Talking Law

I have to admit I’ve enjoyed the to and fro between Julie and Anita, primarily because I’m usually the one trying to convince post-modern social scientists that it’s worthwhile having a discussion with legal scholars 😉 It’s kind of fun watching the “other shoe” drop…
Julie, I think the book is a fabulous contribution. What I liked most about it is how you mobilize the insights of social science to reinvigorate the legal debate. To my mind, empirical explorations of the lived experiences of real social actors are an essential corrective to some pretty bad policy. And, for a reason I can’t quite fathom, American legal scholars are coming a bit late to the party. I was surprised for e.g., last year when at the Privacy Law Scholars Conference, the American legal community was surprised to hear that children and young people not only value their online privacy but adopt a number strategies that make good use of the interstitial spaces you identify to construct their own privacy and/or resist surveillance. That’s old news that was first established at least seven years ago by Canadian and European researchers working from a social constructionist perspective. Your book goes a long way to putting the American legal community into dialogue with social science in a way that can benefit both.
I have some strong opinions about the theoretical issues at play between liberalism and post-modernism, but I’d like to put them aside for a moment and respond to your request for feedback on the policy prescriptions in the book. As you very rightly note, the policy debate around privacy has been superficial to date, and we do need new approaches that can protect the liminality that’s necessary to experience authentic subjectivity in online spaces. I would suggest that the paucity of policy choices isn’t accidental, and that data protection is at least partly to blame for the current lack of effective policy options. After all, data protection was first enacted in Hesse, Germany to settle a fight over which level of government would control electronic databases; the next data protection Act was passed by Sweden to protect its national sovereignty in the event that its national citizen registry – the largest of its kind at the time – fell into foreign hands.
However, when the Council of Europe first addressed the issue in 1973, it used human rights language that linked privacy to human dignity and the need to protect people from categorical discrimination. Interestingly, when the second CoE resolution came out a year later, that language receded and was replaced by the instrumental approach to fair information practices that now dominates privacy legislation around the world. I would suggest that the move from the language of human dignity – what you might call human flourishing – to the language of control over data alienated from the human subject was a strategic one; European bureaucrats and American business people lobbied hard for language that would not restrict government surveillance or commercial innovation.
By developing language to talk about the importance of privacy to subjectivity, legal scholars can contribute to a deeper understanding of the role of the law in promoting human flourishing by developing the links between privacy and notions of personhood and dignity. European courts have been able to push back against surveillance by using human rights language – think of the German census case and the development of a right to informational self-control and the (non-European) example of the use of constitutional protections for the inviolability of the person in Iceland as a corrective for the over-reaching nature of the Icelandic genetic database.
Of course, this would push American human rights discourses beyond the comfort zone of civil rights and require a critical analysis of the commercial imperatives that shape the online world. Welcome to post-liberalism 😉

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2 Responses

  1. Julie Cohen says:

    Valerie, thanks for these comments. Sometimes U.S. privacy advocates point to the European approach as the solution, and it’s important to be reminded that it contains its own internal tensions. Even moving beyond the U.S. civil rights paradigm to a human right paradigm doesn’t necessarily lend that paradigm deep content; it’s exactly my hope that directly confronting the privacy-subjectivity problem could deepen the foundations. And it’s become quite clear over the last decade or so that looking to Canada would help!

  2. Valerie Steeves says:

    Canada’s a bit of a hybrid, using data protection language (which is quite limited) and constitutional language that mirrors the American 4th amendment (which is also limited). Unfortunately, the right to privacy didn’t make the final cut of the Canadian Charter of Rights and Freedoms when we repatriated our constitution in 1982. European countries with constitutional protections for privacy and notions of personhood have richer legal language because they draw on European human rights conventions that stand apart from data protection. It’s the discursive richness of the human rights commitment to dignity that provides an opportunity for legal scholars to make the link between dignity, personhood and privacy. But it’s just an opportunity – and one that can be quickly shut down by instrumental arguments based on data protection. On that note, it’ll be fun to watch the new EU battle with Google and see who wins this one…