What Privacy is For

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Julie Cohen Privacy LAW 343 Information and Privacy

Notes

I. Introduction

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legal scholarship has conceptualized privacy as a form of protection for the liberal self. So characterized, privacy is reactive and ultimately inessential

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the self who is the real subject of privacy law and policy is socially constructed

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Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable

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Freedom from surveillance also is foundational to the capacity for innovation

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Dynamic, emergent subjectivity — the sort of subjectivity upon which liberal democracy and innovation both rely — thrives in the interstitial spaces within information-processing frameworks; privacy regulation must focus on maintaining those spaces.

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II. Privacy's Dynamism

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Privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development

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For the autonomous self, privacy’s function is principally defensive and ameliorative. Privacy preserves negative space around individuals who are already fully formed or mostly fully formed

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liberal privacy theory’s descriptive premises about both the self and the nature of privacy are wrong. The self has no autonomous, precultural core, nor could it, because we are born and remain situated within social and cultural contexts. And privacy is not a fixed condition, nor could it be, because the individual’s relationship to social and cultural contexts is dynamic.

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A synthetic, postliberal approach to the problem of selfhood reveals a subjectivity that emerges gradually, in ways that are substantially constrained but not rigidly determined by social shaping

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Subjectivity is a function of the interplay between emergent selfhood and social shaping; privacy, which inheres in the interstices of social shaping, is what permits that interplay to occur.

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Privacy’s goal, simply put, is to ensure that the development of subjectivity and the development of communal values do not proceed in lockstep

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III. Perfect Technologies of Justice? Privacy and Liberal Democracy

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Networked information technologies mediate our experiences of the world in ways directly related to both the practice of citizenship and the capacity for citizenship, and so they configure citizens as directly or even more directly than institutions do.

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the capacity for democratic self-government is defined in part by what those technologies and other widely used technologies allow

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As a result of the shift to electronic voting, access to a core democratic capability increasingly is mediated in ways that only a minority of citizens can claim to understand.

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The surveillance society is better thought of as the outcome of modern organizational practices, businesses, government and the military than as a covert conspiracy. Surveillance may be viewed as progress towards efficient administration

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perfect technology of justice.

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Surveillance may be defined generically as attention that is “purposeful, routine, systematic and focused.”

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modulation: a set of processes in which the quality and content of surveillant attention is continually modified according to the subject’s own behavior

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“informationalism is oriented . . . toward the accumulation of knowledge and towards higher levels of complexity in information processing.”

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Information from and about consumers feeds into sophisticated systems of predictive analytics

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In the modulated society, surveillance is not heavy-handed; it is ordinary, and its ordinariness lends it extraordinary power

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a critique of surveillance as privacy invasion “does not do justice to the productive character of consumer surveillance.”

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produce tractable, predictable citizen-consumers whose preferred modes of self-determination play out along predictable and profit-generating trajectories

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The modulated society is the consummate social and intellectual rheostat, continually adjusting the information environment to each individual’s comfort level. Liberal democratic citizenship requires a certain amount of discomfort

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IV. Privacy, Big Data, and Innovation

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Conditions of diminished privacy also impair the capacity to innovate

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it is modulation, not privacy, that poses the greater threat to innovative practice

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Clearing the way for innovation requires clearing the way for innovative practice by real people

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Big Data’s claims to epistemological privilege stem from its asserted fidelity to reality at a very high level of detail

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Armed with enough data, researchers of all types will be able to jettison the post hoc, oversimple models through which they — and through them, we — have perceived the world in favor of reality, unfiltered

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Personalization is the new religion of the information society, and the quant jocks of Big Data are its high priests

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attaining the transparency required to confirm or falsify results is Big Data’s Achilles’ heel

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Big Data is the ultimate expression of a mode of rationality that equates information with truth

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the denial of ideology is itself an ideological position

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subjectivity constructed in the service of the self-interested agendas of powerful economic actors

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The techniques of Big Data subject individuals to predictive judgments about their preferences, and the process of modulation also shapes and produces those preferences.

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Big Data represents the de facto privatization of human subjects research, without the procedural and ethical safeguards

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A commitment to privacy expresses a different kind of “sound reason” that we might choose to value — one that prizes serendipity as well as predictability and idiosyncrasy as well as assimilation

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Stimuli tailored to consumptive preferences crowd out other ways in which preferences and self-knowledge might be expressed, and also crowd out other kinds of motivators — altruism, empathy, and so on — that might spur innovation in different directions.

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promotes particular kinds of innovation that are extraordinarily important

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Environments designed to promote consumptive and profit-maximizing choices will systematically disfavor innovations designed to promote other values. The modulated society is dedicated to prediction but not necessarily to understanding

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V. Mind the gaps

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Effective privacy protection must target the qualities of seamlessness and opacity that together enable modulation.

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Faith in the redemptive power of information technologies persists even when the appropriate tools are unavailable

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opponents of search engine regulation have seemed almost willfully blind to the thrust of Pasquale’s critique, which has to do with the role of technical opacity in producing and reinforcing modulation

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the “paranoid style” in regulatory reform: an intense worry about the risks of state coercion and bumbling, combined with relative insensitivity to the ramifications of private power

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acknowledge that privacy is the opposite of modulation and can exist only to the extent that processes of modulation are gap-ridden, transparent, and incomplete.

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The capacity for citizenship and the capacity for innovative practice depend importantly on the scope and reach of private-sector information processing.

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the interstitial character of privacy suggests a need to rethink the conception of due process as individualized decision-making

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effective protection for dynamic privacy requires affirmative measures designed to preserve and widen interstitial spaces

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Semantic discontinuity is “the opposite of seamlessness: it is a function of interstitial complexity within the institutional and technical frameworks that define information rights and obligations and establish protocols for information collection, storage, processing, and exchange.” Semantic discontinuity helps to separate contexts from one another, thereby preserving breathing room for personal boundary management and for the play of everyday practice.

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engineers exert enormous power to shape the nature of innovative activity and the direction of public debate, yet they are not systematically held accountable

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