BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens.

Question: You think privacy is an ethical value and that it should be a value protected by law and social practice.  What ethical traditions do you draw on in the book?  

I do think of privacy as an ethical value.  I have never developed a comprehensive moral theory of my own and I don’t in this book.  What I do, though, is to suggest that major ethical traditions — utilitarian, Kantian and Aristotelian — provide grounds for taking privacy very seriously.

From a utilitarian perspective, privacy has value as a tool for enhancing long-term freedom and opportunity by, for example, giving us information advantages over others.  But I argue that privacy has dignitarian and aretaic ethical value as well.  Respect for privacy, our own and others, is a requirement of respecting persons as ends in themselves.  Reserve and modesty are ethical virtues and positive character traits.  By the way, as I point out in the book, major religious traditions, including Christianity, Islam and Judaism argue for certain informational and physical privacies.

Question: You defend “privacy paternalism” and argue that liberals can and should embrace it. What exactly is the case for government imposed privacy? 

We live at a historical moment characterized by the wide availability of multiple modes of communication, easily and frequently accessed, capable of disclosing vast quantities personal, personally-identifiable, and sensitive information to many people rapidly.  How can a society enthralled by technology-aided revelatory communication give privacy its ethical due?  The question is imperative as social media and social networking continue to take flight, as cloud computing becomes the norm, and as advances in genomics and neuroimaging create volumes of data that potentially reveal us to ourselves and others as never before.

Just as we paternalistically bar people from selling themselves into slavery, we must paternalistically bar people from privacy-related choices that constrain their freedoms, opportunities, and dignity.  Paternalistic interferences with liberty are called for where market failures, psychological realities, and certain other factors impair the capacity of mature adults to protect themselves from significant harms.  It’s hard for individuals to bargain about privacy with large business concerns.  The complexity and novelty of privacy-compromising technologies makes it extremely difficult for individuals to protect their own privacy.  Not only do educated individuals not necessarily understand the ramifications for privacy of the technologies they use, but we as a society don’t have a clear idea of how voluntary disclosures we make today will bear on our future opportunities.

Question: You say the government already imposes privacy and maybe should do more of it.  What are some examples of unwanted privacies being imposed by government here in the US?  

Of course, the Children’s Online Privacy Protection Act is a central example of unpopular privacy being imposed by the government in the US.  Neither kids nor internet operators were clamoring to be regulated.  (I have asked why the logic of this law — which limits the ability of website operators to collect personal information from children under the age of 13 — doesn’t extend to older teens and at least to young adults, who seem similarly vulnerable.)

In a different vein, I would offer rules and statutes imposing duties of confidentiality on professionals and employees of all sorts as instances of imposed privacy.  As a lawyer, I might prefer to reveal the details of my relationship with a client, but the rules of tort law, state statutes, and professional ethics require me to keep silent.  The burden of silence may be unwanted where it involves allowing a crime to go unsolved or a lucrative book deal to go unexplored.

To be clear, I defend the concept of coercive privacy laws, but I don’t think laws requiring privacy are necessarily a good idea in every context.  For example, I reject the idea of “racial privacy” and argue that, even though it may make sense in the EU context to treat race as a sensitive category of data, the same cannot be said for the United States.  It was a good thing that about ten years ago Californians voted down a referendum that would have changed the state’s constitution to prohibit collecting data about race, even for public health purposes.

Question: Your book is published in the Oxford University Press Feminist Philosophy Series, and yet there isn’t much overt discussion of feminism in the book after the initial chapter.  Do you regard this book as a feminist project?

This book subtly reflects insights gleaned from my encounters over the years with feminist scholarship about privacy, equality and freedom.  What I believe one learns from feminist philosophy and jurisprudence is why just societies must avoid imposing subordinating privacies on people simply because of their sex or race.

My book rejects the notion that there is a generic liberal or liberal feminist case for or against all coercive privacy mandates.  I offer contextually specific assessments of a variety of unpopular privacy requirements, informed by liberal feminist conceptions of privacy, freedom, and equality.

Two of the books eight chapters explicitly address women’s issues.  To explore notions of subordinating and liberating privacy, and voluntary and imposed privacy, I devote one full chapter of Unpopular Privacy to US Muslim women’s modesty attire, and another to US and Canadian Supreme Court nude dancing cases.

Question: What issues ought to be at the top of our agenda for privacy paternalism, and what are your predictions for movement on those fronts?

Ideally, we wouldn’t need much privacy paternalism because everyone would value and protect their privacy on their own.  People would not give it away recklessly or allow it to be taken away easily and unaccountably.  The government and private sector would adhere to human rights,  “fair information practices,” “privacy by design,” and the like.  But arguments and ideologies of free expression, libertarian choice, and free market are powerful counters to privacy promotion and protection.

The education, incentives, and ethical growth needed in order to move beyond privacy paternalism aren’t here yet.  In the meantime, I would like to see shifts in default rules in the direction of privacy and data protection.  I would like to see rules and policies that enable everyone to make informed choices about privacy and data protection.  I support modernization of electronic communications privacy laws that offer functional equivalence to the many ways we communicate today.  I support efforts to enact federal legislation to enhance online privacy protections for online consumers and social networkers.  I applaud the data-breach and other privacy work of the FTC, because I think it creates incentives to take people’s privacy seriously.  I applaud a recent decision of the Department of Health and Human Services to aggressively enforce our federal health privacy standards.  I am guardedly optimistic that through ethics and law we can become a society that takes privacy as seriously as it should be taken.


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