As we finish up the semester of Digital Media Culture at John Cabot University, our subject now is privacy. Last week we discussed social networking. We read dana boyd’s book, It’s Complicated, and that naturally led us to review Facebook’s Terms of Service, about which I wrote a blog already. This week we are reading Helen Nissenbaum’s Privacy in Context, and so I have been trying to put a couple of concepts together.
Let’s begin with Nissenbaum’s thesis. The public/private concept no longer provides adequate framework to evaluate privacy given the socio-technological transformations involved in contemporary uses of data and information flows. She offers a new framework, “contextual integrity,” as an alternative. Erudite, insightful and innovative, it will almost certainly be a key component of how jurisdictions negotiate new understanding and rules about privacy in the 21st century global information political economy. As a historian, I am interested in how we got there.
Public and private spheres derive from classical culture. Both Ancient Greece and Rome defined private as that which was not public: a citizen’s women, slaves or other servants, unmarried daughters and minor boys. U.S. Founding Fathers purposefully built on that model structured by relations of power between and among the categories of class, race and gender. That model remained largely intact until the Civil War, when the abolition of slavery compounded by an unfettered free market clearly became the driver of the large-scale social transformation summed up by the terms of immigration, urbanization and industrialization.
Once the very staple of cultural rhetoric, “public and private spheres” were in the process of being undermined by some of the very forces that produced them: democracy and a free market. The market’s voracious demands for laborers in the industrial north especially invited ex-slaves and women into its ranks. A middle-class ideal tempered that anomaly for a time, but by the middle of the twentieth-century, the jig was up as it reached a momentary high-water mark in the 1950’s. Civil rights movements, embracing the promise of democracy, not merely asked for entry into the marketplace, which in many cases, including middle class women, it had already, but for equal treatment in it.
Privacy emerged on the legal landscape as a symptom of the “public and private sphere’s” demise. The market very much disturbed social norms of privacy built into the antebellum social and political structures. Technology, in the form of photography and mass consumer journalism, attacked some of its most obvious reasonable expectations, such as the right (of a middle class person) “to be let alone.” Privacy, a quality once assumed in the cultural fabric, required reinforcement from the law to maintain a semblance of its traditional values. With a legal footing in the late nineteenth-century, privacy gained momentum in tort and some primitive “fundamental rights” constitutional cases throughout the twentieth-century until blossoming full-force in 1960’s. The Griswold case famously articled the “penumbra” notion of privacy as derived from the 1st, 3rd, 4th, 5th and 9th Amendments in support of reproductive rights. The Katz case established a 4th Amendment right to electronic communications and prompted Congress to pass the first wire-tapping law. In the area of public privacy laws, Congress passed the Privacy Act (concerning federal agency database information on individuals) the same year that it passed the Family Education Rights Privacy Act, 1974. Stretching to the end of the twentieth century, federal information privacy law has moved on to embrace financial and health care records, while in the wake of an upsurge in identity theft states have passed data breach notification laws.
Both federal and state law privacy law is still hobbled, however, by its original associations to the assumptions of public and privates spheres as defined and understood in the cultural context of the 19th century. This aspect is especially true for torts grounded in notions of secrecy, but it is equally the case for the entire sectoral approach that is in contradistinction to comprehensive privacy laws as are the norm for the European Union and other developed countries, including Japan, Australia, New Zealand and increasingly countries in South America. Let’s take stock by looking at the totality of what comprises privacy law in the United States.
Some blogs back I grouped privacy laws in the United States into five categories: Constitutional Law protecting reproductive and sexual free rights; Criminal Procedure connected with the Fourth Amendment and including electronic communications; Public Information Laws, such as FERPA; Privacy Torts; and Administrative Law. As rapid of an advance in law as this list represents, the balance between “expectations of privacy” and the law remains unsettled. The Snowden disclosures still trouble people, a signal, if nothing else, of the need to update the Electronic Communications Privacy Act, but perhaps also including a revisiting of the USA-Patriot Act and the Foreign Intelligence Surveillance Act Amendments in the government surveillance area.
In consumer privacy, the Federal Trade Commission joins the Department of Justice for anti-trust and the Federal Communications Commission for net neutrality in the larger regulatory question at hand: Does the law bequeath sufficient authority for these agencies to act in a decisive way to balance the power between the consumer and corporate interests? If so, are there “legal hooks” relevant to capture the harms involved in information privacy? If not, then do not expect them to be able to do much in the name of privacy per se. Increasingly observers are casting doubt on both of these questions.
And so now we connect the pieces. Historians can explain why privacy emerged in U.S. law as a result of the destabilization of cultural underpinnings of the traditional public and private spheres. Philosophers offer new frameworks for evaluating privacy in context that no longer rely on that these antiquated cultural concepts. But in a society that has yet to update its laws most disrupted by the Internet, such as copyright; network security; computer fraud and abuse; export control; electronic surveillance and consumer privacy, new frameworks may sit on scholars’ shelves unused for some time before a functional Congress can get around to the serious legal reform.
That is a real shame. The failure to act is a blight on U.S. governance. Ultimately, it is also an impediment to the vaulted ideas of America’s society: democracy and citizenship, innovation and free markets; privacy and personal autonomy. Why? Because these cherished qualities get caught in the ever-widening gulf between outdated laws and the global information economy. That economy continues to move with lightening speed towards the shortest routes of least resistance, irrespective of borders and often without the counter-balancing forces that countries and cultures bring to humanize technology and markets. Privacy in both U.S. and International law is a barometer of this change. Most difficult will be reconciling the self-image of the people in the United States. The society, as a rule, so enjoys the fancy of being #1. How will it explain why it allowed itself to fall behind?