By Anita L. Allen, a law and philosophy professor at the University of Pennsylvania.
An expanding library of books addresses the fate of privacy in the Era of Revelation. The central theme of my contribution to the genre sets it apart. My book’s focus is “unpopular” privacy, rather than the “popular” privacy people in the United States, Canada and Europe tend to want and expect government to secure. I define as “unpopular” privacy that is unwanted, disliked, not preferred, and resented by the people it is suppose to benefit or constrain.
Testing the plausibility ofprivacy paternalism for liberal societies, I engage readers in a wide-ranging discussion of physical privacies of seclusion, isolation, and bodily exposure; and then informational privacies of confidentiality and data protection. Specifically, under the rubric of unwanted physical privacies, I discuss nude dancing, Muslim attire, public health quarantine and super max prison cells; under informational privacies, I take up whether “race” counts as sensitive data, the confidentiality obligations of lawyers, health care providers and other workers, electronic social networking, and online commerce and self-exposure.
Should youthful Internet users be blocked from websites that collect sensitive personal information, for their own good? Should the law oblige us to forego Amazon.com since the giant consumer goods seller keeps track of our purchases and makes recommendations, or gmail because it pitches ads to us based on words that appear in our private messages to family and friends? Should adults with intimate secrets be banned from publishing them? Is there a possible justification for laws that ban Apps that monitor and store health information in the “cloud”?
Unpopular Privacy explores the normative underpinnings of laws that promote, require, and enforce physical and informational privacies. My book struggles to understand the values that prompt real and imagined unpopular privacy mandates. Persuading libertarians and feminists with whom I identify to endorse regimes of imposed privacy is a significant intellectual challenge; both groups famously caution against the subordinating potential of compulsory privacies.
In Nudge (2008), Cass Sunstein and Richard Thaler defend a nonintrusive type of state paternalism that self-consciously attempts to guide people in directions that will improve their lives without significantly impairing choice. They argue that without such intervention people will fall prey to procrastination, lack of self-control, information deficits, overreliance on rules of thumb, and cognitive biases familiar to behavioural economists — framing biases, status quo biases, loss aversion biases, and overconfidence (pp. 22-29). Government, they argued, can be a “choice architect” and use cheap and easy strategies — such as default rules and product placement — to make it easier for people to make the most rational choices.
Although from a more deontic and aretaic than cost/benefit perspective, like Sunstein and Thaler, I defend a brand of state paternalism that does not amount to a wholesale invitation to a “nanny state” in which government enacts oppressive laws so people cannot harm themselves. Toward addressing concerns about unjust and excessive paternalism, I urge that we think of information and physical privacies as among the “foundational” human goods. The foundational goods are the sorts of resources liberal philosophers and political theorists since John Rawls have often referred to as “primary goods.” Rawls’s own long list of primary goods in Political Liberalism (1993, p. 181) featured freedom of movement and free choice of occupation against a background of diverse opportunities; powers and prerogatives of office and positions of responsibility; income and wealth; and the social bases of self-respect..
My view is that for the sake of foundational human goods, liberal societies properly constrain both government coercion and individual choice, including the choice to forgo privacies we will typically need for a lifetime of self-respect, trusting relationships, positions of responsibility, and other forms of flourishing. If privacy were just a routine good, like hot bagels and fast cars, the case for coercing it would not have particular weight. But philosophers continue to maintain that privacy is of special value. Privacy, they say, is key to personality development and moral autonomy; personal honor, dignity, identity, creativity, and innovation; psychological well-being, intimacy, and family; civic association, religious expression, and ideals of a limited, tolerant government.
I pose the specter of government turning privacies into duties — especially, duties of self-care. Typical people want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions. But there is privacy protection people do not want.
California’s so-called “Racial Privacy Initiative,” Proposition 54, was unpopular with voters, who rejected it in a 2003 referendum to decide whether to amend the state constitution to prohibit collecting information about race. The Don’t Ask-Don’t Tell law that until this year required gay and lesbian military service members to keep secret their sexual orientations or face discharge were exceedingly unpopular with the LGBT community and its allies. The federal Children’s Online Privacy Protection Act of 2000 (COPPA) is unpopular with sixth graders eager to get onto Facebook. But COPPA’s limitation of children under 13 is privacy paternalism most of us are happy enough to live with.
Readers unconvinced by my defense of legal paternalism, may find more convincing my call —citing Judeo-Christian and early American sources -- for a reinvigoration of reserve and discretion as personal ethical values.
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