“While people are very interested in records – the warmest, the hottest, the driest, the wettest – what really matters…
“Although it may be, in a social sense, acceptable to comment online about one’s sex life and drinking habits and drug use and show photographs of oneself with weird hairstyles or skimpy clothing, those things can come back to haunt one…Had some of my behaviour from that time of my life [college] been captured on social media, I wouldn’t be a lawyer today.” Anita L. Allen
Anita L. Allen is an expert on privacy law, bioethics, and contemporary values. She is a graduate of Harvard Law School and received her PhD in Philosophy from the University of Michigan. At the University of Pennsylvania she is the Vice Provost for Faculty and Professor of Law and Philosophy. In 2010 she was appointed by President Obama to the Presidential Commission for the Study of Bioethical Issues. Her books include Unpopular Privacy: What Must We Hide; Everyday Ethics, and Privacy Law and Society. Interview by New Philosopher’s editor Zan Boag.
Zan Boag: You’ve been writing on and talking about privacy since the 1980s. A lot has changed since then.
Anita Allen: When I first began to think and write about privacy, I was mostly focused on two sets of issues. First, on the issues around personal autonomy, and freedom from governmental and other outside interference… around things like health and reproduction and sexuality; and second, I was really concerned about the privacy of the home – the ability of people to isolate themselves, by choice, in a domestic sphere which was free from traditional oppressions and hierarchies, but open to opportunities for genuine self-engagement and solitude.
Is it possible to have privacy in the home?
I do think that it is becoming increasingly problematic and some of the talks and lectures that I have given, and will give, delve deeply into issues around what I call the declining significance of the home.
Technological changes over the past few decades have led to what you term ‘oversharing’ on social media, when people reveal intimate details of their life. Why is this a problem?
I’m a user of social media and I think it is really important that people take advantage of new technologies to enhance their professional and personal lives, but I do think that we see more and more of a disturbing phenomenon of what I and others call ‘oversharing’. For me, what’s at stake with oversharing is the loss of a very old-fashioned virtue called ‘reserve’. There are ethical reasons why people should be reserved that are not typically utilitarian, and there’s a complete loss in some segments of our culture of a sense of why it may not be a good thing to say everything that is happening, everything that you’re thinking, everything that you’re wondering, everything that occurs. There’s a virtue to sometimes holding back. It goes to dignity and self-respect, and implicates utilitarian values of good reputation and open futures. I’m very concerned about oversharing, which is a practical concern, but also a moral concern.
You mention that oversharing shuts down opportunities for a lifetime of flourishing, and you compare oversharing personal information to selling oneself into slavery.
Well, some people say that privacy is an optional good – you can take it or leave it. You can choose to keep yourself and your information concealed or you can share it and that’s the end of the story. But I believe that just as we have constraints on giving away our freedom generally – which are represented by the modern restraints on self-slavery, selling yourself into slavery, I think there are still grounds for thinking that we need to be mindful that if we give up our privacy, we are giving other people major control over our lives in ways which are not disanalagous to selling oneself into slavery. In the last five years, I’ve often emphasised that in the United States, in the very first right to privacy lawsuit that resulted in a positive finding of the common law right to privacy – the judge explicitly compared having privacy taken away to enslavement by a merciless master. (The case is called Pavesich v. New England Life Insurance Company.) We must consider the possibility that taking away privacy is akin to enslavement and giving it away akin to self-enslavement.
Why do we have a duty to protect our own privacy?
If you are comfortable with the philosophical notion that we have obligations to ourselves or respecting ourselves, you can then ask: “What are those duties”? Could they include a duty to protect our own privacy? Well, giving away our privacy can harm us, just as stabbing a knife in our leg can harm us, or drinking too much alcohol can harm us. It is not so difficult, upon reflection, to understand that losing one’s privacy can be harmful. One can, consequently, have obligations to make efforts to avoid this kind of harm. I think that’s something that is overlooked: the seriousness of the ways in which we can damage ourselves by being too free, too careless with our privacy and private choices.
In your recent keynote speech at the Hypatia conference, you discussed Arne Svenson’s photo series ‘Neighbors’. What is your view on this case?
This case is fascinating to me. My astonishment was the courts rather quickly concluded that an artist should be entitled to photograph through his window into other people’s windows, and is entitled then to exhibit the photographs that he takes. The rationale for that seems to be that privacy is less important than values of free speech and freedom of expression that are reflected in the artistic enterprise. So the question is: Why is art more important than privacy? Don’t people still have expectations that are legitimate in the privacy of what goes on in their home? Don’t people have the right to not completely shut their curtains; to experience fresh air and light; to not have people turn their lives into art for public consumption? I think that this is a stunning example of how the home has declined in significance, and of the proposition that while the home may be shrouded in notions of privacy and property, it is not the case – the courts decided – that whatever goes on inside the home is sacred and cannot be appropriated by others for commercial or artistic purposes.
American philosopher Judith Thomson argues that leaving a window open can be construed as ‘waiving’ the right not to be overheard. What do you think of this?
This is an argument that a lot of people make: if you don’t want to be seen and photographed in your home then you have a responsibility to close the windows, close the blinds, and pull down the shades. You have no grounds for complaint if people see you, or hear you for that matter, when you have had the power to not be heard or seen. But people should not be forced to live inside hermetically sealed boxes; it is not their fault if other people use technology – such as telephoto lenses – voyeuristically to penetrate what has been traditionally quite protected and private spheres. Just because technology changes it does not mean that all the values and expectations around homes need suddenly to be deemed to have changed. Technology shouldn’t drive culture, culture should be able to drive technology.
The increase in the amount of surveillance cameras has made it all the more difficult…
Just because we can surveil people as they walk down the street, does not mean that we should. The fact that we’re under surveillance as we drive or walk the streets strengthens the argument that there has to be some place where we have our privacy, and if it is not our homes, then where? Where do we go to be more relaxed and free in our conversation and our behaviour without having to worry about other people engaging in acts of surveillance – spying, peeping, leering, and the like? In the workplace our computer activity is monitored, our physical activity is monitored by cameras mounted on walls across our cities. Can’t there be at least one place where we can go and not have these problems follow us? And the answer is that there ought to be, but there really isn’t. The home is not that place.
What concerns should people have when it comes to the spread of surveillance cameras?
I think the enthusiasm for cameras means that even when there’s not such a strong argument for the camera, there’s a sense that law enforcement ought to have them, just in case. There’s always the argument, “Well, if you’re not doing anything wrong, then you have nothing to fear”. But it isn’t just the things that are wrong that we don’t want people to inspect – we don’t want people to inspect us at all. Online, people who are overweight become objects of ridicule; people who inadvertently pick their noses at the wrong moment can become objects of ridicule; people who have an unusual gait or an unusual face can become objects of ridicule. It is not just doing something wrong that attracts the public gaze, it is doing anything that makes us look a little bit different, or something that’s impolite or lacking in perfect etiquette. It all can end up on social media. We all have these things to be concerned about, whether or not we’re committing crimes. And that’s why the growing popularity of these closed circuit television cameras is of concern. It makes us all feel – with justification – disquieted. And our lives are less comfortable. And our anxiety levels are higher, because we know that we don’t have a choice of relaxation, whether on the streets or in the home. Wasn’t it nice 20 years ago when you could take a walk and knew that you weren’t going to be seen on a camera. It was a nice thing.
You talk of privacy using terms such as dignity, autonomy, civility and intimacy. Is that how you see privacy?
Privacy is about dignity, it is about modesty and reserve, and it is very much a matter of protecting ourselves from harm – in a utilitarian sense – harm of lost reputation and harm of lost opportunities for our future. For me, they are all important issues that help to explain why privacy is important.
Whether it is the privacy we ought to have as we walk along the streets, or the privacy we ought to have when we engage in rest and intimacies in our own home.
What sort of disclosures are people currently making that are most likely to affect their future opportunities?
Although it may be, in a social sense, acceptable to comment online about one’s sex life and drinking habits and drug use and show photographs of oneself with weird hairstyles or skimpy clothing, those things can come back to haunt one. We need to preserve open futures. For example, when I was a 21-year-old graduate student in philosophy, I had no idea that someday I would want to be a lawyer. If you’d asked me, I would have said: “Absolutely I would never consider being a lawyer, I’m not suited to being a lawyer, I’m not interested in the law, I want to be a poet and a philosopher, end of story.” I would have sworn to the end of the earth that my future was going to be in philosophy or literature. Maybe dance. Had some of my behaviour from that time of my life been captured on social media, I wouldn’t be a lawyer today. We don’t have perfect knowledge of our future selves. If we are captured doing things that we think are fun – edgy fun – we may have a grave price to pay. One can hope that things will change in the future, so that extreme or inappropriate behaviour will not be held against us. But we can’t count on that development to protect us from a future in which we may not get what we want – a partner that we might want or a job that we might want, a career we might want – because of our behaviour in the past. Maybe it is a shame, but it is a fact and we should be a bit more prudent.
From the ‘property’ edition of New Philosopher. Click here to support the magazine by subscribing today.