Today is Data Privacy Day, a great time to remember that we live our lives increasingly in visible, recorded ways, and that privacy is something that belongs to all of us and to each of us. Also, it’s a day when privacy professionals post jargon-filled memes that no one understands. “Did you hear the one about the Article 49 derogation?”
Words Have Meaning(s)
Thinking about privacy is almost always an invitation to think about what the word actually means. 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. 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.
Lawyers aren’t alone: philosophers do the same kind of thing with language, trying to make a point and then realizing that it’s very hard to do with the existing language. But where lawyers will simply cram new meanings into words or bend them all out of shape, philosophers usually say something like “My ideas are perfect, it’s human language that’s insufficient.” German philosophy is notorious for this very concept, which is why there’s a difference between “being,” “Being,” “be-ing,” “Be-ings,” “being-in-the-world,” and “Beings-in-the-World.” Also, the random capitalization is very unnerving.
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 saudade — and 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.”
It’s All Latin to Me
Words matter, of course, because they frame our understanding of a concept, evoking the image of what it is we’re talking about, even when we can’t quite see it clearly when we describe it. Want an example? We talk about “seeing things clearly” when we imagine them or the image of an idea appearing in our mind, but that’s perhaps unsurprising: the word idea comes from the Greek ἰδέα, which (simplified) means “image” or “thing seen.” Our very idea of an idea is inseparable from the word we use for it.
But what does this have to do with privacy? Well, think for a minute about what privacy means. Just take a second and contemplate it. Done? 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.
So what does it really mean? “Privacy” has roots in Latin’s privatus, which was largely about setting an individual apart from the broader public (private person, private property). But over the years, privacy has had so many different meanings that we can’t blame the Romans for failing to give us clarity. How could they? Every society comes to terms with just how much intrusion into our inner life is acceptable. Privacy, then depends context — what would qualify as baseline privacy in Boston in 2021 would have qualified as an irrefutable sign of criminal sinfulness in Boston in 1621.
Part of the problem is freedom. We’re using our freedom to decide what privacy means for each of us to come up with definitions of what privacy means for all of us. But not all freedoms are the same — some are positive, some are negative. You can think about positive and negative freedoms, here 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, the police, your neighbor.
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, it is a recognition of a zone where our character, personality, personhood, or identity extend outward and touches 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 remnants of things already gone.
“So what if we can’t come up with a definition of privacy that fits all our needs? What word actually does?” That’s a reasonable critique. We can’t really expect to capture all of those essential traits in a single word, or even a phrase. But I’m not arguing linguistics, I’m suggesting that our use of language has a profound effect on how we think about things, and so we should pay more attention to how we think about the meaning of “privacy.” It was Plato who first called an idea an idea — he framed thought in terms of images, and that’s still the framework we use today.
But privacy, as a word, doesn’t conjure a single image, so why should it have only a single meaning? At the very least, we need to think of privacy as more than the absence of snooping. It must be both a positive and a negative freedom if we’re to meaningfully have space for everything that the concept should encompass. That means you should be free from warrantless wiretaps or companies that monitor your feelings, but you should also be free to choose how to share your life with others and to express your views.
In a sense, we should think of privacy not as something that resides in an individual, but something that surrounds them. This is where the bubble wrap metaphor comes in — a layer that’s transparent enough to allow you to be seen but also a protection against harmful intrusion. The more bubble wrap, the more protection, but also the greater the degree of constriction: sure I can bubble wrap my experience online (no cookies, no tracking, ProtonMail account etc) but it’s going to be a slower, more plodding experience, which has its own costs.
The important point, on Data Privacy Day, is that we should all be allowed to choose how much bubble wrap we want without having to explain ourselves to anyone else. After all, it’s a private matter.