Marketing The Privacy Right

-- By UsmanArain - 02 May 2010

Part I: Thinking About Aims and Goals

“A liberal is a conservative who’s been arrested. A conservative is a liberal who’s been mugged.” - Wendy Kaminer, It's All the Rage: Crime and Culture

Whatever the merit of the above quotation as a theory of crime victim psychology, I find it speaks to an intuition that has been lurking in my mind since day 1 of this course about the way the pro-privacy movement (a term that I use in this paper to describe the movement to expand recognition of privacy rights) to the layman. The purpose of this course, as I understand it, is to warn us about the terrifying long-term consequences of the ongoing erosion of privacy rights in our society, and to galvanize us into activism in support of the movement. This formulation takes the concept of “us” for granted. We who enrolled in this course have demonstrated a willingness to at least entertain our professor’s warnings and calls to action. But of course, to the vast majority of our peers, both at CLS and in society generally, the concept of privacy is not nearly the talisman that it is to us. Professor Moglen’s reaction seems dismissive. He appears to believe that the movement will be sustained by an enlightened vanguard which welcomes new membership but can survive without it, and won’t compromise its values to attract it. This is fair enough, I think, insofar as the movement’s goals are to prescribe policy changes for large institutions – the government, big business – which are instinctively unpalatable to the uninformed and complacent layman (with respect to national security, crime control, social networking, etc.), regardless of the ultimate net benefit.

However, in the big picture, this strikes me as a short-sighted approach to effecting long-term systematic change. In the long-term, the aforementioned large institutions will continue to respond to the preferences and priorities of the mainstream, not what it perceives to be the esoteric concerns of an academic fringe. Thus, while it might not be expedient for the pro-privacy movement to engage in substantive policy debate with the mainstream, it might be profitable to reflect on the ways in which the movement can inspire and influence the priorities of the mainstream. The goal of this exercise wouldn’t be to compromise the movement’s principles and vision, which I believe are fundamentally correct, but rather to become informed about the ways the movement’s aims might gain enough traction to precipitate organic change from the grassroots.

Returning to the above quotation, I believe that this hypothetical exercise must consist of reflection on the ways individuals adopt and modify their political values. Kaminer’s quote illustrates two such ways. First, intellectually curious people are not limited by an absence of direct experience from developing political positions – from their armchairs, so to speak. Second, such background ideologies are quickly dispatched in the face of relevant direct experience, especially a serious exigency or crisis. In the next section, I will briefly discuss how these principles might apply to the pro-privacy movement’s agenda.

Part II: Defining The Privacy Value

The pro-privacy movement seems to aim at the first of these modes of adopting political values. Much of the course’s materials explored the theoretical underpinnings of the right to privacy and ways that these underpinnings are threatened by recent societal developments. The course did succeed in conveying these principles and threats with far more rigor and detail than would be achievable through passive media exposure. But at the same time, it isn’t like these ideas aren’t being circulated within the mainstream. There is currently active public debate, facilitated by the mainstream media, on several of the forefront issues from our class, including network neutrality, Facebook and data mining, abusive warrantless surveillance, protections for text messaging, and a certain state’s recent immigration legislation, among others. These debates will be settled in individual cases by courts or by public opinion, through either elections or market forces. The point is that the arguments are out there, and people just have to take sides. The question is: on these debates where privacy is the central issue, how does the movement attract people to its side?

My position is that this must happen by outlining and/or clarifying the political value of privacy for the mainstream. While data mining through Facebook and warrantless surveillance are disquieting to most, I wonder whether these are extreme examples that don’t quite illuminate the boundaries of the privacy right. For this to happen, more emphasis should be placed on the difficult borderline questions that cause reasonable people to deviate from their background ideologies. Such situations require a balancing of the privacy right against other values, and through this balancing the right’s weight can be ascertained.

An example of this type of issue is the right to use the internet anonymously. As a First Amendment matter, anonymous speech has long been regarded as a “shield from the tyranny of the majority.” Accordingly, courts have applied stringent evidentiary standards in deciding whether to grant subpoenas to identify anonymous internet speakers, and groups like the EFF and ACLU work on behalf of anonymous internet users seeking to protect their identities. Shifting from the legal sphere to the public sphere, however, it is less clear whether the mainstream observer agrees that anonymous speech should be so vigorously protected, particularly in light of the profoundly enhanced defamatory potential of Google search results and message boards as compared with pre-internet forums. For example, in the infamous Autoadmit lawsuit, in which two arbitrarily selected law students were relentlessly harassed by anonymous message board posters, the distaste of many for the episode blurred and superseded the academic contemplation of abstract privacy rights. Regardless of our personal policy views of such incidents as students in this seminar, it would behoove us and the pro-privacy movement generally to engage with these emotional reactions to privacy-related issues and search for satisfactory responses, so that we might develop a coherent formulation of the privacy right to wield in current and future debates.

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