Rethinking Privacy and Freedom of Expression in the Digital Era: An Interview with Mark Andrejevic

Mark Andrejevic, Professor of Media Studies at the Pomona College in Claremont, California, is a distinguished critical theorist exploring issues around surveillance from pop culture to the logic of automated, predictive surveillance practices. In an interview with WPCC issue co-editor Pinelopi Troullinou, Andrejevic responds to pressing questions emanating from the surveillant society looking to shift the conversation to concepts of data holders’ accountability. He insists on the need to retain awareness of power relations in a data driven society highlighting the emerging challenge, ‘to provide ways of understanding the long and short term consequences of data driven social sorting’. Within the context of Snowden’s revelations and policy responses worldwide he recommends a shift of focus from discourses surrounding ‘pre-emption’ to those of ‘prevention’ also questioning the notion that citizens might only need to be concerned, ‘if we are doing something “wrong”’ as this is dependent on a utopian notion of the state and commercial processes, ‘that have been purged of any forms of discrimination’. He warns of multiple concerns of misuse of data in a context where ‘a total surveillance society looks all but inevitable’. However, the academy may be in a unique position to provide ways of reframing the terms of discussions over privacy and surveillance via the analysis of ‘the long and short term consequences of data driven social sorting (and its automation)’ and in particular of algorithmic accountability

Privacy in Public and the contextual conditions of agency

Current technology and surveillance practices make behaviors traceable to persons in unprecedented ways. This causes a loss of anonymity and of many privacy measures relied on in the past. These de facto privacy losses are by many seen as problematic for individual psychology, intimate relations and democratic practices such as free speech and free assembly. I share most of these concerns but propose that an even more fundamental problem might be that our very ability to act as autonomous and purposive agents relies on some degree of privacy, perhaps particularly as we act in public and semi-public spaces. I suggest that basic issues concerning action choices have been left largely unexplored, due to a series of problematic theoretical assumptions at the heart of privacy debates. One such assumption has to do with the influential conceptualization of privacy as pertaining to personal intimate facts belonging to a private sphere as opposed to a public sphere of public facts. As Helen Nissenbaum has pointed out, the notion of privacy in public sounds almost like an oxymoron given this traditional private-public dichotomy. I discuss her important attempt to defend privacy in public through her concept of ‘contextual integrity.’ Context is crucial, but Nissenbaum’s descriptive notion of existing norms seems to fall short of a solution. I here agree with Joel Reidenberg’s recent worries regarding any approach that relies on ‘reasonable expectations’ . The problem is that in many current contexts we have no such expectations. Our contexts have already lost their integrity, so to speak. By way of a functional and more biologically inspired account, I analyze the relational and contextual dynamics of both privacy needs and harms. Through an understanding of action choice as situated and options and capabilities as relational, a more consequence-oriented notion of privacy begins to appear. I suggest that privacy needs, harms and protections are relational. Privacy might have less to do with seclusion and absolute transactional control than hitherto thought. It might instead hinge on capacities to limit the social consequences of our actions through knowing and shaping our perceptible agency and social contexts of action. To act with intent we generally need the ability to conceal during exposure. If this analysis is correct then relational privacy is an important condition for autonomic purposive and responsible agency—particularly in public space. Overall, this chapter offers a first stab at a reconceptualization of our privacy needs as relational to contexts of action. In terms of ‘rights to privacy’ this means that we should expand our view from the regulation and protection of the information of individuals to questions of the kind of contexts we are creating. I am here particularly interested in what I call ‘unbounded contexts’, i.e. cases of context collapses, hidden audiences and even unknowable future agents

The New Privacy

This article reviews Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy John Gilliom (2001). In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an age of governmental largess, a new property right in governmental benefits had to be recognized. He called this form of property the new property. In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy, by John Gilliom, an associate professor of political science at Ohio State University, demonstrates both the tenuousness of welfare rights today and the costs that this system imposes on individual autonomy. In Overseers of the Poor, Gilliom uses his case study of welfare recipients as the occasion for an attack on classic notions of privacy rights. Gilliom finds that welfare clients do not engage in privacy talk - indeed, he finds the concept to be devoid of value for the welfare recipients. Here, another comparison can be made with Reich\u27s new property. Reich explicitly tied his idea of a property right in government entitlements to privacy. He felt that the new property was needed to protect privacy and, in particular, individual autonomy. Reich\u27s notion of privacy reaches back to a classic concept of privacy, one that we term the old privacy. It is precisely this classic idea that Gilliom finds welfare recipients to have rejected. Theoretical work inside and outside of the legal academy has pointed, however, to a new privacy. The new privacy is centered around Fair Information Practices ( FIPs ) and is intended to prevent threats to autonomy. The idea of privacy centered on FIPs is based not on a property interest in one\u27s information, but the idea that processors of personal data should be obliged to follow certain standards. If, as we will see, classic notions of privacy are not of much use in the welfare state, the new privacy may be. This review begins by examining Gilliam\u27s methodology and findings. It credits the insights of his look at the inner world of welfare recipients, but finds that he appears to ignore the need for income limits on aid recipients and the concomitant need for at least some personal information to enforce these limits. It also criticizes his failure to explore an interaction of an ethics of care among welfare recipients with possible use of retooled privacy rights or interests. In the second part of this review, The authors consider the extent to which theoretical work inside and outside of the legal academy points to a new privacy and discuss how Gilliam\u27s empirical research provides support for that scholarship. They also evaluate the extent to which the new privacy, centered on PIPs, can prevent the threats to personal autonomy so poignantly identified by Gilliom