BOOKS DECEMBER 13, 2011
by Anita Allen
Oxford University Press, 280 pp., $42.50
ANITA ALLEN STARTS her book by claiming that people do not care enough about their privacy, and that, in limited circumstances, the government should force people to keep information private that they would rather disclose—what she calls “unpopular privacy.” Such laws already exist for children, who are protected from websites that seek information from them, but have not been extended to adults. But adults blunder, too; and so the question arises whether the government should force individuals to keep intimate information private so that they do not later regret its disclosure. An affirmative answer might make people uneasy, especially liberals and libertarians, who do not believe that the government should act paternalistically. Allen sets herself the task of defending what she calls a type of “modest paternalism” where “unpopular privacy” is mandated.
But as Allen’s book proceeds, the reader looks in vain for the defense of “unpopular privacy.” She surveys privacy law, as well as various areas of the law that abut privacy law. She starts with seclusion, which is an aspect of privacy: people maintain privacy about their physical appearance by secluding themselves from the public. But of course no one thinks that seclusion should be mandatory, which is what might be implied by the “unpopular privacy” idea. Instead, Allen argues from the value of seclusion that telemarketing calls should be banned or at best subject to an opt-in procedure. People already can opt out from telemarketing calls through a national registry and can evade them by using caller ID, but Allen thinks that not enough people do so because they do not place sufficient value on their own privacy. So “unpopular privacy” means compelling or encouraging people to shield themselves from telemarketing calls. Allen does not explain how she knows that people value their privacy too little; maybe she cannot conceive of why anyone would welcome a telemarketing call.
The book continues in this vein. Allen considers different topics, many of them peripheral to the usual concerns about privacy, and draws conclusions that advance her thesis little or not at all. Writing about imprisonment, Allen calls it a system of forced privacy—an odd claim, given that prisoners enjoy virtually no privacy at all. Allen criticizes French laws that forbid Muslim women to wear religious garb in public. She disapproves of restrictions on nude dancing except where nude dancing can be shown to cause harm (and there is no evidence that it does). She approves of laws that require professionals like doctors to protect the confidential health information of clients or patients. Under the heading of racial privacy, she sympathizes with those who want to prevent government from collecting information about people’s race, but fears that if the government were forbidden to do so, affirmative action would be impossible. In a chapter on lifeblogs—blogs in which people record every detail of their life and widely publicize this information—Allen worries that lifeblogs will spoil the lives of their users and violate the privacy of people with whom they interact. Then Allen defends laws that protect the privacy of children who would otherwise disclose information to websites, and speculates about whether young adults should be subject to a similar mandate before concluding that it is not practical.
These various pieces do not fit together very well, but the upshot is clear: Allen thinks that the government should protect people’s privacy in all those uncontroversial cases where people want to protect their privacy, and should allow people to waive their privacy rights pretty much whenever they feel like it. The concept of “unpopular privacy,” the idea that people should be forbidden to waive privacy rights, falls by the wayside, except where telemarketing is concerned. In the chapters on nude dancing and modesty, for example, Allen simply makes the conventional liberal case for governmental non-interference with private choices except when they harm others. Since women who veil themselves and women who unveil themselves do not harm anyone, the government should not interfere with such choices. For Allen, the paternalistic impulses behind these laws are unjustified. Yet the whole point of the book is that a “modest paternalism” that forces people not to reveal information may be justified. It is peculiar, then, that Allen should devote so much space to criticizing paternalism as it appears in a major area of privacy law. Allen never seems to notice the tension between her position on nude dancing, veil-wearing, and other issues, and her position about unpopular privacy.
Or maybe she resolves this tension by abandoning unpopular privacy except for the purpose of restricting telemarketing calls. By the end of the book, the initial argument in favor of mandating privacy for adults on the web is gone. The defense of unpopular privacy becomes an abstraction, unmoored to any policy proposal. As Allen acknowledges, there is no way to prevent people from disclosing information about themselves, even if there were some reason to believe that one should do so. People can blab about their secrets to friends and strangers, post them on blogs, publish them in memoirs, report them on Facebook, tweet them, and confess to Oprah on TV. So the sheer impracticality of restricting the disclosure of information makes this proposal a non-starter.
Beyond that, Allen provides little reason for believing that people should not disclose their secrets if they want to. We have all heard anecdotes about employers refusing to hire people who have posted embarrassing photos of themselves on Facebook, but a few anecdotes hardly justifies restrictions on activities that so many people value and enjoy. Public confessions relieve the confessor of guilt and gratify his desire for attention, offer solace to those who transgressed similarly and seek affirmation, and confirm the moral superiority of everyone else. What’s not to like? Nor is it a bad thing that people who tell the world about their foolish behavior later forfeit jobs if those jobs require judgment and discretion.
Allen’s book contains some interesting material but mainly reproduces well-known arguments before petering out inconclusively. What went awry? Allen argues in a peculiarly rigid way. She likes to remind the reader that she is a “liberal and feminist,” and the only question for her is what a liberal and feminist should think about privacy, as though no other philosophical approach has standing in public debate. As a result, she does not take seriously the arguments of people who are not liberals and feminists, which impoverishes her book; it seems more like ideological catechism than philosophical argument.
What remains is a kind of derivation from what liberals are supposed to think in general to what they should think about privacy. Allen resorts to the gaseous pronouncements of modern liberal philosophy, which says that people’s “autonomy” should be protected, that they should be allowed to “flourish,” that “human dignity” is the priority. What these ideas mean for the practices that Allen cares about—mainly, seclusion, sharing of personal information, and exposure of one’s body—is obscure. “Human dignity” is a capacious concept: laws that prohibit exotic dancing might be thought to reduce human dignity (by depriving people of choice, thus treating them like children) or advance it (by eliminating practices and images that degrade people). When one sweeps away the verbiage, it becomes clear that Allen is a follower of John Stuart Mill. She applies Mill’s harm principle to issues of privacy, and unsurprisingly holds that the government should not interfere with people’s choices except when they cause tangible harm, as opposed to speculative harm or mere offense to the sensibilities or moral or religious commitments of others.
But even the harm principle provides little guidance for the difficult questions posed by the Internet and related technological advances, which allow people to disclose information about themselves more quickly and broadly than was possible in the past, and with greater consequence for their reputation because the information is preserved indefinitely. One can easily argue from liberal principles that transparency should be welcome, and the more the better. If people lived in transparent bubbles, that is, they enjoyed no privacy and lived under constant observation, then they would be unable to defraud, abuse, and take advantage of other people, as their bad behavior would be easily discovered by their victims and others.
In this way, the harm principle would be vindicated: people’s choices that do not cause harm would be enhanced rather than restricted, while it would be more difficult to harm others and avoid the consequences. Moreover, because the rich and the powerful can guard their privacy more effectively than other people, a world without privacy would be one in which everyone would be on more equal footing. Feminists should approve such a world as well, as the public availability of information about men’s past behavior toward women would help women protect themselves from entering abusive relationships and joining workplaces where women are harassed or disvalued. Even conservatives ought to find something of value in this scenario: it recreates small-town life where everyone knew everything about everyone else, and where, as a result (at least in popular memory), everyone tried harder to comply with moral commands.
This vision of universal transparency has a distinguished philosophical tradition, and it continues to animate some important projects such as WikiLeaks, but today it is dead as a philosophical ideal outside some hacker communities (which of course insist on anonymity for themselves). People still want to control information about themselves. All that has changed is the type of information that enhances one’s status.
The Internet, which for the first time provides the technological means for achieving transparency in mass society, is seen as a threat to our integrity as human beings rather than as a springboard to utopia. Why this is the case is not as obvious as it might seem. One possibility, which Mill himself would have appreciated, is that privacy is one of the few bulwarks against the exhausting human impulse to conform. If everything that I do is posted on the web, then I might feel compelled to bring my behavior closer to the social norm so that people don’t regard me as an oddball and shun me. On the other hand, the diversity of behaviors that would be revealed in a world without privacy might weaken the incentive to conform rather than strengthen it. Certainly, greater openness in the past fifty years, led by an army of nosy journalists and narcissistic memoirists, has brought with it greater tolerance for behavior that was considered deviant. While it is sometimes argued that it would be psychologically exhausting to disclose everything about one’s life, it is also psychologically exhausting to deal with people about whom one knows nothing, and in any event our ancestors seemed to get on fine for thousands of years in small groups or tribes where privacy could not have existed.
Privacy might also be considered an element of the social contract. If we all have defects and histories that shame us, then we might agree that we should all be permitted to keep them private. Each of us gains more by keeping our secrets than we lose by giving up access to the secrets of others. But does the tradeoff actually favor privacy? If we all revealed our foibles, then we would all have to continue to deal with each other, but with open eyes, and hence protected against forms of advantage-taking, so that in fact we gain more than we lose.
Maybe the problem is not the loss of privacy as such, but rather the risk that I lose my privacy when others do not. This is the difference between being one of a number of naked people in a locker room and being the only naked person in the public square. Getting from the inferior equilibrium in which everyone enjoys privacy (and hence must do with limited access to information about others) to the optimal equilibrium in which everyone enjoys unrestricted access to information about others (but no privacy) will be difficult, because few people will want to take the risk that if they go first no one will follow. If this is so, Allen’s prescription is exactly backward: we should insist on unpopular publicity, and mandate transparency, not privacy. In the meantime, we should praise rather than condemn those young people who lead the way by insouciantly uploading their private lives to the web.
Eric A. Posner is a professor of law at the University of Chicago.