What Place for Privacy in a Digital World?

C. S. Lewis, serene at his desk...

Posted by Keith Tidman

When Albert Camus offered this soothing advice in the first half of the twentieth century, ‘Opt for privacy. . . . You need to breathe. And you need to be’, life was still uncomplicated by digital technology. Since then, we have become just so many cogwheels in the global machinery that makes up the ‘Internet of things’ — the multifarious devices that simultaneously empower us and make us vulnerable.

We are alternately thrilled with the power that these devices shower on us — providing an interactive window onto the world, and giving us voice — even as we are dismayed to see our personal information scooped up, stowed, scrutinised for nuggets, reassembled, duplicated, and given up to others. That we may not see this too, that our lives are shared without our being aware, without our freely choosing, and without our being able to prevent their commodification and monetisation only makes it much worse.

Can a human right to privacy, assumed by Camus, still fit within this digitised reality?

Louis Brandeis, a former justice on the U.S. Supreme Court, defined the ‘right to be left alone’ as the ‘most comprehensive of rights, and the right most prized by civilised people’. But that was proffered some ninety years ago. If individuals and societies still value that principle, then today they are challenged to figure out how to balance the intrusively ubiquitous connectivity of digital technology, and the sanctity of personal information implicit in the ‘right to be left alone’. That is, the fundamental human right articulated by the UN’s 1948 Universal Declaration of Human Rights:

‘No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence’.

It’s safe to assume that we’re not about to scrap our digital devices and nostalgically return to analog lives. To the contrary, inevitable shifts in society will require more dependence on increasingly sophisticated digital technology for a widening range of purposes. Participation in civic life will call for more and different devices, and greater vacuuming and moving around of information. Whether the latter will translate into further loss of the human right to privacy, as is risked, or that society manages change in order to preserve or even recover lost personal privacy, the draft of that narrative is still being written.

However, it’s important to acknowledge that intervention — by policymakers, regulators, technologists, sociologists, cultural anthropologists, and ethicists, among others — may coalesce to avoid the erosion of personal privacy taking a straight upward trajectory. Urgency, and a commitment to avoid and even reverse further erosion, will be key.

Some contemporary philosophers have argued that claims to a human right to privacy are redundant, for various reasons. An example is when privacy is presumed embedded in other human rights, such as personal property — distinguished from property held in common — and protection of our personal being. But this seems dubious; in fact, one might flip the argument on its head — that is, our founding other rights on the right of privacy, the latter being more fundamentally based in human dignity and moral values. It’s a more nuanced, ethics-based position that makes the one-dimensional assertion that ‘If you don’t have anything to hide, you have nothing to fear’ all the more specious.

Furthermore, without a right to privacy being carved out in concrete terms, such as codified in law and constitutions, it may simply get ignored, rendering it non-defendable. For all that, we value privacy, and with it to prevent other people’s intrusion and meddling in our lives. We cling to the notion of what has been dubbed the ‘inviolate personality’ — the quintessence of being a person. In endorsing this belief in individual interests, one is subscribing to Noam Chomsky’s caution that ‘It’s dangerous when people are willing to give up their privacy’. To Chomsky’s point, the informed, ‘willing’ acceptance of social media’s mining and monetising of our personal data provides a contrast.

One parallel factor is the push-pull between what may become normalised governmental access to our personal information and individuals’ assertion of confidentiality and the ‘reasonable expectation’ of privacy. The style of government — from liberal democracies to authoritarianism — matters to government access to personal information: whether for benign use or malign abuse. ‘In good conscience’ is a reasonable guiding principle in establishing the what, when, and how of government access. And in turn, it matters to a fundamental human right to privacy. Meantime, governments may see a need for tools to combat crime and terrorism, allowing surveillance and intelligence gathering through wiretaps and Internet monitoring.

Two and a half centuries ago, Benjamin Franklin foreshadowed this tension between the liberty implied in personal privacy and the safety implied in government’s interest in self-protection. He cautioned: 

‘Those who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’. 

Yet, however amorphous these contrary claims to rights might be, as a practical matter society has to resolve the risk-benefit equation and choose how to play its hand. What we conclude is the best solution will likely keep shifting, based on norms and emerging technology.

And the notions of a human right to privacy differ as markedly among cultures as they do among individuals. The definition of privacy and its value may differ both among and within cultures. It would perhaps prove unsurprising if a culture situated in Asia, a culture situated in Africa, a culture situated in Europe, and a culture situated in South or Central America were to frame personal privacy rights differently. But only insofar as both the burgeoning of digital technology and the nature of government influence the privacy-rights landscape.

The reflex may be to anticipate that privacy and human rights will take a straight, if thorny, path. The relentless and quickening emergence of digital technologies drives this impulse. The British writer and philosopher C. S. Lewis provides social context for this impulse, saying:

‘We live … in a world starved for solitude, silence, and private.’

Despite the invasion of people’s privacy, by white-hatted parties (with benign intent) and black-hatted parties (with malign intent), I believe our record thus far represents only an embryonic, inelegant attempt to explore — with perfunctory legal, regulatory, or principled restraint — the rich utility of digital technology.

Nonetheless, if we are to steer clear of the potentially unbridled erosion of privacy rights — to uphold the human right to privacy, however measured — then it will require repeatedly revisiting what one might call the ‘digital social contract’ the community adopts: and resolving the contradiction behind being both ‘citizen-creators’ and ‘citizen-users’ of digital technologies.