Here’s my review of Helen Nissenbaum’s Privacy in Context: ‘Privacy and the Public/Private Dichotomy: A Review Essay of Helen Nissenbaum’s Privacy in Context‘, published in Thesis Eleven (107.1) in 2011.
Abstract: This essay reviews Helen Nissenbaum’s Privacy in Context (2010), focusing in particular on her dismissal of the public/private dichotomy. Taking issue with the problem she constructs of ‘privacy in public’, her unitary reading of the dichotomy and ‘socializing’ of the value of privacy, or what she calls ‘contextual integrity’, and her treatment of technology in the abstract, the essay then goes on to argue that the framework she proposes is incapable of addressing the contemporary incursion of market logic into every other aspect of social and political life in the digital economy, and therefore of protecting privacy at all. The essay concludes with an insistence on the need to approach contextual privacy problems from a political economic perspective and with a political conception of privacy, and for that to be founded upon a protean appreciation of the public/private dichotomy.
“The final, definitive version of this paper has been published in Thesis Eleven, Vol 107/Issue 1, November/2011 by SAGE Publications Ltd (http://online.sagepub.com), All rights reserved. © [Simon Dawes]”
For those who have access and would like to read this ‘Version of Scholarly Record’, go here: http://the.sagepub.com/content/107/1/115.abstract
For everyone else, here you go…(this is the version that was accepted, prior to proofing)
Review Essay: Privacy and the Public/Private Dichotomy
Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford: Stanford University Press, 2010)
Abstract: This essay reviews Helen Nissenbaum’s Privacy in Context (2010), focusing in particular on her dismissal of the public/private dichotomy. Taking issue with the problem she constructs of ‘privacy in public’, her unitary reading of the dichotomy and ‘socialising’ of the value of privacy or what she calls ‘contextual integrity’, and her treatment of technology in the abstract, the essay then goes on to argue that the framework she proposes is incapable of addressing the contemporary incursion of market logic into every other aspect of social and political life in the digital economy, and therefore of protecting privacy at all. The essay concludes with an insistence on the need to approach contextual privacy problems from a political economic perspective and with a political conception of privacy, and for that to be founded upon a protean appreciation of the public/private dichotomy.
Keywords: autonomy, neoliberalism, privacy, public/private dichotomy, public sphere, technology
Privacy has often been a residual category in any recourse to the public/private dichotomy. Whether the distinction is made between state and market, political community and state/market, state/market and the family, or sociability and backstage life, the tendency in social and political theory (with notable exceptions) has been to focus on the demarcation of what counts as public. In many of these accounts, a preoccupation has been with the erosion or ‘colonisation’ (Bauman, 2000) of the public by private processes, where the privatisation of public services is just one aspect of this. Here there has traditionally been a concern with the blurring of the distinction between two realms that had previously been clearly distinguished, or more recently with the shifting of the always mobile boundary between them. Many accounts have focused on the relation between the two realms, with feminist approaches in particular critiquing the exclusionary potential of the boundary, whereas others emphasise the interdependence and mutual constitutiveness of the two realms. Where the interest is in demarcating the private, it is often because of a concern with intrusions from the public, however conceived. These intrusions are often construed in the extent to which they affect the right to exercise control or restrict access, either in terms of personal information, decisional autonomy or an abstract or physical notion of space (Rössler, 2005). While some see the value of privacy in a respect for the individual, in its importance for the public good or as a shelter from the individualism of the market, others have argued against the individualism of privacy and the harm it does to the public good, or against its potential to conceal the harm done to women in private. Recent technological advancements and their application in the accumulation, processing and dissemination of information have been cause for a renewed concern, not only for privacy rights, but also for a reappraisal of the importance or value of privacy, and for a fundamental rethink about the very meaning of the term.
While the general appreciation of the distinction between public and private can be narrowed down to two kinds of imagery (Weintraub, 1997: 5) – the distinction between what is hidden and what is accessible (visibility) and that between what is individual and what is collective, or between what is part and what is whole (divisibility) – jurisprudence on matters related to privacy has tended to focus uniquely on questions of visibility. The distinction between what should be visible to all and what should be invisible to others is then equated rather bluntly in legal discourse with a distinction between public and private information. This is problematic, not only because its dependency upon the dichotomy is founded upon a simplistic reading which assumes the possibility of splitting information into categories of public and private, but also because it understands privacy uniquely in terms of visibility, ignoring the divisibility dimension and the relation between the two realms, as well as any Arendtian notion of the importance of privacy and the private realm for the public good. Further, in the case of US jurisprudence, privacy rights have been interpreted within the context of the Constitution as the protection of the individual from the state, both individualising privacy rights (the very opposite of the divisibility dimension) and leaving no room in this public/private binary for the protection of individuals and the public from corporations and the market.
Referring extensively to US legal scholarship on privacy and engaging only fleetingly with social and political theory, Helen Nissenbaum contends with the diverse set of technologically-mediated activities that ‘cause anxiety in the name of privacy’. The book is split into three parts, dealing in turn with recent technological developments, the various theoretical and legal approaches to privacy, and an outline of the contextual integrity framework in theory and practice. Nissenbaum splits her survey of technological developments into three overlapping categories, focusing on the increased capacities to track and monitor, to aggregate and analyse, and to disseminate and publish. She explains the incremental advances in supporting technologies, such as information capture devices, digital encoding algorithms, network transmission mechanisms and information storage capacities, and offers illustrative examples of developments in the use and practices of CCTV, online monitoring, RFID (Radio Frequency Identification) technology, omnibus information providers and social networking sites.
Rejecting theories of privacy which rest on control or access, or on categorising certain types of information as deserving of special consideration as something ‘private’, and rejecting normative theories of privacy more generally, Nissenbaum interprets the meaning of privacy in relation to the appropriate flow of personal information, where this flow is governed by norms specific to distinct social contexts. A consideration of appropriate flow (where control and access are but two ways in which flow can be governed (Nissenbaum, 2010: 147)) helps explain the sort of phenomena (such as the posting on social networking sites of all sorts of personal information) where control and access are negatively but voluntarily affected and which are usually interpreted as evidence of an increasing disregard for privacy. The right to privacy is reinterpreted as the right to have our expectations about the flow of personal information met (ibid.: 231), not the right to exercise control or restrict access. If a right to privacy is actually a right to context-appropriate flows and not to exercise control or restrict access, then there is no paradox about voluntarily sharing information through social media and still caring about privacy (ibid.: 187). When new technological systems provoke anxieties ‘in the name of privacy’, she argues, it is actually because they violate the contextual integrity of these norm-governed flows. According to this interpretation, technologies that disregard entrenched norms are even more problematic than those that diminish control or increase access, because they threaten to disrupt the ‘very fabric of social life’ (ibid.: 3). The framework she develops aims to predict when new technologies will be seen as threats to privacy, to evaluate them in terms of ‘values, ends and purposes’, and to be used as a standard against which legislation can be tested (ibid.: 236).
The framework of contextual integrity is outlined as a way of predicting people’s reactions to newly introduced systems or practices. While such a system or practice that reduced control or access would normally give rise to calls from some of an invasion of privacy, the embracing of that same technology by others would either weaken this call, or lead to the interpretation that privacy is just not that important anymore. A consideration of the integrity of this context would, however, take into account the effect on control and access as part of a package of what Nissenbaum refers to as ‘values, ends and purposes’, where the effect on other values such as security, ends such as efficiency, and purposes such as communication, would also be taken into account. To this framework of contextual integrity, Nissenbaum adds an augmented approach, which does not preclude challenges to these context-appropriate norms or internal ‘values, ends and purposes’. The augmented approach to contextual integrity compares entrenched normative practices against ‘novel practices resulting from newly deployed socio-technical devices and systems’ on the basis of how effective each is at achieving relevant contextual values (ibid.: 166). A violation of contextual integrity would be identified if the ‘values, ends and purposes’ argued to be inherent to a particular context were deemed to be negatively affected. So if a new technologically-mediated practice led to less control over one’s personal information, and increased the access of others to that information, the integrity of the context would not necessarily have been violated if control and access were not particularly important features of the context, or if the new practice was more effective or efficient at achieving values that were. If the new practice was shown to harm any of the values, ends or purposes specific to the context, however, a violation of contextual integrity would have occurred. This is meant to tackle head on not only the approach to privacy that focuses on control and access, but that which poses the problem of balancing privacy with other values (notably security). Seeing privacy as always-already in relation to other values moves us away from having to negotiate a trade-off between values, where privacy may have to be sacrificed to make way for a more pressing concern. If one accepts privacy as a right to context-appropriate flows, then these norm-governed flows will already have been calibrated with the entire array of context-based ‘values, ends and purposes’, such as safety and control (ibid.: 188). An example cited is the increased scrutiny at airports, where travellers have to identify themselves numerous times, have their bodies patted down by security staff, sometimes after the removal of certain items of clothing, and have their luggage X-rayed and sometimes rooted through. In response to a nine-country survey on people’s views on surveillance to which Nissenbaum refers, only 2-18% felt that their privacy was not respected by airport officials (ibid.: 188-189). Nissenbaum suggests that this is because what we understand by ‘privacy’ is actually tempered in the specific context of air travel by our fear of terrorism and disapproval of drug smuggling. We would interpret this kind of treatment in most other contexts, however, as an invasion of our privacy, because it would in most circumstances violate our expectations or contextual norms.
The ostensible focus on context, however, rests upon a fundamental dismissal of the public/private dichotomy as a foundational basis for normative conceptions of privacy (ibid.: 116). Her justification for this dismissal is the speed of recent technological developments, which have led to an increased capacity to survey in public, to aggregate data from numerous public and private records, and to mediated interactions on social networking sites which problematise categorisation along public-private lines at a rate which has ‘produced a schism between experience and expectation’ (ibid.: 231). Technological developments in the aggregation and dissemination of information have radically altered flows of information, and increased the amount of information about a ‘data subject’ that can be accessed, as well as the number of people who can access that information. Nissenbaum is right to criticise those who seek to limit privacy concerns to ‘private information’, because it is not the nature of the information itself (whether highly personal or not) that is necessarily the issue, but the potential to increase the importance of information (or for data to become knowledge). It could be impersonal information already available in public records or otherwise published, but if information is aggregated from numerous sources to create a deep archive of information about data subjects, and then made available to a far greater number of people than before, this could indeed cause anxieties ‘in the name of privacy’. A focus on arbitrary distinctions between private and public information, as often happens in court proceedings, would miss the significance of these changes and not see this as a threat to privacy, whereas approaching this within the framework of contextual integrity would mean flagging up this kind of new practice as a violation. Because all information flows are norm-governed, whether in our homes or in a park, contextual integrity can be maintained or violated in any context (ibid.: 189), so transcending the reductive distinction between public and private places. This radical altering of flows of information, she argues, reveals faultlines not before considered significant (ibid.: 119), as well as the inconsistency of boundaries and the fuzziness of distinctions (ibid.: 101). It is not the social constructedness or variability of the dichotomy which she sees as problematic (ibid.: 121), however, but the assumption that it continues to be possible to divide the world into public and private in the face of socio-technical systems that so greatly expand the power of information (ibid.: 126). She argues that contextual integrity displaces the public/private framework because it resolves, for instance, the ‘problem of privacy in public’, but one could equally resolve what is actually the problem of legal interpretations of ‘privacy problems’ in ‘public places’ by criticising the reductive reading of the dichotomy, and prescribing a more protean and mobile appreciation of the distinction.
Nisenbaum’s technologically reductive reading of the flaws exposed in the dichotomy ignores all the other (economic, social, cultural, political) processes that have contributed to what has been interpreted as a blurring of realms or shifting of boundaries, and her unitary interpretation of the dichotomy is as simplistic as her dismissal of that interpretation is belated: Arendt long ago made the claim that the Aristotelian distinction between public and private was no longer clear (Arendt, 2003: 188). Further, her focus on technology ignores the deep connections between new technologies and late capitalism in post-industrial societies, and the complex interdependence and imbrication of public, market-driven and gift economy elements in the digital economy (Terranova, 2003; Marginson, 2009). The contextual approach, however, could instead be used to investigate the various ways in which these elements are configured in the ‘never so complete’ transformation of privatisation (Marginson, 2006: 46), and appropriated as a development upon the increasing trend to emphasise the shifting boundary between protean realms of public and private, and the mobile relations and fluid hybridisations between them (Sheller and Urry, 2003), rather than demonstrating the redundancy of the boundary or a blurring of the two realms, and consequently ignoring the significance and complexity of capitalism in the digital economy that a more political economy approach would bring out.
In the context of her discussion of RFID technology, we can see more clearly the problems with her approach. Although she seems in favour of certain requirements – that people be informed of the presence of RFIDs and how they are used, that they have the right to remove, deactivate or destroy them, and that they know what information is stored in the chip and associated databases (Nissenbaum, 2010: 194) – her determination to consider these in terms of contextual integrity highlights the problems with her neutering focus on contexts and dismissal of any normative notion of privacy. Nissenbaum considers the context of a commercial marketplace, and suggests that an evaluation within the framework of contextual integrity would require answers to questions about how the new patterns of information flow reconfigure critical aspects of the relationship between ‘consumer’ and ‘merchant’, such as: Does it give unfair advantage to one of the parties? Does the new relationship undermine the contextual values, ends and purposes? Does it result in efficiencies for the merchant, and are they beneficial to the consumer too? Could it lead to a chilling of consumer behaviour? (ibid.). The problem with this, however, is that it reduces the subject to a ‘consumer’ and embeds them within the context of the commercial marketplace, even when the technology is carried away from the shop and into other contexts. Although this problem could be addressed to an extent by her idea of overlapping contexts or that of nesting (contexts within contexts), it cannot be resolved, because we cannot assume neutrality between contexts, or even a simple hierarchical or layered relationship between them. The construction of the subject as a ‘consumer’ ignores their other roles but, most importantly, that of ‘citizen’ (or, at least, their public or political role), which it would be problematic to simply construct as one of many other equivalent roles. More fundamentally, this takes the context of the commercial marketplace out of its (wider and more abstract) context in the public/private dichotomy, and fails to appreciate the importance of the value of privacy for something more fundamental than our roles as consumers.
Instead of going as far as to dispense with the dichotomy and a normative notion of privacy, the real culprit Nissenbaum should take issue with is the reductive reading of the dichotomy in the legal discourse to which she largely refers, and, in particular, the reading in US jurisprudence that sees privacy as a protection of the individual from the state, and not from the market. As Nissenbaum notes, many protections of privacy in the US have come indirectly from amendments to the Constitution and the Bill of Rights, but this has tended to be in terms of protecting citizens from the government and not from corporations (ibid.: 92-93). Because the landmark Privacy Act 1974 failed to take into account calls for limits on the private sector to be brought within its scope, the laws restricting the government’s use of social security numbers, for example, does not apply to corporations, so that there is consequently a de facto national identity system in the hands of private corporations (Solove, 2008: 122). Although Nissenbaum fleetingly accepts that further amendments should be made to rectify this and to account for the contemporary power of corporations (Nissenbaum, 2010: 114), her proposed framework ignores this power and its difference from state power, and although she refers to Lawrence Lessig’s call for a translation of constitutional principles in light of altered material conditions, so altering rules to preserve a principle (ibid.: 118), her abandonment of a normative notion of privacy means that she’s never very clear on what this principle is.
The regulation of privacy in the US is also problematic. Because there is no explicit right to privacy in the US Constitution, distinct bodies of law have been created for distinct zones. Although this is generally disfavoured by privacy advocates, it is more compatible with an approach that emphasises context, and Nissenbaum favours the US’s sectoral approach to privacy rather than the EU’s omnibus approach, arguing that only one omnibus approach is necessary – the right to contextual integrity – ‘from which the appropriate context-relative rights would be derived on a sector-by-sector basis’ (ibid.: 238). One could debate whether it would be more impractical and less realisable to append the contextual integrity standard as an omnibus criterion to the US system (historically intolerant to such a generalisation) or to the EU approach (which would only need to qualify its right to privacy), but the important thing to note is Nissenbaum’s preference for the approach whose contextual nature has gone hand in hand with a failure to curb corporate activities because of an overly reductive reading of the public/private dichotomy. This same approach enforces privacy law through individual law suits, rather than through a system like the EU’s of regulatory privacy agencies. But problems involving vulnerability harms and power imbalances are difficult to remedy at the individual level (Solove, 2008: 186), and this places the onus on affected individuals to prove that a violation has occurred, rather than on the powerful corporations or state departments carrying out the potentially problematic practices to demonstrate the lengths to which they’ve gone to prevent such violations occurring (Rössler, 2005: 125), and which consequently individualises the concept of privacy.
Nissenbaum’s interest is in the technological changes that have occurred and which challenge our notions of privacy, but she ignores the links between technology and capitalism, and pays scant attention to the wider, more profound and insidious changes, such as the increasing power of corporations and the spread of neoliberal logic from the market to other areas of life. A closer analysis of context and an appreciation of information flows certainly help understand how the use of new technologies affects privacy, but amending the Constitution to account for technological change or even the power of corporations, while certainly necessary, would not account for underlying developments, or clarify the importance of privacy. As Arendt noted, even Thomas Jefferson criticised the US Constitution for having given all power to citizens ‘without giving them the opportunity of being republicans and acting as citizens’ (Baehr xlii). While Daniel Solove, arguably the most significant voice on privacy in US legal circles over the past decade, also encourages a move away from defining ‘privacy’ and towards addressing contextual ‘privacy problems’, he warns against too contextual a focus because it offers insufficient direction to policymaking and legal decisions (Solove, 2008: 48), and although he criticises individualistic conceptions of privacy, he does so in terms of the impracticalities of devising a set of laws around an array of individuals’ idiosyncrasies (ibid.: 70). But the focus on legal practicalities and the ‘social’ rather than ‘political’ interpretation of the divisibility dimension of privacy that he shares with Nissenbaum, ignore a more fundamental reason why such an approach is problematic. Without a normative appreciation of the value of privacy for autonomy and the public good, a more ‘political’ conception of privacy, and a less reductive reading of the relation between public and private realms, an approach to privacy problems through the framework of contextual integrity risks failing to protect privacy at all.
To place their approaches ‘in context’, Nissenbaum’s and Solove’s emphasis on the ‘social’ importance of privacy is a reaction against this tendency in US jurisprudence to individualise privacy, both in how it is conceived (such as the right to be let alone) and in how it is enforced (by retrospective law suits). It is also a reaction against the approach which balances privacy with other values, such as security, which are invariably constructed as social values that often outweigh in court proceedings the individual freedom guaranteed by privacy protection; and Nissenbaum goes further than Solove, as already noted, by insisting upon the imbrication of privacy with other social values, so denying the possibility of weighing social values against one another. But while diagnosing the individualism of US legal discourse on privacy is germane, remedying it by socialising the concept of privacy fails to address the political importance of privacy for securing public autonomy. It also suggests that the authors fail to understand this importance. For example, although Solove includes Rössler among those he criticises for individualising privacy, equating her approach with that which sees privacy in terms of individual choice (Solove, 2008: 70), Rössler’s emphasis (Rössler, 2005) on control over access is concerned not with specific cases of whether an individual (in contrast with other individuals) has such control or not, but the extent to which the public has the capacity for such control, in the context of which individual choice is relatively insignificant. In Nissenbaum’s case, contextual integrity fits, she explains, between the ground (of context) and the heavens (of abstract values), in what she calls ‘the realm of the social’ (Nissenbaum, 2010: 10). This is not an ironic reference to Arendt, who isn’t referenced at all in the book, and whose name appears just once as one of the many ‘inspirations’ behind another writer. It is a naïve conflation of the social and the political that exposes a profound ignorance of the foundations upon which the literature she dismisses is based. Her relativisation of the ‘roles’ played by ‘actors’ within contexts, and her reluctance to treat data subjects as citizens and the ease with which she refers to them as consumers in many situations, also highlight her confusion and conflation of the subject of rights with the subject of choices. With the ‘rise of the social’ (Arendt, 2003), civil society as a mode of neoliberal government (Lazzarato, 2009), and the hybrid character of the digital economy (Terranova, 2003) obfuscating the distinctions between these two subject positions and between public and private realms, the effort to find our bearings within the dichotomy becomes politically ever more important.
One of the significant features of civil society is that it is a space which envelops both the subject of rights and the subject of choices, the differences between which are modified in contemporary civil society by neoliberal governmentality (Lazzarato, 2009). This governmentality operates by enveloping civil society with an economic ontology (McNay, 2009), relegating the juridical discourse of rights to a secondary role of containing the fragmenting effects of normalising governmental techniques, as illustrated by the onus upon individuals to prove a privacy violation retrospectively in US courts. A focus on contexts could support an investigation into how this economic ontology guides the shifting correlations of techniques in various domains (Collier, 2009), raising our awareness of how neoliberalism actually operates in various technologically-mediated environments, but the framework as Nissenbaum proposes it is incapable of recognising the incursion of neoliberal logic into every aspect of everyday life. Although her augmented approach aims to correct the failure of the standard framework to recognise ‘insidious shifts in practice that ultimately gain acceptance as “normal”’ (Nissenbaum, 2010: 160), it does nothing to account for the pervasiveness and dominance of a shift across all contexts, with the focus on the affected objects within distinct contexts failing to address the consequences of an affecting subject permeating multiple contexts.
Furthermore, Nissenbaum’s move away from the ‘right to privacy’ and towards a focus on contextual expectations and appropriateness corresponds with a shift in emphasis in government, from securing the rights of citizens to multiplying the interests of consumers (Lazzarato, 2009: 115-116), producing a new individual that resembles the ‘enterprise man’ of rational calculation and choice (Lazzarato, 2009: 110). The neoliberal assumption of the already-autonomous individual underlies the dismissal of attempts to protect or secure autonomy, ‘an effect of which is a blurring of the boundaries between the public and private realms’ (McNay, 2009: 65), and, in Nissenbaum’s case, a complete discarding of the distinction in her approach to privacy. As the ‘enterprise man’ of neoliberalism is someone who can modulate their behaviour to be sensitive to modifications in the environment according to calculations of an economic kind (Venn, 2010), it is perhaps not enough to say that Facebook and store card users still care about privacy, and to interpret their diminished interest in exercising control and restricting access to personal information in terms of expectations of appropriate flow; because expectations and appropriateness belong to the subject of choices produced by such changes to the environment (whether socio-technical or not), whereas privacy and autonomy belong to the subject of rights that is marginalised by these new processes. By depoliticising and socialising privacy, the approaches of scholars such as Nissenbaum and Solove actually weaken autonomy and act as instruments of the neoliberal reconstitution of the public realm.
While it may be unsatisfactory to refer to a colonisation of private life by public (as in state/market) processes, or of public life by private (as in market) processes, a non-unitary understanding of the public/private dichotomy serves nevertheless as a frame within which to make sense of and evaluate shifts in the organisation of everyday life without losing sight of the historical importance of one area of life for another. Even reference to the term ‘neoliberalism’ risks inaccuracy since it has become such an umbrella term in itself, but an exploration of the contextual details of how contemporary power operates needs to be located within a wider perspective that recognises trends and identifies underlying currents. Identifying this as neoliberalism involves recognising that it is the appropriation of the principles of a market economy as a model for the exercise of political power over every aspect of life (Foucault, 2008: 131), where this affects both public life (as in our potential to lead a political life as citizens within a public sphere) and private life (as in our right to privacy), and that, furthermore, these two realms are connected by the value of privacy for the autonomy needed to live a political life. Approached from a political rather than a social perpsective, affects on privacy via socio-technical systems in post-industrial capitalism can be interpreted as affects on the foundations of public life by neoliberal processes in the digital economy.
Understanding why people feel anxious ‘in the name of privacy’ about a novel practice is not a substitute for understanding why privacy is valued in the first place. While the practicalities of an approach to ‘privacy problems’ and a closer contextual consideration of what is at stake can be advantageous for those seeking to make policy proposals or legal decisions, by socialising privacy and dealing with technology in the abstract, Nissenbaum’s approach loses sight of the value of privacy, and therefore risks protecting something else entirely, and consequently failing to protect our autonomy. But a contextual approach that is informed by the role of technologies within the digital economy, and the link between them and capitalism, and which recognises the political importance of privacy, can also be advantageous for theorists seeking to understand the dynamics of neoliberalism and the increasingly complex relationship between public and private realms. Recognising the spatio-temporal relativity of privacy and the public/private dichotomy should not lead to their dismissal. On the contrary, the protean nature of the public and private realms, the mobility of the boundary between them, and the fluidity of their interrelationship, should be taken into account in any focus upon context, which could reveal changes that problematise the role of privacy and autonomy in contemporary society.
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