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JonPenneyFirstPaper 16 - 14 May 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | -- By JonPenney - 08 Mar 2009
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| | | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just do very little about it, or do not understand how trading away informational privacy to save a few measly bucks might be a bad idea. | | | Directions Forward
But is tragedy inevitable? Not necessarily. First, privacy theorists need to stop relying so heavily on metaphor. A clever slogan may be helpful, but there may be better as yet tested strategies to promote privacy among the public. One possibility is to follow Daniel Solove’s lead, who has recently focused on formulating taxonomies of privacy threats; that is, a clear, and easily communicated charting of all types of privacy threats for consumers or citizens in a given sector. Such an approach certainly offers a great wealth of information for public awareness and also, to be blunt, treats people less childishly. Dumbing-down the complexities of privacy in a word or slogan is absurd. Second, if privacy metaphors must remain then advocates need to out-think the potentates of consumerism; appropriation of metaphor is not inevitable if the metaphor itself cannot credibly used for commercial purpose. This requires innovative and artful thought; but, for example, surely it would be difficult to appropriate the cockroach-like and privacy starved Gregor Samsa, of Kafka’s anti-consumerist classic Metamorphosis, to promote consumer goods? | |
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JonPenneyFirstPaper 15 - 01 May 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars. | |
<
< | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, how ironic that Apple chose 1984 to appropriate the metaphor for commercial use. Apple, whose hasn't been great on privacy lately, used (or abused) a privacy metaphor to make computer ownership an ideal of personal empowerment. | >
> | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, how ironic that Apple chose 1984 to appropriate the metaphor for commercial use. Apple, who hasn't been great on privacy lately, used (or abused) a privacy metaphor to make computer ownership an ideal of personal empowerment. | | | Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their conventional and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted. |
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JonPenneyFirstPaper 14 - 28 Apr 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | | |
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< | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just happen to do very little about it, or, at least, do not understand how trading away informational privacy to save a few measly bucks might be a bad idea. | >
> | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just do very little about it, or do not understand how trading away informational privacy to save a few measly bucks might be a bad idea. | | | Privacy Law's Metaphors
How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated. | | | The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars. | |
<
< | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Sure, the house would be a one's “castle”; but by the 1950’s that castle would be a consumer paradise, lined with bobbles and trinkets not moats or tapestries. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, there must have been some irony intended in Apple Inc.’s choice of the year 1984 to appropriate the metaphor for its own commercial use. Apple, whose own track record on privacy lately leaves much to be desired, used (or abused) a privacy metaphor to make personal computer ownership an ideal of personal empowerment. That, my friends, is capitalism and consumerism at its efficient best (or worst). | >
> | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, how ironic that Apple chose 1984 to appropriate the metaphor for commercial use. Apple, whose hasn't been great on privacy lately, used (or abused) a privacy metaphor to make computer ownership an ideal of personal empowerment. | | | | |
<
< | Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their popular and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted. | >
> | Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their conventional and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted.
And this is not just abstract fluff. There are case studies in other areas showing how metaphors can mess with clear and systematic thinking. From empirical studies concluding that "conventional" metaphors pose problems for scientific theory, to policing failures, to the fabrication or "social construction" of "problems" for law enforcement to address. Privacy metaphors, no doubt, may be leading us down similarly false paths. | | | I call this the Tragedy of the Communicative Commons for privacy metaphors. Such metaphors have benefits, but their passage into popular cultural re-affirms the consumerism that threatens informational privacy itself, and, additionally, can negatively impact action and coordination among citizens. |
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JonPenneyFirstPaper 13 - 15 Apr 2009 - Main.EbenMoglen
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | In any case, thanks for the links and note-- I've actually been meaning to fire a response to your great piece on social movements and copyright, so keep an eye out!
-- JonPenney - 26 Mar 2009 | |
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- Seems to me the conversation here got at most of the points very well. I think once again that it's a good showing on all sides. But perhaps one last iteration of the same basic question might motivate some further attention in revision: can you give a concrete example of the obstructive intellectual laziness caused by metaphors? I'm not adverse to the intention you have here: The Invisible Barbecue (to take only one of my writings about which it would be true) started from a similar rumination on the harm done by metaphors. But I think that it's helpful actually to show how someone or some people have demonstrably suffered from the problems you assert metaphor creates.
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JonPenneyFirstPaper 12 - 26 Mar 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | Let me be clear that I do not think that my objections necessarily defeat your thesis, I am just trying to point out some holes that I perceive in your argument. Thanks for an interesting essay.
-- JustinColannino - 20 Mar 2009
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Justin - I wish I had thought of the show "Big Brother" for my original post! I agree that the Big Brother image still seems compelling notwithstanding the success and popularization of the show by the same name. But I still maintain that this very popularization weakens the cultural currency of the metaphor as useful tool for privacy. The ultimate message of this particular appropriation of the metaphor is that having Big Brother watch you -- or millions of viewers for that matter -- is not necessarily a bad thing. It might even be fun, even naughty, and, at worse, just boring and banal (Big Brother is all three, with an emphasis on banality). That latter sentiment seems pretty consistent with broader attitudes about informational privacy: so you lose a little privacy by giving away a bit of banal data. And maybe someone might see that banal data. Who cares?
Of course, cultural commentary is notoriously hard to prove -- and hard for you to disprove -- but I am not convinced that even if the image of Big Brother remains disturbing at a glance, reliance on the metaphor helps, rather than hurts, the cause. I think its more than just dilution of message; the metaphor itself covertly and actively promotes anti-privacy attitudes.
On the second point, I actually hope you and Andrei are right; that privacy can ultimately work with consumerism. Certainly, as you both point out, consumerism might promote privacy if people see privacy-promoting goods as something worthwhile pursuing and consuming. But I remain skeptical, at least until we fully face the difficulty of reconciliation. There seems to be a desire for privacy out there-- so why hasn't some smart capitalist figured out how to make money off of it? The answer might be that it is just so much easier making money by pursuing practices that erode privacy-- consumer data mining and surveillance to construct efficient marketing models and establish brand loyalty through feedback of consumer preferences. Sure, a few merchants might make some money off cameras or anonymizing software, but I cannot see this turning the tides in privacy's favor.
In any case, thanks for the links and note-- I've actually been meaning to fire a response to your great piece on social movements and copyright, so keep an eye out!
-- JonPenney - 26 Mar 2009 | | |
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JonPenneyFirstPaper 11 - 20 Mar 2009 - Main.JustinColannino
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | As for the "Fourth Amendment Goes to Canada" paper, I decided that I needed to tighten up the writing and the analysis a bit more, including offering a few punchier solutions. Have no fear, however, I think it may make a version 2.02 re-appearance in the form of my second paper!
-- JonPenney - 18 Mar 2009 | |
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> | Jon - I want to push you a bit on the question raised by Andrei: how is the appropriation of privacy metaphors by corporations detrimental to privacy? You responded with two points: 1) The transformation of expression to the metaphor dilutes the metaphor's original message and 2) The metaphor is used to strengthen consumerism, which further weakens privacy.
On point one, I think that the transformation of the expression can make all the difference, and may not have the dilution effect you claim. For example, is this image any weaker after you've seen this video, or been to this website? I personally do not think so.
My objection to your second point is that I think that Andrei is correct concerning the fact that consumerism and privacy are not at odds, and that strengthening one does not necessarily harm the other. I think the appropriation of metaphors can be used for both profit and privacy. For example, if this company used the big brother metaphor to sell it's products, wouldn't that help both consumerism and privacy? Also, to take the castle example, how does wanting a modern castle with flashy items make us less wary of privacy violations? Does wanting cameras for your home so that you know if someone is in the woods watching you defeat your privacy?
Let me be clear that I do not think that my objections necessarily defeat your thesis, I am just trying to point out some holes that I perceive in your argument. Thanks for an interesting essay.
-- JustinColannino - 20 Mar 2009
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JonPenneyFirstPaper 10 - 18 Mar 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | On another note, I actually really liked the first paper you posted and am sorry to see it go.
-- KateVershov - 18 Mar 2009 | |
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Kate - thanks also for the note. I, too, have been smitten in the past by privacy metaphors, but likewise have wondered if, why, and how they might have failed us. This post is part of the product of that thought process.
As for the "Fourth Amendment Goes to Canada" paper, I decided that I needed to tighten up the writing and the analysis a bit more, including offering a few punchier solutions. Have no fear, however, I think it may make a version 2.02 re-appearance in the form of my second paper!
-- JonPenney - 18 Mar 2009 | | |
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JonPenneyFirstPaper 9 - 18 Mar 2009 - Main.KateVershov
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | Thanks for the comment, Andrei. Arguably, consumerism is fundamentally at odds with privacy, since, at bottom, it aligns happiness or satisfaction with consumption. And consumption is hard to square with privacy. Privacy, by its very nature, is about preservation; about guarding intimate spaces from intervening forces, be they authoritarian or otherwise. One of those intervening forces is consumerism's need to expand, grow, and consume. But for the sake of argument, let's say you are right that consumerism and privacy are not irreconcilable. That reconciliation will nevertheless be difficult for the same reasons. As you note, commercial interests are actively pushing an anti-privacy consumerism and let's be honest: they have a head start and lot of momentum. A few centuries worth, actually. The problem with privacy metaphors being appropriated by these forces is: first, not only do their superficial cleverness or salience distract from the task at hand-- addressing why people choose convenience over privacy -- but in the process they silently promote and strengthen anti-privacy consumerism. Second, through appropriation privacy metaphors lose capacity to effectively oppose that momentum with, as you say, a visceral enough message. Is the Big Brother metaphor about privacy? Or is it about Apple computers and personal empowerment by consumer purchasing? The fact both are probably right shows that the metaphor is likely no longer an effective tool for privacy promotion.
-- JonPenney - 12 Mar 2009 | |
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I think discussing privacy metaphors is interesting and worthwhile, but I hesitate to say that privacy is where it is because our metaphors have failed us. I think at the end of the day how much you care about privacy is probably very closely related to how much you trust the government and without a good sense of this country's history, no metaphor is going to help.
On another note, I actually really liked the first paper you posted and am sorry to see it go.
-- KateVershov - 18 Mar 2009 | | |
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JonPenneyFirstPaper 8 - 12 Mar 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | I entirely agree that metaphors can discourage clear thinking about privacy issues. The real work to be done, it seems to me, is in figuring out how to communicate the dangers to the public viscerally without dumbing down the issues. This is where I think Solove's approach of taxonomies fails— It's a great tool to facilitate more clear thinking and academic inquiry, but the message is not visceral enough to get through to the apathetic.
-- AndreiVoinigescu - 11 Mar 2009 | |
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Thanks for the comment, Andrei. Arguably, consumerism is fundamentally at odds with privacy, since, at bottom, it aligns happiness or satisfaction with consumption. And consumption is hard to square with privacy. Privacy, by its very nature, is about preservation; about guarding intimate spaces from intervening forces, be they authoritarian or otherwise. One of those intervening forces is consumerism's need to expand, grow, and consume. But for the sake of argument, let's say you are right that consumerism and privacy are not irreconcilable. That reconciliation will nevertheless be difficult for the same reasons. As you note, commercial interests are actively pushing an anti-privacy consumerism and let's be honest: they have a head start and lot of momentum. A few centuries worth, actually. The problem with privacy metaphors being appropriated by these forces is: first, not only do their superficial cleverness or salience distract from the task at hand-- addressing why people choose convenience over privacy -- but in the process they silently promote and strengthen anti-privacy consumerism. Second, through appropriation privacy metaphors lose capacity to effectively oppose that momentum with, as you say, a visceral enough message. Is the Big Brother metaphor about privacy? Or is it about Apple computers and personal empowerment by consumer purchasing? The fact both are probably right shows that the metaphor is likely no longer an effective tool for privacy promotion.
-- JonPenney - 12 Mar 2009 | | |
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JonPenneyFirstPaper 7 - 11 Mar 2009 - Main.AndreiVoinigescu
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Why is the appropriation of the metaphors by the machinery of capitalism so dangerous? Does the commercialization of the metaphors weaken their ability to communicate privacy threats? While commercial interests right now undeniably stand to benefit from the erosion of privacy (and are actively working towards that end), I don't see anything in consumerism itself that puts it fundamentally at odds with privacy. If people's actions actually corresponded to their stated views about privacy, would the market not reward privacy-preserving companies?
I entirely agree that metaphors can discourage clear thinking about privacy issues. The real work to be done, it seems to me, is in figuring out how to communicate the dangers to the public viscerally without dumbing down the issues. This is where I think Solove's approach of taxonomies fails— It's a great tool to facilitate more clear thinking and academic inquiry, but the message is not visceral enough to get through to the apathetic.
-- AndreiVoinigescu - 11 Mar 2009 | | |
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JonPenneyFirstPaper 6 - 11 Mar 2009 - Main.JonPenney
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just happen to do very little about it, or, at least, do not understand how trading away informational privacy to save a few measly bucks might be a bad idea.
Privacy Law's Metaphors | |
<
< | How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated. | >
> | How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated. | | | The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars. | | | WORDCOUNT: 999
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JonPenneyFirstPaper 5 - 10 Mar 2009 - Main.JonPenney
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< | The Fourth Amendment’s Unwelcome Journey to Canada | >
> | The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | | | | |
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< | -- By JonPenney - 08 Mar 2009 -- | >
> | -- By JonPenney - 08 Mar 2009 | | | | |
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< | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state (through the subpoena power) and corporate interests (by contract). These all concern things far from the “persons, houses, papers, and effects” of the Fourth Amendment. | >
> | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just happen to do very little about it, or, at least, do not understand how trading away informational privacy to save a few measly bucks might be a bad idea. | | | | |
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< | Solutions are are not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might show otherwise. | >
> | Privacy Law's Metaphors
How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated. | | | | |
<
< | Section 8 of the Charter
When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8 of the Charter, which would be the central provision for Canadian privacy protections. The drafters studied the Fourth Amendment and its interpretation in American courts and concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. Thus, drafters included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new kinds of threats to privacy involving more than simply “persons, houses, papers, and effects”. Section 8's text would not wed its purpose to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent. | >
> | The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars. | | | | |
<
< | The Fourth Amendment Goes to Canada
Or so the drafters thought. A year later the Supreme Court of Canada would hand down Hunter v. Southam, which remains the leading case on the interpretation of Section of 8’s privacy protection. In Hunter, the Court would, despite the Fourth Amendment’s different text, history, structure and intent, adopt the U.S. Supreme Court’s Fourth Amendment test in Katz as the standard for privacy protections under section 8 of the Charter. Despite acknowledging the differences between the Fourth Amendment and Section 8 meant “American decisions can be transplanted to the Canadian context with the greatest caution” he nevertheless adopted the Katz “reasonable expectation of privacy” test wholesale. | >
> | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Sure, the house would be a one's “castle”; but by the 1950’s that castle would be a consumer paradise, lined with bobbles and trinkets not moats or tapestries. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, there must have been some irony intended in Apple Inc.’s choice of the year 1984 to appropriate the metaphor for its own commercial use. Apple, whose own track record on privacy lately leaves much to be desired, used (or abused) a privacy metaphor to make personal computer ownership an ideal of personal empowerment. That, my friends, is capitalism and consumerism at its efficient best (or worst). | | | | |
<
< | The deep problems this blending of constitutional cultures has caused for Canadian privacy, particularly the informational kind, has emerged in the ensuring decades. The decision in R. v. Plant offers one example. Citing Fourth Amendment decisions Katz and United States v. Miller, the Court held there was no Section 8 privacy interests in computerized records if they did not include “confidential” personal information. The fact that electricity records may reveal details about private lifestyles in the “castle” of the home made no difference. | >
> | Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their popular and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted. | | | | |
<
< | The danger in Plant and Hunter's reliance on the Fourth Amendment principles culminated in the 2004 decision of R. v. Tessling, one of Canada's first decisions on surveillance and information privacy. There, the Court cited Plant’s modest view of section 8’s informational privacy protections to find that images of heat emanating from a house taken by police with a FLIR (Forward Looking Infrared) camera but without warrant, was not an unconstitutional search. Again, since the thermal imaging did not contain “core” confidential personal information, section 8 was not sufficiently triggered. Now compare Kyllo. In Kyllo, the U.S. Supreme Court found images taken with a similar FLIR camera constituted an unconstitutional warrantless search in large part because the imaging was of the home— one of the sacred places specifically enumerated in the Fourth Amendment’s text. | >
> | I call this the Tragedy of the Communicative Commons for privacy metaphors. Such metaphors have benefits, but their passage into popular cultural re-affirms the consumerism that threatens informational privacy itself, and, additionally, can negatively impact action and coordination among citizens. | | | | |
<
< | The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test, which is weakened even further since there are no places – like the home – which have constitutional priority. “Place” in the Canadian Fourth-Amendment-in-Section-8 analysis is simply one factor among many.
Canadian Lessons for an American Problem
Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual difference from Section 8-- has led to narrower protections than under the Fourth Amendment itself. Judicial error or resistance to constitutional text and history can lead here. Second, this illustrates the risks of courts relying on foreign jurisprudence. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. It's high time to get it started. | >
> | Directions Forward
But is tragedy inevitable? Not necessarily. First, privacy theorists need to stop relying so heavily on metaphor. A clever slogan may be helpful, but there may be better as yet tested strategies to promote privacy among the public. One possibility is to follow Daniel Solove’s lead, who has recently focused on formulating taxonomies of privacy threats; that is, a clear, and easily communicated charting of all types of privacy threats for consumers or citizens in a given sector. Such an approach certainly offers a great wealth of information for public awareness and also, to be blunt, treats people less childishly. Dumbing-down the complexities of privacy in a word or slogan is absurd. Second, if privacy metaphors must remain then advocates need to out-think the potentates of consumerism; appropriation of metaphor is not inevitable if the metaphor itself cannot credibly used for commercial purpose. This requires innovative and artful thought; but, for example, surely it would be difficult to appropriate the cockroach-like and privacy starved Gregor Samsa, of Kafka’s anti-consumerist classic Metamorphosis, to promote consumer goods? | | | WORDCOUNT: 999
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< | The Fourth Amendment’s Bogus Journey to Canada
Or: Lessons from Misinformed Constitutional Borrowing | >
> | The Fourth Amendment’s Unwelcome Journey to Canada | | | -- By JonPenney - 08 Mar 2009 --
| |
<
< | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state (through the subpoena power) and corporate interests (by contract); these all concern things far from the “persons, houses, papers, and effects” of the Fourth Amendment. | >
> | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state (through the subpoena power) and corporate interests (by contract). These all concern things far from the “persons, houses, papers, and effects” of the Fourth Amendment. | | | | |
<
< | Solutions are are not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might prove otherwise. | >
> | Solutions are are not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might show otherwise. | | | Section 8 of the Charter
When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8 of the Charter, which would be the central provision for Canadian privacy protections. The drafters studied the Fourth Amendment and its interpretation in American courts and concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. Thus, drafters included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new kinds of threats to privacy involving more than simply “persons, houses, papers, and effects”. Section 8's text would not wed its purpose to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent. | | | The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test, which is weakened even further since there are no places – like the home – which have constitutional priority. “Place” in the Canadian Fourth-Amendment-in-Section-8 analysis is simply one factor among many. | |
<
< | American Lessons from a Canadian Problem
Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual differences from Section 8-- has led to weaker protections than under the U.S. Constitution itself. Judicial error, or courts resistant to, or ignorant of, constitutional text and history, can lead here. Second, this experience illustrates the risks of courts relying on foreign jurisprudence. While similar constitutional systems mean comparative law is inevitable, a single act of misinformed constitutional borrowing might eclipse any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech also apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. So problems remain. | >
> | Canadian Lessons for an American Problem
Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual difference from Section 8-- has led to narrower protections than under the Fourth Amendment itself. Judicial error or resistance to constitutional text and history can lead here. Second, this illustrates the risks of courts relying on foreign jurisprudence. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. It's high time to get it started. | | | | |
<
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The Fourth Amendment’s Bogus Journey to Canada | | | | |
<
< | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state and corporate interests by subpoena power or contract; all of which are located far from the “persons, houses, papers, and effects” of the Fourth Amendment. | >
> | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state (through the subpoena power) and corporate interests (by contract); these all concern things far from the “persons, houses, papers, and effects” of the Fourth Amendment. | | | | |
<
< | Solutions are welcome, but not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might prove otherwise. | >
> | Solutions are are not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might prove otherwise. | | | Section 8 of the Charter
When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8 of the Charter, which would be the central provision for Canadian privacy protections. The drafters studied the Fourth Amendment and its interpretation in American courts and concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. Thus, drafters included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new kinds of threats to privacy involving more than simply “persons, houses, papers, and effects”. Section 8's text would not wed its purpose to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent. | | | The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test, which is weakened even further since there are no places – like the home – which have constitutional priority. “Place” in the Canadian Fourth-Amendment-in-Section-8 analysis is simply one factor among many.
American Lessons from a Canadian Problem | |
<
< | Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual differences from Section 8-- has led to weaker protections than under the U.S. Constitution itself. Judicial error or ignorance of text and history can lead here. Second, this experience illustrates the risks of courts relying on foreign jurisprudence. While common legal problems mean comparative law is inevitable, a single act of misinformed constitutional borrowing might eclipse any remaining traces of the Fourth Amendment's protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech, which is also apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada, it is hard to say if the trilogy of Hunter, Plant and Tessling would be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. So problems remain. | >
> | Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual differences from Section 8-- has led to weaker protections than under the U.S. Constitution itself. Judicial error, or courts resistant to, or ignorant of, constitutional text and history, can lead here. Second, this experience illustrates the risks of courts relying on foreign jurisprudence. While similar constitutional systems mean comparative law is inevitable, a single act of misinformed constitutional borrowing might eclipse any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech also apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. So problems remain. | | | | |
<
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< | The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc. | >
> |
The Fourth Amendment’s Bogus Journey to Canada
Or: Lessons from Misinformed Constitutional Borrowing | | | | |
<
< | -- By JonPenney - 08 Mar 2009 | >
> | -- By JonPenney - 08 Mar 2009 -- | | | | |
<
< | Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and intimacy the Founders were so concerned about — but consumer information compiled about and from citizens by third parties and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just happen to do very little about it, or, at least, do not understand how trading away informational privacy to save a few measly bucks might be a bad idea. | >
> | | | | | |
<
< | Privacy Law's Metaphors
How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated. | >
> | Privacy is not doing so well in America these days and a key reason is the Constitution. Today's greatest privacy threats do not concern places; but information compiled about consumers and citizens by third parties and stored in databases easily accessible by the state and corporate interests by subpoena power or contract; all of which are located far from the “persons, houses, papers, and effects” of the Fourth Amendment. | | | | |
<
< | The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars. | >
> | Solutions are welcome, but not obvious. Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, one common answer is to amend the Constitution: change the text so that it no longer focuses on places, but on the kinds of threats to privacy pervasive today. This may not catch all future privacy threats but it would nevertheless result in a Constitution far better equipped to deal with modern privacy challenges. Or at least that is the theory. The Canadian experience with constitutional privacy rights might prove otherwise. | | | | |
<
< | First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Sure, the house would be a man’s “castle”; but by the 1950’s that castle would be a consumer paradise, lined with bobbles and trinkets not moats or tapestries. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, there must have been some irony intended in Apple Inc.’s choice of the year 1984 to appropriate the metaphor for its own commercial use. Apple, whose own track record on privacy lately leaves much to be desired, used (or abused) a privacy metaphor to make personal computer ownership an ideal of personal empowerment. That, my friends, is capitalism and consumerism at its efficient best (or worst). | >
> | Section 8 of the Charter
When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8 of the Charter, which would be the central provision for Canadian privacy protections. The drafters studied the Fourth Amendment and its interpretation in American courts and concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. Thus, drafters included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new kinds of threats to privacy involving more than simply “persons, houses, papers, and effects”. Section 8's text would not wed its purpose to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent. | | | | |
<
< | Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their popular and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted. | >
> | The Fourth Amendment Goes to Canada
Or so the drafters thought. A year later the Supreme Court of Canada would hand down Hunter v. Southam, which remains the leading case on the interpretation of Section of 8’s privacy protection. In Hunter, the Court would, despite the Fourth Amendment’s different text, history, structure and intent, adopt the U.S. Supreme Court’s Fourth Amendment test in Katz as the standard for privacy protections under section 8 of the Charter. Despite acknowledging the differences between the Fourth Amendment and Section 8 meant “American decisions can be transplanted to the Canadian context with the greatest caution” he nevertheless adopted the Katz “reasonable expectation of privacy” test wholesale. | | | | |
<
< | I call this the Tragedy of the Communicative Commons. As noted, privacy metaphors have benefits, but their passage into common and popular cultural re-affirms the consumerism that threatens informational privacy itself, and, at times, negatively impacts action and coordination among citizens. | >
> | The deep problems this blending of constitutional cultures has caused for Canadian privacy, particularly the informational kind, has emerged in the ensuring decades. The decision in R. v. Plant offers one example. Citing Fourth Amendment decisions Katz and United States v. Miller, the Court held there was no Section 8 privacy interests in computerized records if they did not include “confidential” personal information. The fact that electricity records may reveal details about private lifestyles in the “castle” of the home made no difference. | | | | |
<
< | Directions Forward
But is tragedy inevitable? Not necessarily. First, privacy theorists need to stop relying so heavily on metaphor. A clever slogan may be helpful, but there may be better as yet tested strategies to promote privacy among the public. One possibility is to follow Daniel Solove’s lead, who has recently focused on formulating taxonomies of privacy threats; that is, a clear, and easily communicated charting of all types of privacy threats for consumers or citizens in a given sector. Such an approach certainly offers a great wealth of information for public awareness and also, to be blunt, treats people less childishly. Dumbing-down the complexities of privacy in a word or slogan is absurd. Second, if privacy metaphors must remain then advocates need to out-think the potentates of consumerism; appropriation of metaphor is not inevitable if the metaphor itself cannot credibly used for commercial purpose. This requires innovative and artful thought; but, for example, surely it would be difficult to appropriate the cockroach-like and privacy starved Gregor Samsa, of Franz Kafka’s Metamorphosis, to promote consumer goods? | >
> | The danger in Plant and Hunter's reliance on the Fourth Amendment principles culminated in the 2004 decision of R. v. Tessling, one of Canada's first decisions on surveillance and information privacy. There, the Court cited Plant’s modest view of section 8’s informational privacy protections to find that images of heat emanating from a house taken by police with a FLIR (Forward Looking Infrared) camera but without warrant, was not an unconstitutional search. Again, since the thermal imaging did not contain “core” confidential personal information, section 8 was not sufficiently triggered. Now compare Kyllo. In Kyllo, the U.S. Supreme Court found images taken with a similar FLIR camera constituted an unconstitutional warrantless search in large part because the imaging was of the home— one of the sacred places specifically enumerated in the Fourth Amendment’s text. | | | | |
<
< | WORDCOUNT: 998 | >
> | The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test, which is weakened even further since there are no places – like the home – which have constitutional priority. “Place” in the Canadian Fourth-Amendment-in-Section-8 analysis is simply one factor among many.
American Lessons from a Canadian Problem
Some lessons can be divined from this constitutional hash up. First, constitutional amendment may not be enough. Many critics believe the only way to rescue the Fourth Amendment is to amend it, replacing its textual and structural focus on places with broader language to secure greater privacy. However, if the Canadian experience is any indication, newly minted text, history, structure and purpose is not always enough to broader protections. Canadian courts' reliance on Fourth Amendment principle-- despite its clear textual differences from Section 8-- has led to weaker protections than under the U.S. Constitution itself. Judicial error or ignorance of text and history can lead here. Second, this experience illustrates the risks of courts relying on foreign jurisprudence. While common legal problems mean comparative law is inevitable, a single act of misinformed constitutional borrowing might eclipse any remaining traces of the Fourth Amendment's protections (think of Tessling informing future U.S. privacy law decisions). Finally, the Canadian experience illustrates the importance of fostering a culture of privacy outside of courts. Frederick Schauer has written of America's "First Amendment Culture" which is the country's deep cultural commitment to free speech, which is also apparent in broad judicial interpretations of the First Amendment's speech protections. If a similar constitutional culture of privacy existed in Canada, it is hard to say if the trilogy of Hunter, Plant and Tessling would be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. So problems remain.
WORDCOUNT: 993 | | |
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The Tragedy of the Communicative Commons: Privacy, Consumerism, and Metaphor Inc.
-- By JonPenney - 08 Mar 2009
Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and intimacy the Founders were so concerned about — but consumer information compiled about and from citizens by third parties and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just happen to do very little about it, or, at least, do not understand how trading away informational privacy to save a few measly bucks might be a bad idea.
Privacy Law's Metaphors
How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated.
The Tragedy of the Communicative Commons
A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars.
First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Sure, the house would be a man’s “castle”; but by the 1950’s that castle would be a consumer paradise, lined with bobbles and trinkets not moats or tapestries. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, there must have been some irony intended in Apple Inc.’s choice of the year 1984 to appropriate the metaphor for its own commercial use. Apple, whose own track record on privacy lately leaves much to be desired, used (or abused) a privacy metaphor to make personal computer ownership an ideal of personal empowerment. That, my friends, is capitalism and consumerism at its efficient best (or worst).
Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their popular and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted.
I call this the Tragedy of the Communicative Commons. As noted, privacy metaphors have benefits, but their passage into common and popular cultural re-affirms the consumerism that threatens informational privacy itself, and, at times, negatively impacts action and coordination among citizens.
Directions Forward
But is tragedy inevitable? Not necessarily. First, privacy theorists need to stop relying so heavily on metaphor. A clever slogan may be helpful, but there may be better as yet tested strategies to promote privacy among the public. One possibility is to follow Daniel Solove’s lead, who has recently focused on formulating taxonomies of privacy threats; that is, a clear, and easily communicated charting of all types of privacy threats for consumers or citizens in a given sector. Such an approach certainly offers a great wealth of information for public awareness and also, to be blunt, treats people less childishly. Dumbing-down the complexities of privacy in a word or slogan is absurd. Second, if privacy metaphors must remain then advocates need to out-think the potentates of consumerism; appropriation of metaphor is not inevitable if the metaphor itself cannot credibly used for commercial purpose. This requires innovative and artful thought; but, for example, surely it would be difficult to appropriate the cockroach-like and privacy starved Gregor Samsa, of Franz Kafka’s Metamorphosis, to promote consumer goods?
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