Theorizing the law of privacy

The political economy of the panopticon

Contemporary digital life invokes the panopticon for good reason. But there are also limits to the usefulness of this metaphor to understand current society, as Prof Harcourt has noted. Bentham’s panopticon relied on the idea that ‘the more constantly the persons to be inspected are under the eyes of the persons who inspect them, the more perfectly will the purpose of the establishments have been attained.’ There is no doubt this is true when it comes to state surveillance. The problem with applying this metaphor is that the presence of the countless private actors who inspect us too often slips our mind; their inspection of us is not designed to be omnipresent and internalized as a form of discipline. Quite the opposite, it is often designed to be forgotten.

Importantly, however, the panopticon is not just a structure of surveillance, it functions as a penitentiary. It generates a space that sustains bare life, but creates social death. As Lisa Guenther describes, although prisoners “are physically alive, their lives no longer bear a social meaning.” In elaborating on this idea, she talks about the need for:

a whole network of interconnected obligations, both in the present and extending into the past and future, to create and sustain social personhood … it takes a whole network of exclusions, interruptions, and violations, not only against individuals but against the social and temporal horizons of their lives, to destroy that personhood.

This insight gives us a metaphorical understanding of the digital panopticon, not as a place for producing social death, but rather as a place where social personhood is entirely reconstructed. It seeks to destroy our control over that personhood. The digital panopticon creates the surveillance necessary to define social meaning. Our social personhood is created by governments that wish to keep us supplicant under a watchful eye, and companies that wish to sell us products by harnessing the power of our subconscious.

But relax! This is not a scary, privacy issue! Embracing these concepts will make the internet less ‘annoying and frustrating,’ and helpfully ‘get us through the next few generations,’ whatever that may mean. (So we are told by a man who sells tools to ‘aggregate customer data, gather insights and drive revenue.’)

Privacy then, is perhaps a poor linguistic substitute for a modern understanding of freedom. It alludes to an out-dated attempt to hide or seal off oneself hermetically from the world, in individualized units, most obviously epitomized by the family home. But really what we are seeking in this idea is the opportunity to construct the self in a way that is liberated. Critically, this involves not the absence of others, but the collective building of social connections that is unimpeded by those who seek to categorize us as consumers, submissives, deviants or dissidents. It is about carving tunnels between the cells of the digital panopticon – building a network of social life that exists beyond the line of sight of surveillance.

The jurisprudential understanding of privacy

Articulating in legal terms the freedom to determine social personhood is a daunting task. Arguably there are three elements. First, there is a right to seek refuge from surveillance. Second, steps taken to preserve privacy demand respect. Third, privacy is not solely an individual right, it can be, and often is, collective in nature.

Perhaps surprising in a discipline that is inherently glacial in pace, the architecture of this concept of privacy in jurisprudential terms exists already. The law understands the danger of ceaseless surveillance. Back in 1928, Justice Brandeis framed the aspiration for social meaning that is self-determined as a historical legacy of the founding fathers, who: “conferred, as against the Government, the right to be let alone – the most comprehensive of rights.” He was, unfortunately, in dissent, but his ideas nonetheless survived. Nearly thirty years later, Justice Goldberg quoted this passage in his finding that the ninth amendment conferred a right to privacy.

Historically, courts have also respected autonomous attempts to pursue privacy. Shortly thereafter, Justice Stewart, on behalf of the Court in Katz v. United States, defined privacy by reference to the steps taken by the person who was the subject of search and seizure:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

This is a conception of privacy that is structured around autonomy in its most simple form, that the decision to adopt privacy renders it a right.

Too often, Justice Stewart’s views are overlooked in favor of the oft-cited concurrence by Justice Harlan. His test involved a “reasonable expectation of privacy” – it looked to the actual, subjective expectation of privacy as well as considering whether society accepts it as reasonable. This has an inherently self-defeating logic to it – if we told we are being watched, the reasonableness of our expectation of privacy is necessarily eroded. Worse, it was subsequently taken up in Smith v. Maryland, a case in which a pen register was installed without a warrant. This was approved on the basis that the petitioner voluntarily disclosed the numbers he dialed to the telephone company, displacing the objective reasonableness of his expectation of privacy.

Justice Harlan’s test and the third part doctrine established in Smith ought to be considered a deviation, not the rule. Privacy is inherently subjective. Like sealing an envelope or closing a telephone booth door, the primary test should be the extent to which a person subjectively seeks to avoid the gaze of potential observers. In this context, Justice Stewart appreciated the importance of respecting the autonomy of the individual to determine their audience.

Relatedly, courts have also recognized that privacy includes a right to form a network outside of the public space. In NAACP v. Alabama, the court found that “compelled disclosure of affiliation” may act “as effective a restraint on freedom of association.” It noted that “the right of the members to pursue their lawful private interests privately and to associate freely with others” fell under the fourteenth amendment and was ultimately an “inseparable aspect of the ‘liberty’ assured by [it].” Cases such as Marcus v Search Warrant and Maryland v. Macon have warned about “the risk of prior restraint” created by the heavy hand of the state. People must be able to communicate freely. Without the freedom to build a collective, there is no control over social personhood.

The next step, critically, is to understand this social personhood, or digital citizenship, as not something that is only enforceable against those who inspect us openly. The law must find a way to remember the inspectors who are too easily forgotten. While such rights may not be constitutional in nature, the jurisprudence from this field of law has offered us a formula for imagining it.