Configuring the Networked Self: Shared Conceptions and Critiques

Configuring the Networked Self is an intellectually exciting, engaging and challenging book. The directness and analytical clarity of the book are real virtues.  Cohen seeks to employ insights from human capabilities theory, along with the language and tools of European post-modern thought to offer a better theoretical understanding of policy options for contemporary copyright and privacy law. The book is aggressively (and I would suggest, needlessly) anti-liberal; but liberalism is not the only theoretical approach Cohen finds deficient.  In her view, feminism, law and economics, utilitarianism, and legal pragmatism are not fully adequate to meet the demands of information-age problem solving.

I have a number of concerns about the book. A global concern is that it targets a highly stripped-down “straw man” version of liberalism, reduced to three propositions.  Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls.  If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation.  In this symposium, I will take the opportunity to offer a few comments focused on some of Professor Cohen’s views about privacy.  First, I want to point out how congenial some of her perspectives are, even to a liberal like me.  Second, I wish to point out what I believe are some interesting mis-directions in her analysis.

  1. Congeniality

I must begin by pointing out that I am a self-professed progressively liberal feminist.  My three books on privacy (Unpopular Privacy: What Must We Hide (2011); Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (2003); Uneasy Access, Privacy for Women in a Free Society (1988) celebrate robust freedom of thought and action, of course, but also celebrate equality, accountability, tolerance, and mutually respectful relationships.

In my 1988 book I presented privacy as a broad “umbrella” concept encompassing seclusion, solitude, secrecy, confidentiality, modesty and reserve; I advanced a definition of privacy influenced by Ruth Gavison as “the inaccessibility of persons and information about them to the senses and surveillance devices of others.”  I defended privacy as a value against feminist critics for whom privacy was synonymous with domination and subordination.  I have not prescribed a definition of privacy tailor-made for the Internet era.  However, my most recent work (the 2011 book) relates to the question of whether privacy protection should be left to individual choice, especially in light of the Internet age’s penchant for revelation.  Earlier work (the 2003 book) considered the extent to which accountability demands “outweigh” privacy demands.  Recent papers in the California Law Review (2010) and the Penn Journal of Constitutional Law (2012) concern whether privacy tort law and First Amendment privacy jurisprudence (respectively) serve progressively liberal socio-political goals relating to equality and respect for women, racial minorities, and LGBT communities.

Cohen purports to reject (pp. 16-21) liberalism as false, contradictory, and impractical.  Yet, despite its anti-liberal and post-modern packaging, I find Cohen’s “reimagined” definition of privacy and the pride of place she give it in the pantheon of values both familiar and congenial.  This may because, as they say, everything old is new again.  I read her interdisciplinary perspective as nearly a patchwork quilt of the better elements of ancient, medieval, modern, and contemporary liberal and post-modern theories.

To begin with, Cohen embraces classical teleology and recent human capabilities theory. Human flourishing is a concept of human well being with its deepest roots in Aristotle’s Nicomachean Ethics, Western culture’s first systematic account of ethical value.  Even thinkers who reject Aristotle’s teleology in favor of utilitarian or deontology approaches share some version of the notion that human “nature” and related well-being matters in political, social life and moral life.  For Aristotle, eudemonia (εὐδαιμονία) was a principal end; virtue and practical wisdom is principal means.  Aristotle’s vision has been reworked for modern applications by classist, feminist and legal theorist Martha Nussbaum, among others.

What is termed a “human capabilities” approach to norm-promoting in the human development realm — associated with Amartya Sen, Nussbaum and others and grounded in multivalent conceptions of human flourishing — has had broad appeal in recent times.  Yale public health policy scholar Jennifer Prah Ruger employed it in her book, Health and Social Justice (Oxford 2010), as did Jennifer Ruger and now Cohen.  Ruger argued that health is a vital condition of human flourishing; and Cohen maintains that privacy (defined as “the process of differential boundary management by situated subjects,” p. 248) is such a condition—an “indispensable enabler of the process of subject formation.”

When it comes to “subject formation,” there is a tension—one that I believe crosses the boundaries of all extant moral and social theories—between meeting imperatives with respect to what a person or subject reflects, claims, and seeks as his/her identities and meeting imperatives with respect to enabling the capacity of a person or subject to reflect, claim, and seek alternate identities.  In my privacy law classes, I assign the Italian philosopher Pico Della Mirandola’s famous humanistic encomium to the dynamic versatility of human beings make themselves as they will, the “Oration on the Dignity of Man.”  This 15th century text can be read, either as a surprisingly modern-sounding but pre-liberal celebration of human autonomy or as a post-modern call to play: “Neither a fixed abode nor a form that is thine alone nor any function peculiar to thyself have we given thee, Adam, to the end that according to thy longing and according to thy judgment thou mayest have and possess what abode, what form, and what functions thou thyself shalt desire. …”.

Cohen understands privacy as “the process of differential boundary management by situated subjects,” p. 248.  To help explain what she means she relies on an article by Irving Altman that, for decades, has influenced my thinking about privacy.  She also appears to have been influenced by an oft-cited article, which appears in her bibliography, by American University philosopher Jeffrey H. Reiman. [“Privacy, Intimacy, and Personhood,” Philosophy & Public Affairs Vol. 6, No. 1 (Autumn, 1976), pp. 26-44.]   In response to an emerging body of literature from the 1970s in which liberal moral and political philosophers  (including Judith J. Thomson)  argued, in effect, that privacy enhanced personhood, Reiman argued that privacy was instead more of a precondition of personhood.  Reiman articulated a conception of privacy as the social rituals through which persons comes to think of themselves as a separate and distinct from others.  Without privacy there would be no persons, no subjects, no selves.  Far from being committed to obscurely transcendent selves, some liberal philosophers of privacy have long appreciated respects in which social practices, some intentional, some not, are dynamically responsible for selves.  They have understood that “boundary management” is an important dimension of what it means to have, want, expect and confer privacy.

For Cohen, the “self” is “situated.”  She faults liberal theorists for perpetuating a conception of selves as abstract and unembodied. (She doesn’t think privacy feminists’ contextualisms or Helen Nissenbaum’s privacy-as-contextual integrity or Solove’s pragmatism go far enough in pushing an understanding of self as “situated.”)  Faulting liberalism for failing to “see” that selves are not abstract and un-situated is a decades’ old move that predates the Internet.  Consider the thrust of Harvard political theorist Michael Sandel’s neo-republican critique of John Rawls, dating back to the early 1980s.  In his book Democracy’s Discontent: America In Search of a Public Philosophy (1998), Sandel doesn’t theorize the Internet but he faults the Supreme Court’s privacy jurisprudence for too often operating with a notion of privacy as an autonomy interest.  Sandel argues that privacy is better understood as an interest individuals have in the freedom from state or other outside constraints that impair the ability of moral agents to meet obligations and fulfill desires deeply rooted in their “encumbered” selves.  The encumbered self, like the situated self, is defined by material conditions, including histories and relationships not of its own creation.

Cohen’s situated self is constrained and unconstrained in some different respects than Sandel’s encumbered self, but the concepts of situated and encumbered selves are both products of critical rejections of Kantian and Rawlsian liberalism.  Those critical rejections have lead to refreshed liberalisms.   Liberal scholars, including Will Kymlicka, have sought in interesting ways to incorporate the undeniably situated/encumbered self into revisoned notions of liberal democracy. “Despite” my liberalism, I find Cohen’ emphatic depiction of users of networked technologies as “situated” rather than abstract, transcendent selves completely friendly.

II. Mistakes

I believe Cohen exaggerates the errors and limitations of privacy scholarship.

First, Cohen exaggerates the extent to which privacy scholarship focuses only on information and transparency, neglecting the spatial dimension of privacy.  (I found puzzling her related assertion that privacy theorists focus on “visibility” to the detriment of “exposure:” Big Brother is about visibility, but the protagonist of Orwell’s that novel is awash with anxieties of exposure.)  I believe she has formed this mistaken view in good faith, but because she is reading and engaging internet/digitally oriented “information society” scholars and scholarship to the detriment of others.

I would assert that analysis and recognition of physical, geographical, bodily and other spacial privacies are well-represented in the philosophical, legal and social science literatures.  Indeed, my aforementioned book (Unpopular Privacy) pairs chapters on physical privacies (tied to homes, other places of seclusion and bodies), with chapters on confidentiality and other information privacies relating to social networking and life online. This pairing of physical with informational privacies is based on a belief that to understand the normative grounds for neglected and devalued informational privacies, it helps to understand the normative foundations of deeply valued physical privacies.

I have always found it extremely important to begin my privacy law course with common law privacy tort law.  That body of law (intrusion upon seclusion, publication of private fact, discourses of freedom, modesty, and inviolate personality)  emphasizes spatial, bodily and domestic dimensions of privacy and related rationales for privacy protection that historically and philosophically carry over into the realms of online and offline information privacy.  To get federal laws like GLBA, HIPAA, and FERPA or to appreciate the FOIA exceptions or ECPA or FISA, it helps to get Warren and Brandeis, DeMay v Roberts, Pavesich.   Cohen’s point that people (situated selves) affected by off line surveillance and online monitoring may experience these things “spatially” comes as no surprise to me.  I agree, as she argues on p. 141, is that the spatial dimension of privacy is relevant not only to physical spaces but also to the ongoing debate about privacy interest in online conduct ( p. 242).

Second, Cohen asserts that the consensus view is that there is no expectation of privacy in public places.  Yet many privacy scholars share her substantive views.  Courts and officials say that there can be no privacy in public places, and that surveillance hence poses no privacy issues.  But I am not so sure many liberal or non-liberal privacy theorists share that simple-minded view.  I defended the idea of privacy in public way back in my 1988 book;   Helen Nissenbaum has done so for a decade or more; and I do it again, in an short essay on urban surveillance, in response to New York City’s post 9/11 “ring of steel.”  [Driven into Society: Philosophies of Surveillance Take to the Streets of New York,  Amsterdam Law Forum, Vol. 1, No. 4, 2009.]

Third, Cohen presents her book as offering a superior read on contemporary problems and as pointing a clear, more logical path to resolving problems.   Yet, for the most part readers of Cohen’s book will not find a scholar whose concrete proposals for policy are at odds with the mainstream.  On pp. 252-253, for example, she rejects the notice and consent regimes found in so much US privacy law and policy.  Pointing out the inadequacies of the notice and consent model is a standard “move” among privacy scholars today.  Her calls for substantive data and privacy protections that may not allow for waiver are more radical; but they do they depend for articulation on her non-standard post-modern methods.  Indeed, I was struck by how similar her conclusions are to some I have reached from the vantage point of liberalism.  I argue in Unpopular Privacy that liberalism embraces foundational goods essential for well-being that should not be subject to forfeit under regimes that offer pseudo-choices rather than meaningful experiences of privacy.

I end with a final observation.  Cohen’s important book focuses primarily on the privacy and subjectivity of the user of the Internet/web.  And her paradigm for her readers is the situated self in the café with a laptop, browsing the Internet and maybe doing something embarrassing that might get caught on a surveillance camera or webcam.  But what really is the “situation” of the situated self she asks us to reflect on?  Why is he or she there in a cafe?  Luxury café culture? Escape from a household of domestic abuse?  Looking for employment in a poor economy? What is she asking, needing, expecting of the internet?

Cohen “gets” the offline problems, to a great extent, but I would have liked more analysis of the subjectivity, privacy, and needs of situated selves in so far as they are non-users affected by internet/web use.  I would have liked more systematic discussion of the issues raised by Tyler Clementi, Amy Boyer, and social networking/electronic records privacy invasion victims like Candance Yath.  More about the Boring family and its failed suit against Google.  Is the privacy of such people adequately understood using the same framework we use to think about the hypothetical café visitor online on his/her laptop?  What does means to be a situated self in a Rutgers dorm room; what does it means to have an interest in boundary management when a high school acquaintance stalks and plots murder or Google trespasses on your private property; and  what does the interest in identity play amount to when you get an STD from an extramarital affair?  Cohen’s book stresses the conditions of human flourishing.  Two such conditions, along with privacy are surely civility and safety. How do differences in power, in class, in gender, in race and in sexual orientation matter in the pursuit of these conditions?

You may also like...

26 Responses

  1. I don’t mean to be snarky (and I have nothing to contribute to this delightful discussion), but is there a difference between “I am a progressively liberal feminist,” and “I am a self-professed progressively liberal feminist?” And does “progressively liberal” connote progress toward “radicalism,” an aspiration, or one who is at once “Left and liberal” (or something else altogether)?

  2. Anita Allen says:

    You got it!
    — I meant to signal with that awkward language that
    I am not merely a libertarian, and not merely a centrist liberal moderate; that I am committed to complete social and political and legal equality for women, people of color and the lgbt community. I added the words “self- professed” to signal that I fully embrace the words that in fact describe me. Its like “card carrying” member of the aclu… Redundant emphatic.

  3. Thanks! I’m on that side of the assembly too, for what it’s worth, although I now interject the adjective “religious” before Leftist.

  4. Orin Kerr says:

    Very interesting post, Anita.

  5. Julie Cohen says:

    Anita, thanks so much for these thoughtful comments. A couple of thoughts:

    First of all, I’m in total agreement with this observation: “Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls. If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation.” I think, however, that the theorists you mention become plausible precisely to the extent they seek to move away from what I characterize as liberalism’s assumptions about the nature of the self, and emphasize instead liberalism’s constitutive values and aspirations. This is a distinction that I make and depend on in the book (e.g., pp. 29, 149-51).

    And, for that reason, I have to plead not guilty to the charge of “illiberalism.” “Postliberalism” is more accurate (e.g., p. 126; see also pp. 29-20 and Ted’s post earlier today) — i.e., not either/or, but both/and. From where I sit, the divide between “liberal” and “postmodern” thinkers is not solely or even mostly the result of postmodernist rejection of liberalism; it is equally the result of liberalism’s reflexive rejection of and distancing from postmodernist thought even when it is extraordinarily useful for understanding the predicaments in which we now find ourselves.

    As to contemporary privacy scholarship, my only quarrel with Helen’s work, which isn’t really a quarrel at all, is that she doesn’t really focus on the self. Her work on context and privacy in public is spot-on. I see our projects as complementary. My only quarrel with your 2011 book is that it wasn’t available for me to draw on before I submitted my manuscript in mid-2010, or even before I finished copyedits in mid-2011. It has a very prominent place on the list of books I wish had come out earlier! And of course I think your emphasis on physical privacies is absolutely right, and essential… which is why I’m so delighted you were able to participate here.

    Finally, I do hope the book doesn’t read as though the user in the internet cafe is the paradigm case of the networked self… but if it does, then you’re right to criticize. I tried to make clear throughout the book that networked technologies must be assessed for their varied effects on experience both online and off. In that chapter (6) a wider range of examples would have been useful.

    Again, many thanks! – Julie

  6. Anita Allen says:

    Julie Cohen’s provocative effort to forge a comprehensive non-liberal account of privacy and copyright in relation to the internet age is an enormously useful contribution to scholarship. She pushes us to do better. I am intrigued by Cohen’s comment here that “From where I sit, the divide between “liberal” and “postmodern” thinkers is not solely or even mostly the result of postmodernist rejection of liberalism; it is equally the result of liberalism’s reflexive rejection of and distancing from postmodernist thought even when it is extraordinarily useful for understanding the predicaments in which we now find ourselves.” It would be interesting to study where such distancing stands today, over all; and to understand the material conditions of academic professional life (mentorship, language competencies) that surely perpetuate such distancing.
    If we judge by the most vocal and calcified exemplars of any school of thought, the walls look higher and less penetrable. There are contrasting overall disciplinary and regional intellectual cultures, but it seems to me that the boundaries between liberalism and post-modernism are fairly porous at this juncture.
    I don’t think privacy scholars are indifferent to the substantive insights of European and post-modern thought, though we do not typically employ the discourses and methodologies all out, as Cohen does. While schooled in the liberal analytic philosophical tradition, I regard Foucault’s work on the “medical gaze” as enormously useful for thinking about medical privacy; I used and cited his The Birth of the Clinic: An Archeology of Medical Perception (Smith Translation, 1975) in my book “Why Privacy Isn’t Everything,” p. 120. I learned from post-modernist studies of the “flaneur” and cited relevant work (on p. 31) in “Unpopular Privacy,” in my discussion of physical privacies; I also cited post-modernist studies of “the hut,” in relation to ideals of seclusion in modern life and literature, p. 30, along with the work of seminal European philosopher Gaston Bachelard (“Poetics of Space”).

  7. Matt says:

    I haven’t read the book, so it’s possible that this issue is addressed in it, but I’d be interested to hear more about how the so-called “postliberalism” in it is joined with the capabilities approaches of Sen and Nussbuaum. Both Sen and Nussbaum are paradigmatic liberals, after all, and Nussbaum is both personally hostile to much postmodern thought (not, I think, Foucault, who is arguably not properly grouped with many who normally fall under the “postmodern” label, but certainly to Derrida, Judith Butler, Lyotard, etc.) and also has a view that is meant to capture and “objective” and timeless account of the human good- one that can be realized in different ways, of course, but that explicitly has its origins in Aristotle, and that is pretty hostile to strongly anti-essentialist views often associated with postmodernism.

  8. Julie Cohen says:

    I call out this hostility as a deficiency that compromises the potential for the capabilities approach to achieve its goal of fostering human flourishing in the spaces where people actually live. The capabilities approach supplies the normative lodestar, but the full array of thinking on the human condition is necessary to begin to fill in the gaps in our understanding of the lived experience of network users. (As you recognize, there are many flavors of anti-essentialism, some more plausible than others. Approaching everyday experience as simultaneously constructed and “real” does militate against heavy reliance on those who argue that everything is socially constructed all the way down.)

  9. Frank Pasquale says:

    I learned a great deal from this critique—thank you for being part of the symposium. We’re really honored to host a philosopher and lawyer whose views have so profoundly shaped leading thinkers on privacy in the US over the past two decades.

    I want to offer a defense of Cohen’s path to rejecting notice and consent (N&C). I think that “differences in power, in class, in gender, in race and in sexual orientation” are very important to N&C’s viability. N&C works best for the privileged: those with the monetary, social, and cultural capital (as well as the time) necessary to invest in monitoring and calculation. I look forward to reading Unpopular Privacy’s liberal account of why N&C can amount to little more than a “pseudo-choice.” Rather than undermining that liberal critique, Cohen may be helping us develop an overlapping consensus to support it.

    For example, as we engage in the particularized analysis that Cohen’s method endorses, concerns about N&C might arise organically from observation of competitive dynamics. Scott Peppet has elaborated on these dynamics in an article describing the “personal prospectus” as an increasingly mandatory model of self-presentation. (at

    Peppet observes that individuals are increasingly volunteering information about themselves in order to stand out from the crowd. (For example, job applicants can easily certify themselves as “drug free” and include that information on their applications. Or a person with particularly outstanding genes may some day append certification to that effect to a job application or even a dating site profile.) When such self-disclosure reaches a critical mass, a tipping point is reached, and everyone essentially must disclose in order to avoid being stigmatized as someone with something to hide. (Imagine, for instance, trying to get a mortgage without permitting the bank to look at one’s credit history and score.)

    Cohen’s cultural approach is particularly useful in identifying the coercive, destabilizing, and frankly dystopic dimensions of this development. A rights theorist might look at it and say: “well, they had the right to decide whether or not to apply for that job, that mortgage, etc; no one’s rights have been violated here; everyone consented.” And a utilitarian might adduce data purporting to show that social welfare will be improved in an omnopticon. But the literature Cohen calls to our attention (including STS, continental philosophy and social theory, and anthropologically grounded fusions of positive and normative analysis) clarifies the feelings of unease that may arise as “transparent citizens” (Reidenberg) enter this “full disclosure future” (Peppet, as described here:

    But I will happily concede that this post has inspired me to re-engage with liberal approaches. I may be underestimating the depth and breadth of that tradition’s account of human flourishing. I once took a seminar with Peter Berkowitz on “Virtue and the Making of Modern Liberalism,” and he often reminded us that too few scholars seriously engage with the final third of Rawls’s Theory of Justice (which illuminates the moral psychology of liberalism and describes the “social union of social unions”). I hope to do so as soon as I get a few writing projects out of the way.

  10. Matt says:

    A rights theorist might look at it and say: “well, they had the right to decide whether or not to apply for that job, that mortgage, etc; no one’s rights have been violated here; everyone consented.” And a utilitarian might adduce data purporting to show that social welfare will be improved in an omnopticon. But the literature Cohen calls to our attention (including STS, continental philosophy and social theory, and anthropologically grounded fusions of positive and normative analysis) clarifies the feelings of unease that may arise as “transparent citizens” (Reidenberg) enter this “full disclosure future”

    I guess I’d want to insist that what this argument shows, if it’s right, is something like that, if we properly understand what rights people have, then the rights of the people in the first example are not properly being respected, and that the utilitarian is wrong in his calculations in the second (or, perhaps also and better, that utilitarianism isn’t the right approach to all aspects of life.) But those arguments can be, and frequently are made, in main-stream liberal political theory and philosophy. Given that, it’s not at all obvious that we need to leave behind liberal political philosophy in any serious way to address the concerns there.

  11. Anita Allen says:

    Thanks for your helpful comment.
    I try to suggest in my recent work that liberals have unexploited resources within their own normative frameworks. (I happen to think feminist philosophy, including Nussbaum’s has made this pretty clear, so I don’t try to reinvent that wheel, I just roll with it in my work on privacy.) Liberals are not stuck sticking people with all of their ill-advised free choices. (Recall Casstein and the book “Nudge”) This is one way some liberals go, but it is not the only place liberalism can take us. Famously, liberals do not have to allow that people have a right to choose slavery or extreme self-degradation. Liberals can say: some acts and patterns of behavior tend to undermine core liberal values and commitments. We have to contrain some choices, even paternalistically to preserve and train important liberal capacities and futures. It may seen wrongheaded to some postmodern theorists that liberal “default” to choice; and that liberatarian often get stuck there. I refer with concern to “The Age of Revelation” in my work and, like Cohen and others, also explore the “unease that may arise as “transparent citizens” (Reidenberg) enter this “full disclosure future””. I don’t think Cohen needs to attack liberalism per se, because I believe liberalism is an alternative discourse for pointing to the very same phenomenon she points to and can also point to practical policies to address them– like getting ride of the existing GLB notice and concent regime.

  12. I agree with Anita’s contention (and I’ve yet to read her work but now look forward to doing so) that “that liberals have unexploited resources within their own normative frameworks,” in particular (but not exclusively), in the works of Kant and J.S. Mill, the former often ill-understood and caricatured by those proclaiming allegiance to “post-modernist” perspectives. Kwame Anthony Appiah’s book, for example, The Ethics of Identity (2005), reveals much in Mill’s works that is forgotten, ignored, or insufficiently publicized in the relevant literature, and Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy (2009), suggests areas of Kant’s legacy insufficiently understood or appreciated. Even Hobbes still has much to teach us, as S.A. Lloyd’s two absolutely brilliant books on his political philosophy attest. And it seems of late, philosophers have a renewed appreciation of Adam Smith’s moral philosophy and the sundry possibilities with regard to moral psychology in several of the Scottish moral philosophers (including Hume). The academic world is of course prone to fads and fashions, and the pressures to be “original” or relevant find folks hankering after something new that appears to go beyond the old or puts them at the proverbial cutting edge. That’s all understandable and sometimes harmless if not productive (over time), but young scholars being socialized into these intellectual traditions may have failed to sufficiently explore the historical resources found in the Liberal tradition (I would include Marx here) that, after all, have played themselves out in so many ways to our collective benefit. And legal theory/philosophy of law folks have an exquisite concrete example of exploiting the resources of the Liberal tradition to full and creative effect in Alan Brudner’s Constitutional Goods (2004).

    For Anita: the quote from Pico Della Mirandola’s Oration reminded me of William Godwin’s definition of perfectibility in his Enquiry Concerning Political Justice (1793) as well as Condorcet’s conception of same. Liberalism has not exhausted its capacity to enlighten us.

  13. Anita’s quote from Pico Della Mirandola also reminded me of the importance of the Humanist tradition and philosophy more broadly, which of course precedes Liberalism historically and is somewhat wider in compass. It has undeservedly drawn polemical scorn from many quarters: philosophers uncritically enamored of technology, ecologists, post-modernists, contemporary Darwinists of all stripes (evolutionary psychologists, sociobiologists, neurophiles, etc.)…. The continuing relevance and importance of the humanist tradition is finely evidenced in Kenan Malik’s work: see, for instance, his Man, Beast, and Zombie: What Science Can and Cannot Tell Us about Human Nature (2000).

  14. Valerie Steeves says:

    At a theoretical level, I don’t think Julie’s work on subjectivity and Anita’s work on liberalism are necessarily at cross purposes. The empirical work on the lived experience of online privacy is rife with evidence that privacy is an integral part of identity play and that subjectivity arises from intersubjective communication that seamlessly melds the embodied with the virtual. But the view of the self/subject as social constructed is not necessarily a postmodern one or, perhaps more precisely, a post normative one. After all, it’s grounded in Mead’s work in the 1920s, when he and the rest of the Chicago School were engaged in conceptualizing how democracy could flourish in a mediated and distanciated environment. As Habermas so famously posits, Mead took the linguistic turn well before postmodernism and without abandoning the democratic project. So social constructionism doesn’t have to be at odds with liberalism. On the other side of the picture, Anita’s interest in equality certainly resonates with the postmodern concern that local experience can help us avoid any essentializing logics that privilege a unitary view of personhood. What I liked about Julie’s approach was that it was pragmatic – given the gaps we see in our current legal thinking, what other perspectives can help us deepen our thinking and ultimately help us to develop better policy?

  15. Julie Cohen says:

    The American pragmatists, notably Dewey, also engaged with social constructionism. Social constructionism is impossible to avoid, regardless of where you start. Much of my dissatisfaction with the liberal approach to privacy can be traced to the fact that starting with the autonomous core and attempting to factor in social construction necessitates some really awkward conceptual gymnastics.

    Again, though, within a postliberal methodology, none of these approaches would need to be at odds with the others; each simply would need to abandon (or at least temper) insistence on its own primacy.

  16. Valerie Steeves says:

    Precisely why we need Mead. Dewey was drawing heavily on his colleague Mead when he was writing, so fairly early on the liberal project engaged with a socially constructed notion of the self. It’s a particularly fruitful engagement for our purposes, because Dewey, Mead and the rest of the Chicago School were concerned about the potential for democracy in a world of technologically mediated communication. What goes around … I take it you’re not a fan of Habermas but his conceptual gymnastics nicely tie the ongoing project of liberal democracy to the kinds of subjectivity you outline in the book through the notion of communicative rationality.

  17. A.J. Sutter says:

    Folks, even I myself have occasionally been caught turning the pages of your Habermases, your Baudrillards and whatnot. But it is really striking that all this talk about democracy is pitched to whizz way above the heads of the those whom it would help. Come on, was your Chicago boy Mead really thinking he was “engaged in conceptualizing how democracy could flourish in a mediated and distanciated environment”? If your goal is that more Americans and others should be aware of what’s at stake here, how about trying to communicate these issues more effectively? Who exactly is the us that liberalism can still enlighten, if this is how it’s spoken of? Speaking of construction, look at this guy John Searle — like him or not, he’s able to speak in plain English. And he’s just an unsophisticated analytic philosopher. So it can’t be so tough to do. Would anyone like to take a crack at re-phrasing one of these comments likewise?

  18. Anita Allen says:

    I think “engaged in conceptualizing how democracy could flourish in a mediated and distanciated environment” relies for its clarity (and it was clear to me!) on a distinction
    between the modes of relatively “direct” (if elitist) democracy imagined and practiced in the BCE in a small city state like the polis of Athens and the modes of democracy seemingly required by large, highly institutional nation states in 19th, 20th and 21st centuries. Recall Bush v. Gore– “democratic” election of the president?! As for John Searle, look at p. 81 paragraph 2,of the book on Social Construction you refer us to, and tell me again with a straight face that he is/was a paradigm of clarity!! Not! 🙂 Analytic philosophy (in which I was trained may yers ago) is great, but it’s truly incomprehensible to most people. Most of us academics use and perpetute the specialized vocabularies in which we are trained. All of us lawyers have to ask whether policy makers can “hear” our recommendations if we decline to speak “plain” English, French, German etc. Julie Cohen could effectively convey her sensible concrete policy recommendations to Capital Hill or the FTC, wouldn’t you agree?

  19. JoeJP says:

    I would largely agree with the first comment’s sentiments but well I too have an aside.

    I find the word “assert” somewhat combative. I often see it used in a negative way. A person doesn’t “argue” something. They “assert” it, which to me implies that they really aren’t on some level intelligently doing it. They are merely “asserting” something in a somewhat empty gesture.

    Anyway, I appreciate the discussion, including the many aspects of “privacy.” Justice Stevens in Whalen v. Roe in a footnote cited “privacy” having three aspects. Prof. Allen in a collection on Roe v. Wade noted four (as I recall). But, often many limit it to one or two, so who you marry is not “private” because people know while “privacy” has various connotations.

  20. Anita Allen says:

    Joe JP:

    I now think there are, for better or worse, at least 6 senses of privacy at play in the law, not four. (I am describing not prescribing usage.)

    Quoting from the footnotes in my forthcoming article in the Journal of Constitutional Law, for convenience:

    By “physical privacy” I mean limited spatial and sensory accessibility to others, such as when one is secluded alone at home behind closed doors and when one is free from non-consensual touching.

    By “informational privacy” I mean limited access to personal or sensitive data, confidentiality and anonymity. I will sometimes include the federal courts’ First Amendment “anonymity” jurisprudence in what I refer to here as “informational privacy” jurisprudence. Anonymity is an aspect of informational privacy in the straightforward senses of limited access to information about persons (namely, information concerning their identities) or control over information about persons (again, information concerning their identities).

    By “decisional privacy” I mean non-interference with certain intimate choices such as birth control, abortion, marriage, medical care and consensual adult sexual partners.

    By “associational privacy” I mean freedom to form and maintain exclusive social and political groups.

    By “proprietary privacy” I mean ownership and control of the use of attributes of personal identity, such as voice, name, and photographic likeness.

    By “intellectual privacy,” I mean the freedom to think about, read about and discuss ideas. See Neil M. Richards, Intellectual Privacy, 87 Tex. L. Rev. 387, 389, 403 (2008) (“Intellectual privacy is the ability, whether protected by law or social circumstances, to develop ideas and beliefs away from the unwanted gaze or interference of others. Surveillance or interference can warp the integrity of our freedom of thought and can skew the way we think, with clear repercussions for the content of our subsequent speech or writing. The ability to freely make up our minds and to develop new ideas thus depends upon a substantial measure of intellectual privacy. In this way, intellectual privacy is a cornerstone of meaningful First Amendment liberties.”).

  21. A.J. Sutter says:

    Anita, thanks for your reply. I’m not sure which paragraphs you mean, but even agita couldn’t make my face more serious as I tell you that I went from p. 80 through p. 82 without much difficulty. Searle’s expression there wouldn’t make great Congressional testimony, but I found it much easier to follow than some of the comments in this thread or much of the first and last chapters of Julie’s book.

    I recognize that academics have their customs and that these customs explain the preponderance of jargon. (And yes, some analytic philosophers are pretty jargonized, I’d have to agree.) What I’m trying to suggest is that the concurrence of those customs and this particular jargon isn’t such a good idea. In the course of writing a book and some magazine columns during the past four years I’ve read a great deal of dense material outside my academic training (physics and law), in five different modern languages and including, among others, econometrics, “management science,” political economy, ethics, environmental economics, phenomenology and philosophy of biology, plus legal philosophy. Some of these came from French, German, Italian or Latin American academic traditions quite distinct from the Anglophone ones. Yet only the most mathematized economics papers were more opaque than the cultural studies style exemplified in Julie’s book and in some posts in this symposium. By comparison, Husserl was a ripping yarn.

    Julie has previously explained that she didn’t feel ready to change her idiom for this book, but I think she missed a tremendous opportunity by not doing so. Since folks like you and she already have tenure, what do you have to lose by being clearer, especially if you have worthwhile things to say, as you both appear to? Certainly people who understand the jargon will still understand you, and so will many other people as well. And the latter category includes many intelligent readers of this blog who are deeply interested in the issues you and Julie are talking about, despite their not being initiated in the priestly vocabulary.

  22. JoeJP says:

    I appreciate Prof. Allen’s reply, including her taking the time to summarize her views.

  23. Julie Cohen says:

    AJ, with respect, I think you’re missing a thing or two here. You obviously have more background than the average person in analytical philosophy, economics, and law, but that just means the jargon in those literatures has become relatively invisible to you. It doesn’t mean that it isn’t there.

    The “natural” discourse of law isn’t jargon-free. Legal discourse is permeated with influences from many of the fields you cite, and it’s been relatively free of influences from cultural studies and similar fields, hence the apparent opacity of the language. That observation, though, doesn’t address the question whether the language of cultural studies is a language that lawyers ought to learn. With the caveat that there are better and worse examples of cultural studies-speak, I think it is. If legal types appreciated the importance of learning some cultural studies language and took the trouble to try, it would seem less opaque to them. And if cultural studies types want to influence law more directly, they ought to consider how they might meet the lawyers halfway. My book is simply an opening move in what I hope will become a sustained dialogue among academics who study information, and then percolate into the information policy sphere.

    Which brings me to my final point: You sound aggrieved that I chose to write this book for an academic audience, but that seems silly to me. You have to start somewhere, and I started in my native territory (and I’m gleeful to note that in so doing, I behaved consistently with my own theory about the play of everyday practice in cultural landscapes – see Ch 4). It doesn’t follow that I’ll write the next book that way. I also hope, if the ideas I’ve developed are worthwhile, that I won’t be the only one writing about them. In other words, what you ought to be saying is not “why didn’t you write this book for me, you missed a tremendous opportunity” but “wow, this looks interesting, there’s a tremendous opportunity here, would you (or somebody) please take the next steps and translate?”

  24. Anita Allen says:

    Thank you for a week of brilliant, thoughtful engagement.

  25. A.J. Sutter says:

    Julie, I understand what you’re saying. I won’t quibble here about what jargon is visible or invisible to me personally. And far be it from me to begrudge your glee. I can even see that a percolation/”trickle-down” process of dialogue could make sense in the context of the academic job market. But if you sincerely want to engage in dialogue, it’s probably not a good strategy to expect your interlocutors to come to you, such as expecting legal types to learn cultural studies jargon. International diplomacy, where fractious neighbors have little choice but to negotiate and compromise with each other, isn’t the relevant metaphor. Marketing is, if that’s even a metaphor in this case. Rather than opening up the book and saying “wow, this looks interesting, I hope it will be translated” (much less “wow, this looks interesting, I’ve got to learn this cultural studies stuff”), legal types and others are far more likely to say “I’ve got nooo idea what the heck she’s talking about — maybe she doesn’t either,” put it back on the shelf and move on to something else. Were it not for the fact that I trust the people who run this blog, that would have been exactly my reaction, too.

    The point of my original comment in this thread wasn’t merely to comment on the presence of jargon, since I’d done that previously. It was to point out the irony that the arcane and exclusive jargon was being used to argue for more transparency so that the public could understand the issues at stake (namely, in connection with information technologies). I wish you the best of luck with the book. But you certainly missed an opportunity to engage more people with issues that you say affect them.

  26. Julie Cohen says:

    Sorry, A.J., I’m not buying it. Your urgency to “educate” me on this point is curious. The root of scholarship is curiosity — including both curiosity about the new and unfamiliar and the ability to consider the familiar in a new light. Good scholars in any field realize that expertise in one area doesn’t automatically make them expert in another and that new literatures won’t automatically seem transparent. They put in the needed work to acquire fluency, and as they do, they develop the capacity to distinguish the insightful from the merely jargon-ridden. “I wouldn’t even try to read this because it’s soooo hard” isn’t a response I would expect to hear from any colleague I respect. Anyone who can assimilate complex works in economics or political philosophy can assimilate this. If they aren’t willing to try *because* it’s this, well, that’s a different problem entirely. Constructive thought on how to translate and simplify in future works, on the other hand, is most welcome.