Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst – antiprogressive, overly costly, and inimical to the welfare of the body politic. Privacy advocates resist this framing but seem unable either to displace it or to articulate a comparably urgent description of privacy’s importance. No single meme or formulation of privacy’s purpose has emerged around which privacy advocacy might coalesce. Pleas to “balance” the harms of privacy invasion against the asserted gains lack visceral force.
The consequences of privacy’s bad reputation are predictable: when privacy and its purportedly outdated values must be balanced against the cutting-edge imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser. The list of privacy’s counterweights is long and growing. The recent additions of social media, mobile platforms, cloud computing, data mining, and predictive analytics now threaten to tip the scales entirely, placing privacy in permanent opposition to the progress of knowledge.
Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. So characterized, privacy is reactive and ultimately inessential. Its absence may at times chill the exercise of constitutionally protected liberties, but because the liberal self inherently possesses the capacity for autonomous choice and self-determination, loss of privacy does not vitiate that capacity. As this Article explains, however, such thinking is mistaken.
In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. As Part II discusses, the self who is the real subject of privacy law and policy is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, privacy performs a function that has nothing to do with stasis. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which the capacity for self-determination develops.
So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk, which Parts III and IV describe. Privacy incursions can be episodic or systematic, but systematic deprivations of privacy also facilitate episodic privacy incursions. In this Article, therefore, I focus on the interplay between privacy and systems of surveillance. Part III argues that freedom from surveillance, whether public or private, is foundational to the practice of informed and reflective citizenship. Privacy therefore is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance also is foundational to the capacity for innovation; therefore, as Part IV explains, the perception of privacy as anti-innovation is a non sequitur. Innovation occurs in commercial and social contexts and is infused with particular commercial and social values. A commercial culture that sees privacy as threatening its own valued practices of knowledge production will register privacy regulation as a threat. But a society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value.
A structural understanding of privacy’s importance demands a structural approach to privacy regulation. Effective privacy protection requires comprehensive attention to the systemic attributes of both public and private surveillance practices, and to the ways in which public and private surveillance practices supplement and reinforce one another. Part V briefly outlines some strategies for achieving these goals. Effective privacy regulation must render both public and private systems of surveillance meaningfully transparent and accountable. It also must preserve breathing room for practices of boundary management by situated subjects. Dynamic, emergent subjectivity – the sort of subjectivity upon which liberal democracy and innovation both rely – thrives in the interstitial spaces within information-processing frameworks; privacy regulation must focus on maintaining those spaces.