone but an intended recipient.

According to a series of rather exhilarated arguments, initially widely circulated online in the mid-1990s, Tim May and Eric Hughes, among others, predicted that more and more social and economic transactions would come to take place behind a veil of impenetrable encryption. The ultimate consequence of this emerging state of affairs for May and Hughes and the other Cypherpunks was no less than that all conventional national governments would soon be rendered obsolete and contemporary societies across the globe swiftly transformed beyond recognition. All this would take place because states presumably would no longer be able to police routinely encrypted social interactions, levy sufficient tax revenues on ubiquitously encrypted economic transactions to fund their traditional functions, nor even maintain geographical borders in a meaningful way for citizens devoted primarily to their participation in globe-girding digital networks.

In Chapter Four, “Markets With Eyes,” I will focus next on work by David Brin, a popular science fiction author and essayist, who countered this “cypherpunk” perspective soon thereafter in a number of comparably influential articles, many of which also first circulated online, and then in a book, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom?

Brin argues, contrary to the cypherpunks, that whatever security and obscurity might be afforded by encryption techniques would soon enough be bypassed by the overwhelming multiplication of powerful surveillance technologies of other kinds -- for instance, radio frequency identification (RFID) technology inexpensively imbedded into, potentially at any rate, nearly all discrete objects on earth, the ongoing “realtime” tracking of individuals via the biometric profiles they cast in their commerce with the world (traces of skin, hair, blood, as well as finger, iris, and voice prints, for example), and the proliferation of vanishingly small, exceptionally cheap digital cameras, even, imagine, long rolls of paper-thin adhesive-sticker “penny-cams,” all of them archiving or downloading content continuously onto public and private networks. Rather notoriously, as we shall see, Brin goes on to celebrate what initially seems the somewhat chilling prospect of an emerging ubiquitous surveillance society as generating in his terms a kind of radical “transparency” that could, he insists, encourage more critical dialogue, more honorable conduct, and more accountable authorities.

Ultimately, Brin’s vision of a “transparent society” presumes a technological transformation of society no less sweeping and unprecedented in its scope than the “crypto-anarchy” championed by the Cypherpunks with whom he often differed so contentiously. But more intriguing than their differences, I notice that May and Brin share certain unexpected affinities and key assumptions in making their separate cases.

Of these, what strikes me most forcefully (apart from the fact that adherents of both viewpoints seem to consider the outcomes they dread or desire as equally inevitably eventuating from the technological developments that preoccupy their notice) is that both May and Brin affirm at the base of their conceptions of social life a rather specific kind of individual subject. Whether uniquely imperiled or encouraged by surveillance, it is in each case a subject characterized essentially by the capacity to make promises and enter into reliable contractual obligations. It is at root a subject on the market.

And true to this shared point of departure, both May and Brin sketch what amount to similarly utopian portraits of a society constituted in its totality by promises and contracts, attained either through or secured against the emergence of ubiquitous surveillance technologies.

In his book on the emergence of the modern prison, Discipline and Punish, Michel Foucault famously used the figure of the Benthamite Panopticon (an ideal institutional architecture proposed to impose upon prisoners a presumably “beneficial” regime of absolute and total surveillance) to describe how the conscientious liberal subject of industrial capitalism has been constituted through discourses and practices of surveillance, broadly construed. What is intriguing to me is the extent to which May’s own “pancryptic” project reproduces rather than eludes the central features of the panopticon Brin would seem, on the contrary, to embrace. And central to the normative ideals of both crypto-anarchy and total transparency I observe a shared and definitive recourse to a discourse of privacy, treated either as indispensable to human freedom and dignity (in May and Hughes) or instead urgently to be dispensed with in pursuit of the same (in Brin), and for which privacy is taken to be above all else a matter primarily of secrecy.

In his book Future Imperfect (available online as a draft in progress) market libertarian economist David Friedman stages a confrontation between Tim May and David Brin rather like my own, but proposes in consequence an unexpectedly radical embrace of digitality as an effort to preserve liberty. In Chapter Five, “Markets Without Materiality,” this intriguing proposal leads me, in turn, to the work of N. Katherine Hayles. Hayles has provided an illuminating discussion of a notion entertained by roboticist Hans Moravek that connects quite directly to Friedman’s own; namely, that consciousness might one day be uploaded into a computer as a fulfillment of our spiritual aspirations.

For Hayles, the history and preoccupations of information theory as a discipline, from its inauguration in the Turing Test for personhood as a matter of adequacy in ideally mediated, disembodied conversation through to the contemporary visions of organisms as brute instantiations of genetic “programs,” and including Moravec’s vision of “uploading” consciousness into imperishable data, has continually reiterated the gesture of an erasure of the material body, and continually makes recourse to reductive accounts of communication as information flows or a play of patterns which disavow the definitive embodiment of these experiences.

I propose that both the pancryptic and the panoptic utopias/dystopias of cypherpunks like Tim May and transparency advocates like David Brin, relying as they do on the technological facilitation of market norms either through the unprecedented consolidation or obliteration of the circulation of public information, represent a second, conspicuously political face of this dematerializing tendency in information theory. Market libertarian technophiles, often explicitly inspired by these information models, offer up accounts of political life and publish strident manifestos demanding political transformation. Many of these accounts insistently denigrate and deny the reality of legitimate social and public experiences, while many more of them seem curiously oblivious likewise to the actual material complexities of the terrain to which they would address even their legitimate grievances. And few of these accounts seem prepared to grasp the significance of what seems to me a conspicuous contemporary rematerialization of new media networks, on which are flowing more and more palpably and significantly these days not so much any presumably disembodied digital information strongly susceptible to secrecy, but bodily secretions susceptible instead to biometric surveillance and to ownership by others as patentable sequences of information.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TIX. Secrecy and the Subject of Privacy

To be sure, the subject of privacy has its little secrets.

And so: We have the subject who is the one who represents a privileged site of agency in her definitive difference from the objects she instrumentally deploys, and who is at one and the same time the subject who is the one subordinated to an overbearing authority in a sovereign-subject relation that uneasily resembles the very instrumental relations that otherwise obtain between that subject and her objects. Certainly, this sort of paradox will represent a particularly galling humiliation to the precarious pretensions of any sovereign self-image of agency.

But against this humiliating paradox we can propose a complementary and remediative one: In relinquishing the aspiration for an agency that is modeled on a sovereign pretense to omnipotence, might we be not so much diminished as actually empowered? Accepting the measure of vulnerability, unpredictability, and interdependence that is the price of admission into a public life among our peers, might we not so much lose control, as gain the world?

Now, I have maintained that it is to the subject of privacy in particular that we should turn to best understand the special quandaries posed for agency by technological development, and especially by the recent convergence of biotechnologies and media technologies into digital networks. I concentrate my attention here on a few relatively familiar developments which highlight what seem to me to be the three most decisive dimensions of the subject of privacy as they are emerging (and diverging) in the pressure of recent and ongoing developments in digital networked information and communication technologies: namely, obscurity, security, and private property.

In each of these registers, an attachment to the assumptions of sovereign conceptions of agency will decisively weight the rhetorical terms through which we understand the problems posed to privacy by contemporary technological developments. And I am especially interested in the ways in which the discourse of privacy considered above all as a kind of secretiveness seems to be a particular provocation to sovereign figurations of agency and to their special dilemmas.

While secrecy withdraws information from public circulation, it is curious that this effective effacement appears not so much to obliterate information as to substantiate it. Secrets, somehow, are things we have and we keep.

This image of secrecy manages at once the figurative embodiment of information as well as the figurative substantiation of the one whose agency depends on a capacity to decisively articulate information’s flows. And while “secrecy” is the concealment, withdrawal, and effort to control information, we will also speak of “secreting” an object, setting it aside, stashing it, or hoarding it away, as well as of “secretions” in which the substance of our bodies perspires into the environment. From secretive privation, then, comes a curious hoped-for shoring up of substance, a holding back that constitutes at once control, continence, ownership (as in Locke’s notorious justification for the institution of private property as originating in a fabulous mixing of once unusable land with the “sweat of the brow” of laborers who initially cultivated it).

What if much of the real substance of the dread registered in discussions of the ways in which emerging technologies provide occasion for violations of privacy simply derives from their freighting with sovereign conceptions of agency we all might in any case do quite well without? And what if the hyperbolic dreams that are indulged in many technophilic discussions of the ways in which privacy might be perfectly protected, radically strengthened or extended through recourse to emerging technologies sing to the tune of this selfsame sovereignty?

Against any discourse that figures the withdrawal from public life into privacy as a gesture that promises finally and for true to secure the boundaries of such a sovereign self, I will want to propose instead a discourse that would reactivate the privative dimension in privacy as the relinquishment altogether of such delusive self-punishing pretenses to sovereignty.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

VIII. Sovereign Or Subject?

In a work published in the volume Power/Knowledge as “Two Lectures,” Michel Foucault famously complained that power has come to be conceived primarily through the figure of sovereignty -– that is, through the figure of a central, unitary, overbearing sovereign will unilaterally translating intentions into effects in the world.

In later work, Foucault was to point out again and again how sovereign figures of power construed as a primarily repressive force manage to impoverish our sense of the ways in which power can produce rather than merely impose effects in the world. But in the “Two Lectures” his claim is the more straightforward historical point that there emerged in the seventeenth and eighteenth centuries new (and soon altogether dominant) modes of political organization “which can no longer be formulated in terms of sovereignty” at all.

In Judith Butler’s summary of the argument, “power is no longer constrained by models of sovereignty” but instead “emanates from any number of ‘centers.’” That is to say, “power is no longer constrained within the sovereign form of the state. Diffused throughout disparate and competing domains of the state apparatus, and through civil society in diffuse forms as well, power cannot be easily or definitively traced to a single subject who is its ‘speaker.’”

Butler’s articulation of Foucault’s argument through the conjuration of a scene of speech in particular here is key. This is because, for one thing, she will describe as the conspicuous instance of the sovereign imagination of agency the idealized figure of “the sovereign speech act,” defined as “a speech act with the power to do what it says…. A power of absolute and efficacious agency, performativity and transitivity at once (it does what it says and it does what it says it will do to the one addressed by the speech).” This ideally agentic scene of sovereign speech, bedeviled neither by failure nor misfire, is a kind of hyperinflation of the common or garden variety performative utterances that notoriously preoccupy J.L. Austin’s How to Do Things With Words, utterances which themselves already seem curiously often to issue from legal or otherwise constituted authorities, and through which battleships are christened into service, couples “pronounced” into marital compacts, and the like.

But the scene of speech is also important in the articulation of an altogether alternative conception of agency for Butler as well. Agency in its broadest construal is simply a matter of doing things, and making sense of things. “According to one view of agency,” writes Butler, “a subject is endowed with a will, a freedom, an intentionality which is then subsequently ‘expressed’ in language, in action, in the public domain.” On such a view, she continues, “‘freedom’ and ‘the will’ are treated as universal resources to which all humans qua humans have access. The self who is composed of such faculties or capacities is thus thwarted by relations of power which are considered external to the subject itself. And those who break through such external barriers of power are considered heroic or bearers of a universal capacity which has been subdued by oppressive circumstances.”

Against this view, Butler proposes instead that agency and freedom are not so much universally available, essentially human resources to be expressed in language, but contingent formations constituted in language in an ongoing way, forever subject to failure and to frustration, as well as to promising improvisatory reformations. “Language,” she writes, “sustains the body not by bringing it into being or feeding it in a literal way; rather, it is by being interpellated within the terms of language that a certain social existence of the body becomes possible.” As one among many examples of the sort of relations Butler is proposing here, it is nicely evocative to contemplate the scene in which a “doctor who receives [a] child and pronounces –- 'It’s a girl' –- [and so] begins that long string of interpellations by which the girl is transitively girled: gender is ritualistically repeated, whereby the repetition occasions both the risk of failure and the congealed effect of sedimentation.”

In a nutshell, for Butler: “To become a subject means to be subjected to a set of implicit and explicit norms that govern the kind of speech that will be legible as the speech of a subject.”

To be a subject is always crucially to be intelligible as a subject. And this intelligibility is in turn crucially a matter of being (treated as) a competent speaker of the language of agency, competent in the intelligible citation of agency’s proper conventions. But just because a language is sufficiently stable as an object that one can usually reliably distinguish competent from incompetent speakers of that language, this does not foreclose the capacity of those very speakers, precisely because they are competent, to reform their language in speaking it, through figurative language or coinages, for example. Citation is almost never recitation, almost never a perfect repetition of some established norm. “To be constituted by language is to be produced within a given network of power/discourse which is open to resignification, redeployment, subversive citation from within, and interruption and inadvertent convergences with other such networks,” Butler goes on to say. And “’[a]gency’ is to be found precisely at such junctures where discourse is renewed.”

Language is competent to produce effects in the world (notice even in their most trivially “descriptive” registers languages risk the proposal of sufficient similarities among the play of differences in the environment on the basis of which one attends and acts decisively and then differentially succeeds or not in manipulating that environment and anticipating experience), and the competent speaker of language is thereby more or less efficacious for it. But a linguistic account of agency can never afford the consoling fantasy of omnipotent invulnerability. The interminable play of differences, among them the key instance of an ineradicable difference between world and word, provide the constant and conspicuous occasion for failure and frustration. Neither can a linguistic account of agency afford the consoling fantasy of omnipotent autonomy. Language confers intelligibility, and so its special measure of independent existence, only as a function of an ineliminable interdependence of speakers (recall Wittgenstein on the impossibility of private language ).

“Untethering the speech act from the sovereign subject,” writes Butler, “founds an alternative notion of agency and, ultimately, of responsibility, one that more fully acknowledges the way in which the subject is constituted in language, how what it creates is also what it derives from elsewhere.” She goes on to emphasize that “[w]hereas some critics mistake the critique of sovereignty for the demolition of agency, I propose that agency begins where sovereignty wanes.”

This is a stronger claim by far than that a linguistic account of agency affords adequate agency to satisfy our legitimate needs, despite, say, its registration of a disconcerting or unappealing vulnerability and radical dependency for the agent so construed. Hers is not necessarily a plea for a more modest accounting of agency. If efficacy is indeed importantly a function of intelligibility, then the radical inter-dependency of linguistic practice is a general condition for agency, even if it is frequently the occasion for its particular frustration as well. If freedom is indeed importantly a function of the open-ended character of linguistic practice, then the radical vulnerability of language to error, misinterpretation, and misunderstanding is a condition for agency as well, because it is the condition for the openness of language to improvisation, novelty, and poetry.

The disavowal of this dependency and vulnerability at the heart of the sovereign figuration of agency is not of course the same as the accomplishment of the autonomy and invulnerability it pines for, but on the contrary Butler suggests “weakens the sense of self, establish[ing] its ostensible autonomy on fragile grounds… requir[ing] a repeated and systematic repudiation of others in order to acquire and maintain the appearance of autonomy.” What is wanted instead, she proposes, are “fundamentally more capacious, generous, and ‘unthreatened’ bearings of the self in the midst of community” for which linguistic as opposed to sovereign accounts of agency have a more conspicuous affinity.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TVII. Subject, Object, Abject

All technology is the prosthetic elaboration of agency. And this is the reason that it can be so difficult to tell, from moment to moment, just what will properly count as technology in the first place in the discussion of it.

We are all of us keenly aware of the habit technologies have of vanishing from our notice from everyday use, of vanishing into our bodies even, like languages or contact lenses do, like our telephones and keyboards and other network interfaces are beginning to do.

We so rapidly and thoroughly “naturalize” our many artifacts that the technological becomes instead a phrase with which to conjure up far more fantastic objects: devices which threaten to displace our livelihoods or which promise to deliver us lives of leisure, weapons that threaten to devastate the planet or techniques that promise to stave off environmental crises. “Technology” becomes especially the register of instruments that resonate with the fears and fantasies of agency, with helplessness and with omnipotence, reductios of the agentic in formation and under threat but never really quite present to hand. And in the figure of the cyborg, the unpredictable intercourse of intentions and tools and the worries and promises occasioned by their interminable collisions come to a kind of crisis.

“By the late twentieth century, our time [sic], a mythic time, we are all chimeras, theorized and fabricated hybrids of machine and organism; in short, we are cyborgs.” So writes Donna Haraway in the introduction to her profoundly influential “Cyborg Manifesto,” first published in 1985. The cyborg is a cybernetic organism, a functional creature that integrates biological organism with artificial machine. Haraway’s manifesto delineates a wide range of social and cultural registers in which the cyborg as figure and as lived reality makes its play in the world. “Contemporary science fiction is full of cyborgs, creatures simultaneously animal and machine, who populate worlds ambiguously natural and crafted,” she writes. “Modern medicine is also full of cyborgs, of couplings between organism and machine…. And modern war is a cyborg orgy, coded by C3I, command-control-communication-intelligence, an $84 billion item in 1984’s US defense budget.” Of course, in the years since the initial publication of Haraway’s piece medical prostheses and multimedia interfaces have proliferated deliriously, biological processes of reproduction and perception are now routinely technologically-assisted, cyborgic imagery suffuses ever more inescapably both our entertainments and our advertising (and don’t inquire too deeply into that distinction!), while unprecedented flows of capital, both monetary and emotional, have come to be invested in these fraught collisions and combinations of the organic with the machinic.

These are potent collisions, and they make for potent confusions. If the subject construed as one who is an “end in herself” is most intelligible in contrast to the objects – construed as “means to the subject’s ends” – against which she is persistently distinguished, and the instrumental use of which constitutes the definitive performance and experience of that subject qua subject, then what can it mean to that subject to find objects invading her proper precinct? What does it mean to the subject so construed to discern that objects constitute not just the furniture on a stage on which she acts as subject, but attach themselves inextricably to her? And, indeed, what is this subject to make of the possibly appalled discovery that the incorporation of and dependency upon these objects does not just superficially facilitate the definitive instrumental acts through which she knows herself as subject and best enjoys her subjecthood but in fact constitute the condition for the possibility of such action in the first place?

Haraway’s cyborg, in its impurity, permeability, and permanent corporeal confusion is another repudiation of Barker’s figure of the private subject, in Haraway’s terms that “ultimate self untied at last from all dependency, a man in space.” But despite (in fact, because of) its “partiality, irony, intimacy, and perversity,” its apparent privations, the cyborg is nonetheless a profoundly agentic figure in Haraway’s accounting, “oppositional, utopian… and hungry for connection.” If it seems paradoxical that Haraway would locate agency at such a fragmented, dependent, impure, and compromised site, this may be because we have grown accustomed to more sovereign figurations of agency.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TIV. Privacy Rites

It is a commonplace in theoretical discussions of privacy that as a category, as a value, and as a right, privacy is at once widely affirmed but apt to be confused. The opening sentence of Alan Westin’s classic 1967 text on the subject, Privacy and Freedom, provides a representative expression of the point: “Few values so fundamental to society as privacy have been left so undefined in social theory or have been the subject of such vague and confused writing.” Patricia Boling sketches some of the contours of this perplexity when she notes that “[a] woman asserting a ‘right to privacy’ that allows her to have an abortion does not mean the same thing by privacy as a public figure who objects to media coverage of his personal affairs, and neither of these claims is much like the notion of privacy at stake in privatizing public services or allowing businesses to be free from pollution standards or workplace safety regulations.”

There is, of course, no explicit recognition or guarantee of a right to privacy in the United States Constitution. Because of this, and because it is impossible to discern any kind of ready coherence in the extraordinary diversity of constitutional cases nonetheless invoking this right over its long and convoluted legal history, the evolution of the right to privacy has been deeply controversial and its several applications in American jurisprudence likewise deeply vulnerable to criticism even as the affirmation of this right has been widespread and passionately felt.

Certainly, Fourth Amendment proscriptions against unreasonable searches and seizures have provided at best a shaky foundation for the ongoing articulation of the right to privacy. For one thing, the Amendment’s language of “security” and, especially, of “seizure” conjures the specter of a physical violation that has had a troubled applicability to the often “intangible” injuries to personhood and peace of mind, to character and reputation, and to the scene of decision itself that the law has sought to clarify and remediate through the invocation of a privacy right, all the while freighting the support of private personhood with the special urgency that bodily vulnerability inevitably inspires.

A further difficulty, this time exacerbated by the Fourth Amendment’s language of security from unreasonable “searches” and the imprecision of its proper scope of applicability (that is to say, to “persons, houses, papers, and effects,” etc.), is that discussions of privacy and the claims made in its name will differ radically in the level of generality at which they are pitched, sometimes investing themselves strictly in the contours of individual bodies, as we have seen, but also sometimes directing themselves instead to broader spheres of privacy encompassing a private room or household, an intimate relationship, the “family” in its various construals, or even, as happens in some rather extraordinary market libertarian formulations, an idealized totality of “non-coercive” contractual relations imagined to be co-extensive in principle with the scope of the public realm itself.

And finally, the emphasis on the Fourth Amendment’s language concerning the “unreasonable,” which preoccupies the pragmatic cost-benefit analyses of many recent discussions and decisions that would weigh privacy rights and expectations in the balance of the needs of public safety, law enforcement, or for “Homeland Security” introduce yet another host of intractable interpretative befuddlements.

The earliest significant reference in American legal discourse to a concern for privacy is likely Judge Thomas Cooley’s 1880 treatise on torts, which included among its formulations the portentous phrase the “right to be let alone.” This phrase would return a decade later, of course, as Samuel Warren’s and Louis Brandeis’s profoundly influential formulation of 1890 in “The Right to Privacy” (the text of which cites Cooley’s treatise explicitly ), which I have already discussed in the previous section, and would return yet again in the celebrated dissent Brandeis would write later still in 1928 for the case Olmstead vs. United States, about which I will say more in a moment. Just one year after the publication of Cooley’s treatise, a woman who charged that she had been observed during childbirth without her consent and that this constituted a kind of battery was granted relief by the unanimous decision of the Michigan Supreme Court in the case DeMay vs. Roberts in language which invoked instead her “legal right to the privacy of her apartment at such a time… [which] the law secures to her… requiring others to observe it, and to abstain from its violation.”

Judith Wagner DeCew, in her book In Pursuit of Privacy: Law, Ethics, and the Rise of Technology, recounts a story (which has been disputed ) from Dean William Prosser that one of Samuel Warren’s original motivations for writing “The Right to Privacy” was a desire to articulate concerns occasioned by unwelcome newspaper publicity during his daughter’s wedding. If there is any truth to the story, she suggests, “it highlights the early link between technological advances, in this case the use of large-scale media coverage through newspapers, and growing worries about protecting individual privacy.” Of course, this is a connection that would also interest me. But beyond this, it intrigues me to note as well that, together with the conjuration of the scene of childbirth and unwelcome scrutiny in the DeMay vs. Roberts case, these worries about an increasingly intrusive mass-media enabled by new technological development for the Warren and Brandeis formulation suggests rather extraordinarily that the peculiar constellation of concerns with media, surveillance, and reproductive life that define the most fraught applications of the right to privacy in the present day have been its special preoccupation from its very beginnings.

In 1905, the Georgia Supreme Court was the first to explicitly affirm a right to privacy in its decision in Pavesich vs. New England Life Insurance Company. Given the novelty of this right to privacy that they were invoking it is perhaps understandable, but it still seems somewhat incredible, that the Court cited “its foundation in the instincts of nature” and “therefore… natural law,” considering that “the invasion of the rights of his person” that so offended “instinct” and “nature” involved in this case the use of a person’s photograph without his consent.

In the 1928 case Olmstead vs. United States, the majority decided that telephone conversations were not protected from surreptitious eavesdropping since no outright physical intrusion was necessarily involved in cases of wiretapping (a technological development in any case unanticipated by the Framers). It is the famous dissent written by Justice Brandeis more than the majority decision itself that is rightly remembered from the case. The formulation of the right to privacy in the Brandeis dissent, itself relying heavily on the language of the article he had written with Warren nearly forty years earlier, eventually prevailed when nearly forty years later, in 1967, his view formed the basis of the decision in Katz vs. United States where “a reasonable expectation of privacy” protecting “people, not places” was affirmed in another case involving electronic eavesdropping. This overturned the prior decision written by Chief Justice (and former President) Taft in Olmstead which in cleaving close to a “literal” reading of the Fourth Amendment as securing us against only specifically physical forms of trespass had in fact thereby endorsed an unprecedented expansion of intrusive surveillance precisely by ignoring the extent to which technology had itself expanded the forms and intensities of surveillance.

The case is therefore not only historically significant as an episode in the broader story I am telling here, but provides an instructive object lesson highlighting both the dangers and demands introduced by technological development for the deliberative adaptation of inherited values and institutions to shifting contemporary realities. And so, just as wiretapping represented an unprecedented technological amplification of our capacity for surveillance that compelled a deep rethinking of just what might be imagined to be vulnerable in principle to “unreasonable searches” in the first place, so too (for example) the present-day accumulation of commonplace data about individuals might seem a trivial matter until digital networked media render this data widely and easily available, or the application of sorting and modeling software might disclose from it disturbingly revealing (or misleading) profiles of the individuals about whom apparently innocuous data was gathered.

In 1965, in the case Griswold vs. Connecticut, the Supreme Court invalidated a state ban on the possession or use of, or the dissemination of information about, contraceptive devices and substances. The result of the Court was affirmed by a majority of seven to two, but the extraordinary range of statements by the various Justices that provided differing rationales for the decision prefigured the special controversy that has subsequently attached to the decision, and to the series of decisions that have followed its lead, applying the right to privacy to invalidate state laws regulating a number of activities and forms of intimate association: in 1967, in Loving vs. Virginia, to overturn a statute against interracial marriage, in 1969, in Stanley vs. Georgia, to allow the possession and enjoyment of “obscene” materials in the home, in 1972, in Eisenstadt vs. Baird to permit the distribution of contraceptive devices, and then, probably most controversially, the following year in 1973, in Roe vs. Wade, to protect the right of a woman to choose to terminate her unwanted pregnancy by abortion.

Justice William O. Douglas’s opinion for Griswold has been the most influential statement emerging from the decision –- and possibly the most notorious in a long history of controversial formulations of the right to privacy as well. Morris Kaplan quips that an entire “generation of law professors has written its way to tenure by making fun of Douglas’s rhetoric in Griswold.” In his opinion, Douglas proposed that the right to privacy was in fact a “penumbra” “emanating” from the Constitution rather than finding explicit statement in it – and the vagueness of his language here seems in retrospect almost to welcome outright the controversies of the decision’s aftermath.

But it would surely be profoundly misguided to doubt the seriousness and sobriety of the thought that inspired Douglas’s turns of phrase in Griswold. Although it would have been possible to justify the decision exclusively through a reading of the Fourth Amendment (arguing, say, that the enforcement of the Connecticut statute would necessarily involve unconstitutional searches of homes and intrusive surveillance of intimate conduct) as had nearly always been the case in the significant privacy formulations that preceded it, Douglas deliberately proposed a wider argument instead, invoking as he did in his dissent in 1959, in Frank vs. Maryland, the First Amendment protection of free expression and the Fifth Amendment’s protection against self-incrimination, as well as the Fourth Amendment’s protection of one’s person, house, papers, and effects.

In the somewhat more sober language of that dissent he insisted that “[t]hese three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination, but 'conscience and human dignity and freedom of expression as well'." By multiplying the dimensions in which he discerned a Constitutional support of the right to privacy Douglas proposed that this right in particular was the register through which he discerned a broader Constitutional support of human personhood as such, and especially for the public conditions on which personhood properly relies for its maintenance, intelligibility, and force.

The subsequent decisions arising out of Griswold were not only applications but clarifications of its formulation, culminating in the rather more systematic 1977 decision I mentioned briefly in the previous section, Whalen vs. Roe, which explicitly delineated parallel informational and decisional dimensions of the right to privacy. Despite this amplification of its clarity, however, the definitive formulation of the right to privacy remains elusive, and applications of the right to privacy are almost inevitably controversial. The failure of the Court to overturn Georgia’s consensual sodomy laws on privacy grounds in 1986 in the notorious Bowers vs. Hardwick provides a case in point. And the consequent overturning of that decision in 2003 in the case Lawrence vs. Texas -- which has invalidated all remaining sodomy laws in the United States -- has provided ample recent evidence that the articulation in law and in culture of a right to privacy through which to express both the enjoyment of agency and the resistance to its unwarranted intrusion is ongoing still.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TV. Let Alone

Like liberty, a concept with which it shares a comparable elusiveness in formulation while exerting a comparable force in the liberal imagination, the concept of privacy will be deployed in even the most straightforward accounts in two primary senses -– one “negative,” one “positive” -– the relations of which to one another are profoundly troubled. As we have seen in the interplay of the informational and decisional construals, discussions of privacy typically weave unpredictably between negative and positive conceptions, with uncertain consequences to their ultimate coherence. In its “negative” sense, privacy delineates the need for a freedom from interference, often more particularly a freedom from conspicuous exercises of power on the part of states or other socially organized authorities. And in its “positive” sense, privacy is said to express unique or even definitive forms of individual dignity or integrity, or to affirm contingent cultural values against public challenge, for example specific understandings of property ownership or the proper role of personal reputation.

And so, Ferdinand Schoeman proposes an analogous formulation in his book Privacy and Social Freedom. “Privacy,” he writes, “has two aspects: ‘privacy from’ and ‘privacy for.’ The ‘privacy from’ aspect suggests restrictions on others’ access to a person. But typically there is this other dimension to the concept, the ‘privacy for’ dimension. For instance, I am accorded privacy from most others vis-à-vis my domestic life so that I may form deep and special relationships with family or friends.” In other words, privacy for Schoeman would secure persons from unwanted interference (a negative sense) importantly just so it could thus promote definitive interpersonal associations (a positive sense). Typically, I argue that there is a key, even constitutive, ambiguity (usually disavowed) between privacy as a register of the anxieties occasioned by the insecurity, permeability, and proneness of individual bodies to frustration, humiliation, and error and privacy as a register to the contrary, via the “fruits of the body’s labor” and the “promptings of conscience,” say, of the capacities of individual bodies for creative expressivity, intimate association, and legitimate possessiveness.

Further, especially the putative neutrality, and so the desired universal provocation of assent, and so the imagined foundational force of primarily “negative” conceptions of privacy (or, as it happens, liberty) will typically rely for their intelligibility and efficacy on disavowed, contingent “positive” formulations the assumptions and conclusions of which are less evident and sure by far than those of any thin and broadly affirmed intuitive negativity.

Consider, for example, that Louis Brandeis’s definitive and celebrated formulation of the right to privacy surely threatens quite as much as it secures in its pithy negativity, unless it is buttressed by a host of positive formulations. The whole formulation, once again, is this: “[T]he right to be let alone [is] the most comprehensive of rights and the right most valued by civilized men.” On its own, already, “to be let alone” is at once a promise of autonomy, sovereignty, and individual integrity, but so too a vivid evocation of isolation, vulnerability, and neglect. While Brandeis has provided in Olmstead’s formulation of the right to privacy as “the right to be let alone” probably the most influential of the negative formulations of privacy, he has immediately thereafter qualified its negativity with the positive (and quite contentious) formulation of privacy as “the right most valued by civilized men [sic],” and, more extraordinarily still, has in fact bolstered his definition as well with the positive formulation of the right to privacy as “the most comprehensive of rights” -- quite possibly the most imperial of the positive formulations of privacy on record!

Such reversals, I maintain, are hardly exceptional, but practically define the discursive field of the private as such. Patricia Boling points out that the term Private is “adapted from [the] Latin privatus (past participle of privare, to bereave, deprive, dispossess, rob), withdrawn from public life, deprived of office, peculiar to oneself.” From this Roman evocation of peculiarity to our own modern valorized individuality, from this deprivation of office and agency to our own expression of agency and demand for control, from this withdrawal from public life to our own embrace of the supports of intimate association, from theft and dispossession to private property and self-expression, from the paralysis and seclusion of bereavement to the celebration of autonomy and agency: In The Human Condition, the political philosopher Hannah Arendt states the obvious when she points out that “[w]e no longer think primarily of deprivation when we use the word ‘privacy’.”

“In ancient feeling,” writes Arendt, “the privative trait of privacy, indicated in the word itself, was all-important; it meant literally a state of being deprived of something.” While I do not want in my own account of privacy to deny or disavow this “privative trait of privacy” I do want to propose, in a move that may initially seem a bit paradoxical, that the modern discourses and practices of the subject of privacy can constitute profoundly productive privations, relinquishments or deprivations of ready intelligibility, narrative coherence, confident control, certain prediction which often enough might yield an enjoyment of privacy even as they otherwise exact the cost of real and mourned losses. In Arendt’s words, “[t]his is not merely a matter of shifted emphasis.”

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TVI. Private Nodes in the Net

In the dense literary essay The Tremulous Private Body, Francis Barker conjures up in the person of Samuel Pepys –- the English Restoration-Era diarist and later President of the Royal Society -– the very emblem of a presumably quintessential modern subject of privacy. It is the tableau of the “private citizen in a domestic space, over against a public world,” which Barker then proceeds to decry somewhat wonderfully if histrionically as “merely one of the grossly structural features of a historical settlement… acceded to by means of an extreme and bloody effort,” to whit, “[t]he broad process of transition from the feudal to the capitalist mode of production… and the rise of the modern state [which] provide the general co-ordinates within which the reformulation of the subjectivity appropriate to them can be mapped.”

Although Arendtians might be expected to sympathize with the critique of what Barker describes elsewhere as “the private and privative place to which modernity has increasingly allotted the subject, in a lonely, self-apprehensive, and usually troubled existence at the apparent centre of a febrile ‘consciousness’” I note, to the contrary, that Arendt herself was quite careful in fact to disassociate the modern figure of the private individual from the terrible Greek figure of the solitary individual, whose “life spent in the privacy of ‘one’s own’ (idion), outside the world of the common, is ‘idiotic’ [by which she means, literally, speechless, meaningless] by definition.”

For Arendt, “[t]he emergence of society –- the rise of housekeeping, its activities, problems, and organizational devices, from the shadowy interior of the household [of antiquity] into the light of the public sphere, has not only blurred the old borderline between private and political, it has also changed almost beyond recognition the meaning of the two terms and their significance for the life of the individual and the citizen.” In societies for which political legitimacy requires among other things the effective administration of public welfare, withdrawal from a public so redefined into private life should no longer be mistaken either for a personal recourse into the perniciously depoliticized patriarchal privacy of the oikos (the household or “domestic sphere”) of antiquity with which Barker and many of the more forceful critics of the discourse of privacy seem still importantly to identify it. Arendt goes on to amplify the point: “The decisive historical fact is that modern privacy… was discovered as the opposite not of the political sphere but of the social, to which it is more closely and authentically related.” The personal is, after all, the political. And it is in this context as well that I would read Donna Haraway’s rather oracular suggestion from her extraordinary and influential “Cyborg Manifesto” (to which I will return in the next section) that, “[n]o longer structured by the polarity of public and private, the cyborg [her provocative figure of a transhumanoid hybrid of organism and machine] defines a technological polis based partly on a revolution of social relations in the oikos, the household.”

In opposition to Francis Barker’s Pepys, I believe that Hannah Arendt provides her own image of the quintessential subject of privacy in the Preface to another of her books, Between Past and Future -- the figure of “He” from a vividly evocative parable by Franz Kafka. In the parable, “He has two antagonists: the first presses him from behind, from the origin. The second blocks the road ahead. He gives battle to both.” This scene, in Arendt’s explication, “is a battleground on which the forces of the past and the future clash with one another; between them we find the man… who, if he wants to stand his ground at all must give battle to both forces.” To this, she then adds the intriguing complication: “However, the fact that there is a fight at all seems due exclusively to the presence of the man, without whom the forces of the past and of the future, one suspects, would have neutralized or destroyed each other long ago.”

The predicament of the man in Kafka’s fable is emblematic of what Arendt takes to be a predicament of the modern subject more generally. “The task of the mind is to understand what happen[s],” she writes immediately after quoting Kafka’s parable in its entirety, “and this understanding, according to Hegel, is man’s way of reconciling himself with reality.” In this connection recall that for Arendt the task of political philosophy, and the task she sets herself in particular in the Prologue of The Human Condition is to “think what we are doing.” This concern with the practical and discursive field of agency, this concern with the connection of action and judgment in the figure of the modern subject -- both the disclosure of the subject through the doing of deeds in public, and crucially the reconciliation of the subject to the world of deeds through their meaningful judgment –- preoccupied Arendt’s entire life’s work (on the very day of her death the first page of a manuscript entitled “Judging” was found in her typewriter, planned to be the final volume of her Life of the Mind, itself intended as the complement to and so completion of the gesture begun twenty years earlier in the writing of The Human Condition, for which her personal title was Vita Activa, “the life of action”).

That the predicament of the nameless characters in a parable are read as evoking a more general human quandary is hardly provocative, but it is interesting that Arendt is at pains to insist that even in his namelessness and lack of descriptive detail Kafka’s man is concrete, particular, and embodied: “a ‘he’ as Kafka so rightly calls him, and not a ‘somebody’” (although it is hard not to wonder if Arendt would have drawn just the same lesson of Kafka’s insistence on “the full actuality of… concrete being” here had the figure been “she” -– but I’ll treat that quibble as beside the point). In any case, it could not be clearer that Arendt’s subject is anything but “the disembodied cogito, with its absolute emphasis on the essentiality of thinkingness rather than corporeality… the private subject… [as c]onstituted over against a public world… in isolation from others… and from itself,” which is the harrowing figure of the subject of privacy in Francis Barker’s account. And these deep differences in their two formulations are all the more striking in that the scene through which Arendt would designate the most essential experience of agency for her own subject of privacy is precisely the one that would confirm Barker’s worst suspicions: namely, the scene of judgment and spectatorship.

“His dream” writes Kafka of the man in the parable, “is that some time in an unguarded moment -– and this would require a night darker than any night has ever been yet –- he will jump out of the fighting line and be promoted, on account of his experience in fighting, to the position of umpire over his antagonists in their fight with each other.” David Lloyd and Paul Thomas begin their important recent book Culture and the State (a book explicitly indebted in several of its formulations to Arendt’s work) with this cautionary note: “It has become a virtual commonplace of postmodernity that we inhabit a society of the spectacle. But if, in some analyses, the spectacularity of the public sphere that engages the modern subject is the sign of a new and unprecedented alienation of that subject from active participation in political life, it is important not to forget the extent to which the figure of the spectator has historically been the exemplary, even heroic, type of political subjectivity.” Arendt admits that Kafka would little likely hold out much hope that the man of his parable would ever find his way to the promotion to spectatorship of his dream, suggesting “he” will more likely die instead of “exhaustion, worn out under the pressure of constant fighting… aware only of the existence of this gap in time which, as long as he lives, is the ground on which he must stand, though it seems to be a battlefield and not a home.”

But Arendt wants to draw another lesson from Kafka’s parable than he likely would himself, and has in mind a different proposal and fate for its subject. Both the occasion for forces that would otherwise cancel each other out and the point at which those forces intersect, Arendt suggests an elaboration of the scene in which Kafka’s subject is not so much promoted from “the fighting line,” as deprived of it. And it is this privation itself which produces the vantage from which “he” will “umpire” the forces of antagonism (of which he is still one himself). “The two antagonistic forces are both unlimited… the one coming from an infinite past and the other from an infinite future,” she writes, “but… they have a terminal ending, the point at which they clash,” in the person of the subject himself. And from the collision of these infinite forces she proposes, naturally enough, would emerge a “resultant diagonal whose origin would be the point at which the forces clash and upon which they act.”

To clarify the image, and so possibly make Francis Barker’s horror complete, Kafka’s fighting-line comes in Arendt’s reading of his parable to suggest almost a Cartesian co-ordinate grid. And the subject, buffeted by flows of force that do not so much traverse the axes of this grid as actually constitute them, sometimes contends along with his antagonists on the fighting-line and sometimes instead assesses the scene from the resultant diagonal, but never, in Barker’s repeated and castigatory phrase, “over against” but always instead immersed within the world of the grid itself, never abstracted or apart from it.

Now, in the strange and strangely wistful conclusion of her reading of Kafka’s parable, it seems to me Arendt re-enacts “the man’s” own moving but hopeless pining after “a night darker than any night has ever been yet,” when she insists so carefully and at such great length that “the imagery I am using here to indicate metaphorically and tentatively the contemporary conditions of thought can be valid only within the realm of mental phenomena. Applied to historical or biographical time, none of these metaphors can possibly make sense.” For the inhabitants of the information era, reading her words half a century after they were written, the scene she has staged to evoke the situation of the modern subject is far from impossible, but reproduces instead one of the most commonplace even ubiquitous situations of everyday contemporary life.

The subject of privacy conjured up in Arendt’s reading looks to me like nothing so much as a node in a network: the subject surfing the internet on a desktop computer, publishing a document online or clicking on a hypertext link; or the user of a mobile phone, in conversation with someone on another continent in another time-zone, or playing a game of chess displayed on the phone’s tiny illuminated square of screen with that distant other, or interacting instead with a freely-distributed open source chess program; or a citizen whose location is tracked by satellites, or captured as an image snapped at random by another phone, or by a street-corner surveillance camera on a network feed; or a consumer accessing an account balance on an ATM, or paying for fuel with a credit card number at the station, or scanning groceries at a self-serve check-out; or a patient whose prescription is transmitted from their doctor to an unknown pharmacist for a re-fill, or whose medical history is accessed from a public database by an paramedic on-site at a disaster; or soldiers co-ordinating an offensive maneuver by means of radios and satellites, or activists converging simultaneously upon a protest site by means of the same; or a designer articulating the form of a chair or a toothbrush with a CAD/CAM program to have it instantiated in molded plastic by a robot assembly line on the other side of the planet and then offered for sale in a catalogue that arrives soon after unsolicited at her door.

“Action and speech,” yet again, the conjuration of the field of agency (Arendt’s literal phrasing refers here to “their agent-revealing capacity”) “go on between men [sic]” and “constitute, in the word’s most literal significance, something which is inter-est, which lies between people and therefore can relate and bind them together.” In this premonition of the era of digital networked information and communication technologies, Arendt describes, again in The Human Condition, the world of private individuals “acting and speaking to one another” as the co-creation of an at-once intangible but real and worldly “’web’ [my emphasis] of human relationships,” a “reality… no less bound to the objective world of things than speech is to the existence of a living body.”

In his “Introduction” to the recent book Technology and Privacy: The New Landscape, Philip Agre defines the subject of privacy as inextricably political in precisely this Arendtian sense of producing and maintaining a world of relationships among agents. “Privacy issues,” he writes, “pertain to the mechanisms through which people define themselves and conduct their relationships with one another.” And in a spirit with which I of course quite sympathize, he lists among these mechanisms first of all, “technologies.”

“Those who raise concerns about privacy,” he goes on to say, “propose, in effect, to challenge the workings of institutions. Disputes about privacy are, among other things, contests to influence the historical evolution of these institutions.” By now it should be clear at least that these disputations have preoccupied many practical and institutional discourses, from the law, to literature, and to theory. In the next and final section of this Introduction I mean to return briefly to the stakes that are driving these disputes, to an elaboration of the idea of the subject and to the crisis of that subject’s agency, conjured up both in fears of impotence and fantasies of omnipotence, exacerbated by contemporary technological developments the final significance of which remain profoundly and disturbingly uncertain.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

Take the Neocon Quiz!

[via The Christian Science Monitor] NB: This ain't no Cosmo Quiz. Apparently, the quiz engine doesn't know that there is such a thing as an antimilitarist social democratic world federalist technoprogressive, so it tentatively proposed at the end that I was "liberal." Given the options, certainly that'll do.

TIII. Quandaries of Agency for the Informational Construal of Privacy

I cannot, of course, delineate exhaustively the whole constellation of values and practices that are freshly under contest in this still inaugural moment of emergence and consolidation in the era of digital networked media, and can at best concentrate my attention on a few conspicuous, and I hope definitive, dimensions of the problematic of privacy in this uniquely dangerous and promising moment. And so, in this dissertation I will focus my attention especially on the sense of privacy as a capacity for secrecy.

In the incomparably rich figure of secrecy in particular I find the lens through which best to illuminate what I take to be the three chief registers of the discourse of privacy: the desire for more control over the terms in which personal information circulates in public, the desire to maintain the integrity of the body against violation, and the desire to secure recognition of relations of legitimate ownership.

Although I am keenly aware of the deep differences in the histories, assumptions, experiences, problems, and capacities in play in the enjoyments of and threats to each of these diverse registers of personal privacy, what emerges more conspicuously for me, and what I hope to convey more forcefully in the larger argument of this dissertation, is that in each domain of the subject of privacy under discussion there recurs a certain definitive ambivalence. I began this piece by asserting that the subject of privacy is a crucial figure through which we have come to articulate and negotiate agency in an era of radical technological transformation. The association between privacy and technology is now clearer, I hope. As for the ambivalence that plays out in each of the domains of the discourse of privacy that preoccupy this dissertation, I maintain that it is an expression of an ambivalence at the heart of agency itself.

James Boyle has written that “information is the only resource of [American] civil society that is ‘supposed’ to be distributed in an egalitarian manner; it is the only resource where both microeconomics and the First Amendment seem to push in the direction of free availability and transmission.” On the other hand, he points out, “the idea of privacy is remarkable both in the way it puts control over information – as opposed to any other resource –- at the heart of personhood and in its degree of support for state intervention to give citizens actual control over this resource even when they cannot purchase such control in the marketplace.”

Since one of the consequences of the expanding significance and penetration of digital networked information and communication technologies into everyday life is that we are coming to see ever more of the furniture and experience of material life as themselves decisively characterized in informational terms, it is clear that what Boyle intends to name as exceptional, namely, that “only” information is “supposed to be distributed in an egalitarian manner” is already potentially quite radical in its sweep and in its implications.

It is, however, his next point that I want to dwell on here. Boyle goes on to write: “We see the strength of these embedded – and potentially contradictory ideas of information in each new area of regulation. What we lack is a sense of the connections between the different ideas.” In the argument that follows I maintain that what Boyle has diagnosed as essentially an unresolved contradiction at the heart of the informational construal of privacy (namely, that information wants to be free, but that people, to be free, must have a measure of control over personal information) is better conceived as a productive ambivalence whose interminable negotiation actually constitutes the field itself in which the agency or proper “personhood” of the technoconstituted subject of privacy must always paradoxically make its play.

“How can it be,” asks Judith Butler in The Psychic Life of Power, “that the subject, taken to be the condition for and instrument of agency, is at the same time the effect of subordination, understood as the deprivation of agency?” Through the negotiation of this paradox of subjecthood, a paradox registered in the very term “subject” –- a figure both of empowerment and subordination -– I diagnose a recurring disavowal of interdependency and intersubjectivity that exacerbates the experience of the subject of privacy as a subject of threatened agency, and so I hope I can more successfully convey the reality and extent of the crisis in the intelligibility and efficacy of the liberal subject that has underwritten the urgency of most discussions of privacy hitherto.

But before I go on to sketch the itinerary of the dissertation in greater detail I want first to linger a bit longer over each of the two terms on which these arguments about the subject of privacy will depend most crucially –- that is to say, privacy and the subject.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

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.

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

TI. Privacy As Technocultural Problematic

Legal, theoretical, and popular contests over the meaning and capacity of individual agency repeatedly make crucial recourse to the subject of privacy. And this connection is never more forceful than in those moments when we confront the bewildering contemporary technological transformation of our capacities. As examples of this ever more conspicuous reliance, consider the importance of claims about personal privacy in court decisions and in popular discussions concerning the use of reproductive technologies or the threat of ubiquitous electronic surveillance.

By the "subject" of privacy I mean to refer to two sets of problems at once. In the first place, I refer to privacy as a general topic, a familiar constellation of values, questions and problems in law, in critical theory, and in public policy. Although privacy as a category is widely affirmed and as a right passionately defended, I will show that just what privacy is thought to consist of, depend on, and indeed what it is good for are all matters of debate and general perplexity. And I will argue that these confusions are particularly vexed in the present moment, that they have been brought into crisis by the pressures of recent and ongoing developments in reproductive technology and genetic medicine, electronic textual production and publication, ubiquitous surveillance, and the convergence of these developments in digital networked information and communication technologies.

But when I speak of the subject of privacy I mean to refer in the second place, as well, to the subject as an ethical and political agent -– to the figure of the problematically autonomous, continent, rights-bearing, property-inhering, reasonable, and responsible sovereign subject of the liberal imaginary. I will argue that this liberal subject, such as it is, is significantly constituted through what I describe as discourses and practices of privation. And I propose that both the productive powers and the customary limitations of these operations of privation have likewise transformed, especially through the emergence in recent years of digital networked information and communication technologies, the so-called "new media."

In what ways has our sense of privacy as a capacity for secrecy or for the selective disclosure of information transformed in the new landscape of digital networked media? To what extent is the range of such secrecy expanded by the encryption of information, and to what extent diminished by the application of “panoptic sorts,” data mining, and networked computer profiling? How is our sense of privacy as a capacity for improvisation and experimentation in relative obscurity transformed in the new landscape of digital networked media? To what extent are opportunities for such obscurity expanded by the availability of pseudonymous online gaming and discussion environments, and to what extent diminished by ever more ubiquitous surveillance?

If privacy is a figure through which we register both the urgency of our need for and worries about threats to our bodily integrity and autonomy, what can it mean then when we are exhorted by contemporary authorities waging a so-called “War on Terror” to relinquish a measure of privacy in exchange for greater security? Just what kinds of subjects are imagined to be consoled, just what understanding of agency is presumed to be consolidated by these promises of security at the cost of privacy?

And how has the cheap digital reproduction of texts, and the easy instantaneous global publication and distribution of such texts on digital networks altered the traditional conditions of print-publication that traditionally rendered “copyright” a sensible institutional location for the negotiation of social disputes about the value of texts so disseminated?

I argue in what follows that both the sense and significance of privacy is produced and ritually reproduced by technologically mediated public practices that are undergoing profound and ongoing change. And while there are many discourses and figures available through which to think fruitfully about the dignity and agency of subjects, their problems, conditions and consequences – individuality, personhood, sovereignty, citizenship, authorship, and so on -– I have chosen to focus here on privacy above all. This is because I believe that the discourse of privacy is uniquely freighted with concerns about the threats to and promises for agency introduced by the technological developments in particular that interest me.

What will count in the first place as a subject’s enjoyment of privacy is profoundly constituted through the vicissitudes of technological development. Donna Haraway has proposed, for example, that “[t]echnologies like video games and highly miniaturized televisions seem crucial to the production of modern forms of ‘private life’”. Philip Agre has suggested in turn that “[a] secure telephone line is arguably a precondition for the establishment of an intimate relationship, an interest long regarded as a defining feature of human dignity.” And Sherry Turkle has offered a range of theses concerning the way human-machine interactions, and computer-mediated “virtual” and pseudonymous human interactions have radically transformed our experiences of selfhood and our sex/gender identifications in the most intimate ways imaginable. (And I suppose that now is as good a time as any to belabor the obvious and point out that among the discursive registers of privacy I find provocative one is that we denote by the term “privates,” our genitalia.).

Go to Next Section of Pancryptics
Go to Pancryptics Table of Contents

Epilogue/Problog

Don’t hate the media, become the media. -- Jello Biafra

What I propose, therefore, is very simple: it is nothing more than to think what we are doing. -- Hannah Arendt


One: Social Software as Furniture and as Poetry

I. Dissing Blogging

II. Social Architectures

III. Social Software Sublime

IV. Arendt on Revolution

V. Trippi on Revolution

VI. dKos as Figure

VII. Dean as Figure

VIII. Belly of the Beast

Two: Prologue/Blogpost

IX. Blogos

X. Publicity As Relinquishment: Writing Digitexts

XI. Publicity As Relinquishment: Writing Blogtexts, Hypertexts, Tagtexts

XII. Digital Expressivity, Digital Credibility

XIII. What We Talk About When We Talk About "New" Media

Three: Trouble in Libertopia

XIV. Revenge of the Crystal; Or, Who Are These People?

XV. The Awesome Techno Blossom

XVI. Ethos Move

Go to Pancryptics Table of Contents