privacy response1

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1 Response to Bennett: Debate Also in defence of privacy Priscilla M. Regan USA. , Mason University George [email protected] It has been in ‘ since disarray ’ Privacy has always been a messy, complicated, and rather vague concept. – earliest attempts at definition. But that’s OK other powerfully important – and similar to a number of concepts, such as freedom, liberty, and justice. That alone should not dissuade us from its use and value. st does it still capture a meaning that is valuable to us in the 21 , ury and does its ent c The question then is usage lic and philosophical discussions help us to understand and address important human and in pub social issues. To this I simply answer yes and join Bennett in defending privacy. My defence , however, proceeds a bit differently , as might be expected , to help further the privacy and surveillance community’s shared, but not new, conversations about this topic. I believe that defining contemporary problems associated with governmental and nongovernmental behaviou activities of monitoring and recording peoples’ actions, and communications is best done by rs ’. speaking in terms of ‘ ’ not ‘ In this sense then I disagree with Bennett that privacy invasion surveillance privacy is an effective way to frame the contemporary problem. The scale and scope of the problems exist systemic level (institutions, social practices, fabric of modern life) not at the level of private space at a - (invading one’s house, taking pictures from a distance, over hearing a conversation between two parties). nly used and understood, is too limited to encompass what ‘ privacy invasion ’, as it is commo The phrase Surveillance as a concept, as an has become a distinguishing and disquieting feature of modern life. image, more accurately connotes the modern landscape. for understanding, the policy problem is far more powerful than Surveillance as a definition of, or frame privacy because the way we define a problem affects what policy options are best for addressing the Privacy definitions elicit policy options that focus primarily on giving individual rights of ‘ s problem. based largely on the thinking of Warren and Brandeis (1890) and Alan Westin (1967) and ’, control to large computerized 1960s at the time that society was moving from paper records developed in the mid a capturing literally every movement on mobile, wireless not a time of decentralized dat – – databases devices and putting that i nternet. nformation up for grabs on the i As Bennett and others rightfully point lem, are the fair information practices, developed in response to privacy definitions of the prob , out generally weakly enforced, rely upon individual initiative, and narrowly cast the problem. Surveillance definitions elicit broader social, institutional pract ones that are more likely to – – ices and enforcement effectively respond to the problem. But although the problem is best defined in terms of surveillance, the social and individual value that is at Surveillance is not just a problem because it risk from surveillance is still best captured by privacy. duals but because surveillance practices affect the panoply of involves monitoring and tracking of indivi . ’ privacy Surveillance is an ‘ concerns that we have bunched together under the powerful concept of , 499. P.M. 2011. Response to Bennett - 497 8(4): Surveillance & Society : Also in defence of privacy . Regan - and - society.org | ISSN: 1477 - 7487 http://www.surveillance © The author, 2011 | Licensed to the Surveillance Studies Network under a Creative Commons . Attribution Non - Commercial No Derivatives license

2 Regan Response to Bennett : , activity or set of activities that are of concern to societies for reasons and privacy provides, perhaps not the perfect, but the most robust and concise understanding of the reason we are, and should be, concerned. Everyday surveillance ’ ‘ ‘ panoptic sort ’ (Gandy) have indeed created the ‘ digital (Lyon 2001) and the (Solo person ’ ve 2004). We mediate most of our daily existence through digital, wireless, mobile systems. The surveillance activities accompanying these have fundamentally changed the relations of people and So how do we understand that fundamental institutions, and increasingly of people and other people. st change? century our human, and perhaps predominantly liberal, And I would argue that even in the 21 understanding of that change has to do with some intuitive, conceivably innate, sense of the relationship of self wi thin the larger society – – an understanding that is generally understood as involving the value of privacy. I agree, however, with Bennett and others (Lyon 2001 Haggerty and Ericson 2006 ; Allen 1985) who ; criticize an individualistic conception of privacy. As Bennett notes, I have argued that privacy is also a common value, a public value, and a collective value – – and that when we are talking about privacy we are also talking about ‘ the larger questions about the kind of society we are building, ’ as Bennett s tates in his Similarly Steeves refers to essay . ‘ a social construction that we create as we negotiate our relations with others on a daily basis (Steeves 2008, 193). These relationships between individuals and modern ’ organizations are enormously complicat ed and now almost universally are mediated by, or occur within, socio - technical systems. Moreover, as Bennett and Nissenbaum (2009) point out, privacy is not simply about a ‘ bubble ’ around the self but about this social, relational, and contextual complexi ty. n the flow of information from the individual to And if we recognize that privacy encompasses more tha the relationships of which individuals partake, then the problem of monitoring and tracking also others but individuals (surveillance) within those relationships entails a solution that targets these surveillance fair information practices ’ as the quintessential ‘ practices. This dovetails with Bennett’s criticism of solution. Instead the solution becomes much more focused on the way these relationships are structured, This means looking at these relationships as entailing understood, and most importantly held accountable. – – as has also been recognized by those (such as Lyon 2001 ; Norris and Armstrong 1999) who start power with a surveillance perspective. Privacy enters the discussion because it provides one of the key values available to hold power accountable. Privacy invol ves a constraint on the use of power – – a rationale for setting limitations on its exercise. And , as has been noted since the beginning of our discussions of privacy and surveillance, information is a source of power. Within systems where accountability is expected and valued, justifications are required for uses of power and these justifications are necessary ex ante . a So, do we need a concise definition of privacy that conveys its larger social importance? Or is such definition sufficiently recognized in our previous discussions of a social, collective and public value of privacy (Regan 1995 Simitis 1978), or of contextual integrity (Nissenbaum 2009), or of privacy as a ; social construction (Steeves 2008)? Where sho uld surveillance and privacy scholars best spend their time – – on framing the problem, on defining the concept or value to be protected, or on developing solutions? I recognize that this is all integrated but also recognize that finding a perfect conceptual ization of the value may distract us from developing and analyzing options for responding to the problems involved. However some attention to a more clear conceptualiz ation of privacy in light of the current social and technical realities is essential an d Bennett’s piece nicely charts a path for our community. In my view, the need is for reinvigorating privacy not creating a new concept. Although I note the significance of a human rights basis for privacy, I would abandon the notion of an individual right to privacy –– agreeing with Bennett’s analysis, as this approach appear s to have muddled the territory – – and instead emphasize that the human rights justification supports a more social orientation for privacy. A human rights justification is Pitting the tent with arguments for common, public and collective importance of privacy. entirely consis individual as citizen, consumer, friend or enemy against the organizational forces of society has become unhelpful and distracting. 498 Surveillance & Society 8(4)

3 Regan : Response to Bennett Similarly, the public hotomy is too simplistic to represent the range of relationships that - private dic Instead individuals have with other people and organizations. , the conceptual foundation for privacy in eople may perceive they On the individual level, p today’s world should be its social, or societal, value. have different privacy preferences; but on the societal level, people require some measure of, and understanding of, how they can relate to others in a way that permits the development of a sense of self and connectedness to others within the society of which they are a part. This harkens back to a conception of privacy as protection against ‘ social overreaching, that Ferdinand Schoeman articulated in 1992 ’ parti limiting the control of others over our lives but also permitting us to cipate in our social lives (1992, . The notion of overreaching well incorporates the importance of accountability, of privacy as a restraint 1) on the use of power, and of the concerns that both privacy and surveillance scholars have been talking about for odd years. fifty - References 1985. Allen, A. Privacy for Women in a Free Society . Lanham, MD : Rowman and Littlefield. Uneasy Access: H. 1993. A Political Economy of Personal Information . Boulder: Westview Press. Gandy, O. The Panoptic Sort: D. and R. V. Ericson ( eds ). 2006. Haggerty, K. y . Toronto: U niversity of Toronto The New Politics of Surveillance and Visibilit Press . 2001. Surveillance Society: Monitoring Everyday Life Lyon, D. Buckingham : Open University Press . . . t: Technology, Policy, and the Integrity of Social Life Privacy in Contex Nissenbaum, H. Palo Alto: Stanford University 2009. Press . . 1999. The Maximum Surveillance Society: Norris C. and G. Armstrong . Oxford : Berg . The Rise of CCTV Regan, P. 1995. Legislating Privacy: Technology, Social Values and Public Policy . Chapel Hill: Univ ersity of North Carolina Press . Schoeman, F. 1992. Privacy and Social Freedom . New York: Cambridge Unive rsity Press. Simitis, S. 1978. Reviewing Privacy in the Information Society, University of Pennsylvania Law Review 135: 707 - 746. Solove, D. 2004. The Digital Person: Technology and Privacy in the Info rmation Age. New York: New York University Press . Steeves, V. 2008. Reclaiming the Social Value of Privacy, in I. Kerr (ed.) Lessons from the Identity Trail. Oxford: Oxford University Press . Warren, S. and L. Brandeis. 1890. The Right to Privacy, 4 : 193 - 220. Harvard Law Review Atheneum. . New York: Westin, A. 1967. Privacy and Freedom 499 Surveillance & Society 8(4)

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