Why Privacy Can’t “Return to Normal”

Three-quarters of the way through 2020, it feels as though January was a decade ago.  How could it not, given the social upheaval, economic turmoil, the fractured and fractious political campaign, and the deadliest, most consequential pandemic in four generations.  We are living in a spin cycle that seems only to accelerate, a dizzying tumult that has made even the language we use start to seem unfit for the times.

Unsurprisingly, many want nothing more than a return to normal, the status quo ante.  Nine months ago, we all heaved sighs of relief when 2019 closed, sure that things couldn’t possibly be as bad in the new year, only to find ourselves now missing the halcyon days of Brexit arguments and impeachment.  Yes, the impulse to go back makes some sense.  The deepening intensity of these times makes it seem as though the cure for our ills is cancelling 2020 and starting over.  Think I’m joking?  Radio stations were already getting requests for Mariah Carey’s “All I Want For Christmas Is You.”  Last week.

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That desire for escape is the same impetus behind the rush to open beaches, open bars, and open faces in the United States over the summer.  After months of promises that things would “soon” be the way they were, people simply decided that it was no longer possible to wait, and the time to embrace the pre-pandemic way of life had come.  The result has been a Greek tragedy of inevitable spikes in infections, hospitalizations, and deaths coupled with recrimination from both sides.  And the acceleration is deepening: Florida (population of 21 million) reported double the number Covid cases last month than Poland (population 37 million) has reported ever.

The idea of returning to normal may seem like a welcome respite from the deprivations of lockdown, but the consequences of this kind of thinking show us that “the way it was” is in no way “the way forward.”

The Definition of Insanity

In one sense, doing things exactly as they were done has the comforting appeal of the familiar.  Virtually everything about the pandemic and lockdown is, for those in the West, new and alien.  Descriptions of lockdown have ranged from “unfortunate necessity” to something akin to “unacceptable restraint on liberty.”  As a result, some have acted as though none of the restrictions called for by public health experts mattered, and have carried on as normal during the summer months.  This is the point at which the unavoidable reference to the (wrongly-attributed) Einstein quote about doing the same thing and expecting a different outcome makes its appearance.  Even if Einstein had said it, surely a better definition for insanity is “actions utterly divorced from reality driven by impulse without regard for reason, fact, or context.”

And context, certainly here, matters. One of the things that lawyers have to learn very early is how to parse language.  Whether it’s reviewing a legal decision, drafting a contract, or deciphering a complicated statute, words are the life of lawyers, and the law — it’s part of the underlying philosophy of the law, in fact.  They say that law school isn’t about learning to be a lawyer, it’s about learning to think like a lawyer, and that’s true — but what that actually means is learning how to understand language in the way that lawyers do.  Ask anyone who’s ever met a first year law student home on break what it’s like to discuss literally anything, and you’ll know what I mean.

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It’s All Latin to Me

What do lawyers and philosophers have in common, then?  Aside from unpopularity?  An understanding that, sometimes, the words we use lack the precision, the clarity, or the nuance to really convey what we mean.  Ever come across a word in another language which English utterly lacks — like saudadeand which requires a torrent of half-explanations to convey?  Or perhaps tried to explain how or why you feel a certain way when you can’t even put your finger on it yourself?  Then you know what I mean.

And you implicitly understand why we have a big problem with the word “privacy.”

Wait, what does this have to do with privacy?  Well, think for a minute about what privacy means.  Just take a second and contemplate it.  Was your answer “the right to exclude others from one’s domain and those spaces in which one has a reasonable expectation of non-intrusion?”  No?  What about “the right to be left alone.”  Maybe?  The point is that, regardless of what definition you chose, it’s going to differ substantially from mine, and certainly from the multiplicity of legal definitions at play in the US, Europe, and around the world.

The word itself has some hazy origins, but it comes (broadly) from the Latin privatus, which means (something kind of like) “deprivation from, exclusion from.”  In other words, separateness, apartness.  Unsurprisingly, this is another unsatisfying answer, particularly in current times.  If privacy is all about separation and being removed from other people, then why at a time when we are more isolated (at home for months at a time) do we feel like we have less privacy and are more observed?

Picking up the Threads

You can think about positive and negative freedoms, again, in terms of language: negative freedoms are broadly “from” something, while positive freedoms are “to” or “to do” something.  Sometimes, rights or liberties take on characteristics of both.  Freedom of conscience, for instance, includes the freedom from oppression (no imprisonment for attending services, theism is not officially banned) as well as positive freedom of free exercise (you can vote or hold office regardless of religion or irreligion, you are allowed to attend religious services if you wish).  Of course, there’s overlap and the concept is messy, but it makes sense in a general way.  Negative freedoms are about what other people do (and stopping them) while positive freedom is about you, and what you can do, or decide not to.

Now let’s try to apply that to privacy.  Just from a linguistic perspective, privacy comes across as negative: a privation, an exclusion, the pushing away of others from oneself.  We even used to call the most exclusive location in the world the “privy.”  More legalistically, privacy’s classic definition is “the right to be let alone,” as future Supreme Court Justice Louis Brandeis put it in 1890.  Even though privacy is characterized as a right “to” be left alone, what we’re really talking about is the right to be let alone by other people — the government scanning email transmissions, the police flying a drone, your boss watching you on Zoom, your neighbor observing your housecleaning methods.

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What we’re really looking for is a word or concept that captures our right to be, free of unwanted or uninvited influences insofar as such a thing is possible, as well as our more general right simply to be free of those things in a particular context.  The “privacy” we’re talking about is not an exclusion (there’s privatus again), it is a recognition of a zone where our character, personality, personhood, or identity extend outward and touch the world around it, but still within our broad control to change.  We want “privacy” to give us not a wall or a shroud, but threads to hold onto, like reins, to the various aspects of our lives — each thread tracing back to an origin point in our own lives, and maybe even before or outside of our own lives, like family, culture, custom.

The interrelatedness of each of these threads means that they serve multiple purposes.  They are reins by which we control the movement of our lives; they are chains binding us; they are the ties that relate us to one another; they yoke us to power structures that command us; they are the lines of a story, the components of a tapestry; they are loose ends that we throw aside; they are reminders tied around our finger of what needs to be done; they are the remains of things already gone.

Some Personal Space

Those threads are exactly why privacy matters so much — taken together, they help identify who I am as a person — although never in my entirety — and, in a sense, where I am — at the center of my own threads, but tied to other people and places as well.  If we think of privacy, then, as kind of a physical space around us where we can allow others in, but never have to, then we get much closer to an idea that meets the impossible-to-define sense that privacy has.

Now think about that idea in the context of COVID.  At home, in front of our screens, most of us have had more physical space from other non-family than at any time in our lives.  Working from home, not going to restaurants, all of our social distancing has left us more removed from other people.  At the same time, although we’re not “seen out” as much, we’re observed more than ever before.  Recorded videoconferences, new biometric data gathering, productivity-tracking apps on our laptops are all tokens of a new, and not altogether private way of existing even in the most private of spaces, our homes.  Obviously, some of this is essential to carrying on our worklives and the activities we’ve had to give up.  But make no mistake, the space around us that most consider private is punctured.

Taking that idea a step further, ask yourself whether you think it’s likely that these new monitoring measures will disappear in the (hopefully near) future when the pandemic abates and we revert back to normal work routines or going out.  Will our office spaces dismantle the productivity monitors or webcam scanners designed to identify ill-attention?  Will the spate of health-tracking devices spawn a new industry in trafficked health data?  More broadly, will a return to “normal” signal a move to more privacy, less intrusiveness, and a more integral private sphere?

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Probably not, right?  We generally assume that monitoring, and the incursion into the private space that it brings, is what lawyers call a “one-way ratchet.”  You can turn things in one direction, but they never really go back to the way they were.

That might sound unacceptable, and it is, if you think about it from the standpoint that, regardless of who you are, someone will be watching.  In the early industrial era, bosses watched the workers, and that was a source of friction.  But today, employers and employees, owners and partners, everyone is part of the same, visible space and everyone has their own sense of privacy and the private space that they want to define for themselves.  This is the reason privacy is considered a human right under international law — the desire for that sense of place and space is something everyone has, even though it manifests itself differently across cultures and countries.

What is to be done?  Partly, we need to stop thinking about privacy as something that requires a “return,” some kind of restoration of a golden age.  Privacy has never been an absolute — unless your ancestors were ascetic hermits, they almost certainly lived in very close proximity to the people that constituted their entire world (also, it’s unlikely that your ancestors were ascetic hermits because, you know, celibacy.)  Establishing privacy as a foundational right is about identifying what kind of space we want today, in our own context and time.  Forward-looking approaches to privacy will accept the benefits of technology and systems without acquiescing to unnecessary intrusion and surveillance.  We say this a lot, but it’s a balancing act, one that’s hard to get right, but crucial if we want to maintain a sense of ourselves, in our space, no matter where we are.

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