The Electronic Data Give-Away
The Electronic Data Give-Away
With recent US federal data-protection statutes in mind, along with the climate of indifference to privacy suggested by self-revelatory patterns of online conduct and high-tech personal archiving, this Chapter argues that liberals need to think about privacy in a new way. Privacy should be thought of as a partly inalienable, foundational good. Informational privacy meets deep needs, whose satisfaction cannot be left to pure, unregulated choice. The tendency and the willingness to throw away privacy are troubling. The value of privacy is not just the opportunity for optional privacy states, but the experience of privacy and the habits of respect for privacy it constitutes. Since the 1970’s when they first began to analyze privacy in earnest, philosophers have linked the experience of privacy with dignity, autonomy, civility and intimacy. They linked it also to repose, self-expression, creativity, reflection. They tied it to the preservation of unique preferences and distinct traditions. The argument that privacy is a right whose normative basis is respect for persons opens the door to the further argument that privacy is also potentially a d uty. To respect oneself may require taking into account the way in which one’s personality and life enterprises could be affected by decisions to dispense with foundational goods that are damaged when one decides to flaunt, expose, and share, rather than to reserve, conceal and keep. The idea that some forms of respecting privacy reflect what Robert Post (citing Erving Goffman and Jeffrey Reiman) called “civility norms” of deference and demeanour similar illuminate why privacy duties and privacy duties of self-care make sense. Helen Nissenbaum’s analysis of privacy by reference to norms of the appropriateness specific behaviours and the distribution of certain information in social and cultural context has similar implications. If people are completely morally and legally free to pick and choose the privacy states they will enter, they are potentially deprived of highly valued states that promote their and their fellows vital interests. We need to restrain choice, if not by law, then somehow. Respect for privacy rights and the ascription of privacy duties must both be a part of a society’s formative project for shaping citizens. Liberals agree that there is something wrong with being watched and investigate d all the time. As Daniel Solove argues, surveillance can lead to “self-censorship and inhibition". Surveillance is a form of social control. Like surveillance, dispensing with one’s privacy is yielding to social control, and that that impacts freedom, too. Realizing this, the notion that some privacy should not be optional, waivable, or alienable should have instant credibility. But the liberal ideal becomes an ironic joke in a society in which people freely choose to be always in others’ lines of sight, much as it is a joke in a society in which they freely chose domination.
Keywords: freedom, domination, life log, slavery, surveillance, sousveillance, European Union, UN Declaration of Human Rights, Foreign Intelligence Surveillance Act, CALEA, FISA, GLB, HIPAA, FERPA, spam, identity theft, real ID, practical obscurity, Federal Communications Commission, domination, social control, dignity
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