[Note: this is an early draft of the third section of a paper I’m working on titled ‘Who Gives a Tweet about Privacy’ and builds from an earlier posted sections titled ‘Privacy, Dignity, Copyright and Twitter‘ and ‘Twitter and Statutory Notions of Privacy‘. The final sections will be posted as I draft them.]
Simitis recognizes privacy as an issue concerning all of society. As a consequence, his position on the topic is differentiated from those of Westin, Warren, and Brandeis by asserting that privacy is essential for establishing and maintaining constitutional infrastructures. In this section, we take up the ‘social’ element of privacy, exploring it in more depth and to consider its role in establishing citizen-solidarity. In addition, we consider privacy as a contextualized norm that attaches different expectations of privacy to particular situations and encounters. While social-contextual accounts establish reasonable expectations to privacy in public, our hopefulness surrounding these accounts wears thin because the selected scholars exhibit an under theorized conceptualization of how socio-contextual norms are established. Effectively, without an account of how socio-contextual norms are developed in pluralistic environments we are left with little understanding of how to read privacy norms in public spaces like Twitter. Thus, while understanding privacy as contextual integrity does establish reasonable expectations (note the plural) of privacy, the multiplicity of such instantiations renders such understandings of limited usefulness for juridical application in contemporary pluralistic nation-states.
Privacy, Society, and Citizen-Solidarity
Pricilla Regan, in Legislating Privacy, argues that it is challenging to address privacy-related problems when they are recognized as individual, rather than social, issues. She argues that a social understanding of privacy is needed to recognize the breadth of data collection (similar to Simitis), and wants to shift privacy discussions from the language of ‘balancing’ individual and social interests to ones about competing societal interests. Modifying these discussions to recognize privacy’s social value will, hopefully, provoke more nuanced understandings of privacy’s roles in contemporary democracies and readjust the stance that privacy should be sacrificed on the alters of social security and market efficiency.
Regan’s position rests on three pillars, two normative and one economic. Normatively, privacy is a common value because all individuals have some interest in privacy. Further, privacy retains a public value because it lets individuals limit personal disclosures and thus facilitates citizen-solidarity; too much personal disclosure would upset citizens’ capacities to identify with one another as similar rights and duties holders (Regan 1995: 222-223). Economically, privacy operates as a collective, or non-divisible, economic good – it cannot actually be ‘allocated’ to individuals as products such as candy bars can, and consequently cannot be understood as just an individual’s personal issue (Regan 1995: 223-224).
While she is situating privacy as a common value, Regan does recognize the value of individual claims to privacy (intimacy, seclusion, anonymity, etc) but her focus on the social lets her avoid laying state to any particular claim or understanding of individualist privacy expectations. She isn’t saying the privacy is just a social value; it still retains value for particular individuals and there is merit in examining how and why individuals value privacy (Regan 1995: 213). Given that individuals uniformly hold some position towards privacy, she argues that it is a commonly held (though differently realized) value. It also has a public value insofar as it facilitates a reflective and independent body of citizens. It is essential that each citizen “can at some points separate himself from the pressures and conformities of collective live” (Emerson 1970: 546, referenced by Regan 1995: 225). Such withdrawals are helpful not only for developing thoughtful modes of political engagement, but also to promote citizen-solidarity. According to Regan, the more that we know about one another the less we perceive commonalities between us – privacy, or seclusion from the other, lets us avoid endangering social stability by learning too much about each other (Regan 1995: 227). In terms of economic norms, privacy is a collective good because it cannot be divided, nor can individuals be excluded from receiving privacy as a ‘good’ when laws, rights, and regulations are passed. Based on these three pillars privacy must be read as shared social good.
With these pillars in mind, we might wonder what it means for individuals to intentionally exhibit themselves in virtualized spaces such as Twitter. These communications environments rely on individuals to broadcast their particularities to maintain the services’ business models – does participation in Twitter, where individuals demonstrates their particularities at the expense of seclusion, threaten to upset the communicative fabric stitching nation-states together? While we might think that this is preposterous, given that a minority of any population uses Twitter, suppose we abstract slightly and assume that a nation-state’s entire population decides to tweet on a regular basis. Does such a mass public broadcasting of personal data undermine the privacy that individuals require for a functioning democracy? If this is the case, then should services such as Twitter be regulated to secure the continuing legacy of the nation-state and limit public broadcasts of personal data?
Both of these questions appear somewhat absurd on their face, but suggest a few things. First, the strong relationship between seclusion and citizen-solidarity is problematic and likely needs to be adjusted or softened. Second, it appears as though there should be a distinction between mandatory and voluntary disclosures of personal data – seclusion must be something available to individuals and not something they are obligated to engage in. Thus, the ‘danger’ that public communicative environments would infringe on seclusion-related privacy is only realized if all discourse is forced onto public virtualized platforms. Barring this, Twitter does not seem to necessarily threaten either privacy at large or the continuing existence of the nation-state. At the same time, however, Regan’s discussion of privacy does articulate the need to situate expectations to privacy in both terms of the individual and the society. As a result, the social environment that a discussion occurs in must be taken into account, as must the ‘classical’ understandings of individuals’ privacy discussed by theorists such as Warren and Brandeis and Westin.
Contextualizing Privacy in Public
Helen Nissembaum would likely insist that citizen-solidarity (in terms of the privacy discussion) is only threatened when data is appropriated in violation of normative expectations concerning how personal information will be appropriated and subsequently distributed. The former norm correlates with what is appropriate or fitting to reveal depending on context of the data collection – merely being in a public space does not mean that all information collections are appropriate (e.g. demanding to know a stranger’s name and not accepting ‘it’s none of your business’ as a response would be inappropriate, whereas giving one’s name to an employer would be appropriate) (Nissenbaum 2004: 120-121). The latter norm is meant to establish that there are some transmissions of personal data are acceptable whereas others are not; while I might expect a public ‘tweet’ to be reposted on Twitter, I might not expect it to be transferred into a databank that us used to develop detailed consumer profiles.
Effectively, Nissembaum is arguing that personal information is always ‘tagged’ with a particular context and that, as a result of contextualizing the norms governing data sharing environments, privacy is never wholly ‘up for grabs’. Instead, conservative social norms ought to govern what are appropriate data collections and transmissions of personal actions and conversations that take place in public. Moreover, given that the scope of these norms is internal to its context she is refusing to adopt an a priori understanding of what is and isn’t captured under the umbrella of privacy. What is considered private should “reflect norms of appropriateness and flow, and breaches of these norms are held to be violations of privacy” (Nissembaun 2004: 127). While her theory of contextual integrity is universally applicable, its avoidance of prescribing what are private and public actions leaves it sensitive to different cultures, political systems, and nation-states.
On this account, expectations of privacy in public would reflect the culture’s normative accounts of what are and are not appropriate collections and transmissions of data gathered in public environments. This may mean that broad data collection of the ethnicity of public transit users is acceptable in some contexts, and unacceptable in others. One of the difficulties facing this account of privacy in public, however, is that while Nissembaum thinks that conservative norms should guide what are and aren’t appropriate norms we are left without a clear statement that identifies what groups are responsible for establishing these norms. Do legally actionable norms coagulate at the level of the nation-state, the city, the city block, the ethnic community, or something else?
When we turn to reflect on discourse in public spaces such as Twitter, some of this ambiguity may fade away. In this environment, the technical design of the communications network suggests that other users can appropriate and retransmit tweets on the network. At the same time, however, with an open API and the widespread development of statistics software that is custom-built for Twitter we might question whether the collection and storage of vast swaths of user data for analysis an inappropriate transmission of data between databases and third-parties. Does an open API mean that individuals ought to expect their conversations to be harvested, or instead should each person’s understanding of a privacy norm be independently examined and evaluated? Adopting the latter position would seem to run contrary to most North American understandings of creating data sets and consumer profiles, but in cultures such as Germany with strict requirements for capturing personal data such a position might seem more acceptable.
The global geography of Twitter, and similar digital systems, on the face of it presents a challenge to Nissembaum’s theory given her lack of clarifying what is, and isn’t, included in developing and identifying ‘conservative’ norms. In a multicultural, multiracial, multinational communicative environment with vast numbers of competing notions of what are reasonable expectations of privacy in public she has left us without a clearly defined system of adjudicating these claims. It will be as we turn to Daniel Solove’s work, Understanding Privacy, that we will see an effort that accommodates the best insights of Brandeis, Warren, and Westin, recognizes the need for privacy in a broad social context, while providing both a contextualized and actionable approach to privacy.
Helen Nissenbaum, “Privacy as Contextual Integrity,” Washington Law Review Vol 79, No. 1, February 2004: 119-158.
Priscilla Regan, Legislating Privacy: Technology, Social Values and Public Policy (1995), Ch. 8. “Privacy and the Common Good.”