Privacy Cultures

We’re on winter break until January 7, 2019. In the meantime, please enjoy our contributor’s take on a book selected by the Washington Post as one of the year’s best. This article was originally published on July 25, 2018.
In “USS Callister,” a much-discussed episode of Black Mirror, a reticent computer programmer collects DNA around his office from discarded objects like lollipops and coffee cups. He uses that DNA to ...

In “USS Callister,” a much-discussed episode of Black Mirror, a reticent computer programmer collects DNA around his office from discarded objects like lollipops and coffee cups. He uses that DNA to create identical, fully sentient digital clones of his coworkers and their family members. Elevated to near omnipotence by cyberspace, he bends them to his will, which mostly involves role-playing episodes of an old TV show modeled on Star Trek. DNA here represents a significant privacy interest: it contains an easily exploitable code to reproduce nearly everything that makes us who we are.

But many seem willing to relinquish the privacy of their DNA. As of last year, 12 million people had signed up for sites like 23andMe and Ancestry.com, which require wide-ranging permission to use, experiment with, and license customers’ DNA in perpetuity.1 “It’s just saliva,” 23andMe’s website declares. In certain respects, the law does not treat DNA as meaningfully private either. In 2013, the Supreme Court found that it wasn’t a significant invasion of privacy to check the DNA of arrestees against a database of crime scene DNA. The Court ruled that “the intrusion of a cheek swab to obtain a DNA sample is minimal,” tantamount only to a fingerprint or a photograph.2 Could a show like Black Mirror ever make a difference in reformulating the privacy of DNA? If you read Sarah Igo’s The Known Citizen, you realize that it might.

While most studies of privacy dwell on laws, court decisions, and other regulations, the premise of Igo’s book is that we might gain a better vantage point if we think about privacy as part and parcel of a larger culture. Almost from its inception, the right to privacy has often been described as if it were a kind of itch that everyone knows about but that nobody has quite been able to scratch. As early as 1890, Samuel Warren and Louis Brandeis insisted that privacy invasions were an “evil … long keenly felt” but articulated by few.3 Considering a Connecticut law outlawing contraception in Griswold v. Connecticut (1965), Chief Justice Earl Warren wrote that “basic rights are involved here—we are dealing with a confidential association, the most intimate in our life.”4 But he and the other justices couldn’t quite figure out what to call those rights. They eventually settled on privacy.

Throughout its history, the legal right to privacy has been ill-understood and vaguely formulated, popularly perceived long before it was legally enumerated. Griswold notoriously described it as unwritten in the Constitution but as found “emanat[ing]” from the “penumbras” of the Amendments.5 In Katz v. United States (1967), a pivotal case in the history of wiretapping, Justice Harlan used a “reasonable expectation of privacy” as the test for when citizens can expect to be free from surveillance.6 But who defines what counts as a reasonable expectation if not everyday people?

In The Known Citizen, Igo tracks shifts in popular expectations about privacy across disciplines, decades, and media forms. To name just a few of her numerous case studies, she describes controversies surrounding instantaneous photographs and yellow journalism in the late 19th century; Tea Room Trade, a midcentury ethnography of queer encounters in public toilets; and the ur-show of reality television, the 1970s PBS special The Loud Family. She argues that privacy serves as a “catch-all” term through which people express concerns about the porous boundaries partitioning themselves from corporations, the government, and one another.

Particularly when faced with a new technology, we can find it hard to explain why privacy interests might matter.

Igo’s study troubles the two major historical narratives about privacy, which, as she observes, point in opposite directions. Since Griswold (1965), the legal right to privacy has been expanding dramatically so that it now encompasses abortion, queer sexuality, and, in some states, the right to die. At the same time, since the 1890s, panics have periodically erupted about the erosion of privacy by new technologies, whether instantaneous photographs, wiretapping, computer databanks, or, most recently, social media. Igo argues instead that privacy norms are subject to sinuous oscillations and variations. She notes, for instance, that in the 1930s individuals sometimes tattooed their Social Security numbers on their forearms as an expression of pride. They were less concerned that the state was watching them—or about identity theft—than that they might be left behind by the welfare state. And yet, only a few decades later, many had begun to worry about the government storing personal information in computerized databanks.

In her focus on the culture of privacy, Igo’s book bears a notable contrast to two other recent studies of privacy, also published by Harvard University Press, which focus on legal solutions: Jennifer Rothman’s The Right of Publicity: Privacy Reimagined for a Public World and Woodrow Hartzog’s Privacy’s Blueprint: The Battle to Control the Design of New Technologies. A nonlegal audience is likely to be unfamiliar with Rothman’s “right of publicity,” but is probably vaguely aware that celebrities have control over the use of their images. If you want to manufacture a football video game with a Tom Brady character, a bust of Rosa Parks, or a robot that even vaguely resembles Taylor Swift, then you need to work out a licensing arrangement with the person in question or with their estate. For Rothman, it was only through a series of accidents and misreadings that privacy became seen as “something for the shrinking violets of the world,” a right to be let alone, while the right of publicity became for those who “seek the limelight.”

But the rights to privacy and of publicity were originally mentioned together in foundational privacy texts as twin protections of dignity and autonomy.7 Only later did the right of publicity come to be seen as a form of intellectual property rather than as a way of ensuring control over one’s public image. Rothman believes that reconjoining rights to privacy and publicity can reinvigorate the right to privacy, preventing companies like Facebook and Twitter from using individuals’ profile pictures to market products.

While Rothman tries to shore up privacy protections by uncovering a lost history of the right of publicity, Hartzog argues that judges, legislators, and other policymakers need to regulate the design of new technologies. At present, the law considers only how much control users have or whether companies have explicitly deceived or harmed consumers. It’s not legally meaningful that, according to one study, it would take an average person 244 hours to read all the lengthy, tedious privacy policies they encounter over the course of a year.8 The policies are still deemed sufficient disclosure.

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Particularly in the United States, there’s a widespread sense that while bureaucratic regulation will stifle technology and creativity, the market will provide sufficient privacy protection. People will simply stop using Facebook or Snapchat if their privacy isn’t secure. In response, Hartzog tries to argue for a more flexible, innovative regulatory regime focused on design. He imagines a wide range of governmental responses, beginning with the least invasive: funding privacy research and informing consumers. He continues to describe more measured policies: recognizing informal privacy settings as legally binding or else mandating certain warnings, disclosures, and tests. Finally, he brings out “robust” solutions: expanding companies’ legal liabilities for poor or leaky design or else requiring FDA-style certification of certain products.

Igo’s book suggests that for either of Hartzog or Rothman’s policy proposals to take effect, both need to be underpinned by lasting cultural support. Anxieties about privacy often seem to percolate for a while before subsiding or reemerging in a different form. Panics about instantaneous photography, computerized school records, or personality testing, so visceral in their time, seem mostly foreign to us now—or else they have been eclipsed by more intense contemporary analogues. The midcentury fear that a subliminally designed newspaper advertisement could invade your headspace seems laughable compared to Facebook ads tailored to your browsing history, friends, and previous clicks.

What might make our sense of privacy invasion more lasting? While Igo traces an incredibly broad historical survey of privacy cultures, she mostly leaves to future scholars the task of considering how and whether certain media and genres conceptualize or affect privacy differently. Nevertheless, she drops some tantalizing hints; reading her book, I was struck by how often science or speculative fiction seems to help us realize the value of privacy.

Particularly when faced with a new technology, we can find it hard to explain why privacy interests might matter. They’re often stacked against more palpable, more immediate values like security, convenience, or information. Giving my DNA to Ancestry.com might, in some circuitous way, eventually lead to a privacy violation, but I receive so much information in the present. We turn to speculative fiction to imagine the abuse that could take place if technology is left unchecked.

To take one example from Igo, a privacy expert testifying at a 1971 Senate hearing noted that most people had experienced computers only through the imagination of Stanley Kubrick: “There are many, many millions of people in the country who went to see ‘2001: A Space Odyssey,’ and they have a feeling that computers are creative, that they are domineering, that they can think for themselves.” This quote might seem to suggest that popular opinion can be uninformed and technophobic, but it shows how the computer HAL-2000 gave (and still gives) people a language to express their anxieties about being circumscribed by a powerful system they don’t understand and don’t control.

Anxieties about privacy often seem to percolate for a while before subsiding or reemerging in a different form.

One might think, too, of how many times lawmakers and jurists summon Orwell’s Nineteen Eighty-Four to conceptualize the diffuse and difficult-to-articulate values of privacy. Mentioned a few years ago by Justice Stephen Breyer in the context of warrantless governmental GPS tracking, it’s also a particular favorite of Anthony Kennedy and Sonia Sotomayor.9 But as Igo notes, voluntary oversharing and corporate-sponsored surveillance have rendered Big Brother especially inadequate. We need new metaphors, new ways of conceptualizing privacy.

When we watch contemporary culture, and in particular speculative fiction, we’re often watching the creation of those new metaphors. We’re seeing people’s reasonable expectations evolving in real time. A show like Black Mirror makes a case for privacy by imagining speculative fiction without some of the deficiencies of predecessors like Nineteen Eighty-Four or Star Trek—which not only seem inadequate to the contemporary world but which are often marred by heteronormativity or chauvinism.

On its own, it might be hard to imagine Black Mirror making a difference in changing the laws and behaviors protecting DNA, but it is just one among a constellation of works that try to imagine DNA as private. Orphan Black, too, suggests how much havoc can be wreaked from the use of one individual’s DNA as it follows the clones who, generated by an illegal experiment, are claimed as intellectual property by the corporation that created them. Westworld initially seemed like a show about a frontier-themed amusement park with lifelike androids, but it revealed in Season 2 that the androids were secretly collecting user DNA and information on behalf of the corporation.

While it’s possible to imagine speculative fiction making a difference in privacy expectations in a slow, accretive process, we can also see it more directly shaping the imagination of even the highest levels of the judiciary. When serving as a federal appellate judge, Neil Gorsuch decided a case in which investigators received a warrant to seize child pornography but from the wrong jurisdiction. He ruled against the state, writing: “Ours is not supposed to be the government of The Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse.”10 For Gorsuch, The Hunger Games, in which the Capitol is able to seamlessly surveil its inhabitants through near-ubiquitous cameras, seemed like the ideal metaphor to explain a world in which we lack the privacy protections enshrined in the Fourth Amendment. Still, the Court’s range of speculative references hasn’t extended too far beyond Orwell—at least not yet.

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Nevertheless, earlier this summer, the Court suggested that our reasonable expectations of privacy have officially changed. Previously, you relinquished your legal expectation of privacy for information that you shared with a “third party” like a phone company. When your phone pinged nearby cell phone towers while you were carrying it, you were sharing your location with the phone company—and potentially the government. But Carpenter v. United States (2018) held that it is unconstitutional for the government to gather location data from cell phone towers without a warrant.

In Carpenter, the Court ruled that people have an “expectation of privacy” in their cell phone records, even if those records are not their explicit property.11 The justices’ concerns about the tracking technology are the same type of concerns raised in dystopian science fiction. Justice Roberts writes that it “gives the Government near perfect surveillance and allows it to travel back in time to retrace a person’s whereabouts … for up to five years,” echoing Carpenter’s lawyer, who called the technology “a time machine” in oral argument.12 Joining the court’s liberal wing in a 5–4 decision, Roberts vindicated Katz’s“reasonable expectation” standard, refusing to side with conservative justices like Thomas, Alito, and Gorsuch, who understand the Fourth Amendment as applying only to one’s person and one’s property. Rooted in expectations, privacy continues to be a cultural phenomenon.

Rumors of privacy’s death have been greatly exaggerated—and over a hundred years in the making. In expanding the right to privacy, however modestly, the Court signals the unfolding of a new chapter in American privacy. But while the story progresses, the theme remains the same. Privacy continues to be part of an ongoing dialectic between known and unknown, reclusiveness and exhibitionism, intimacy and distance—one shaped by the culture of the present day.

 

This article was commissioned by Caitlin Zaloom. icon

  1. Antonio Regalado, “2017 Was the Year Consumer DNA Testing Blew Up,” MIT Technology Review, February 12, 2018.
  2. Maryland v. King, 569 U.S. 435, 437 (2013).
  3. Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review, vol. 4, no. 5 (1890), p. 195.
  4. Quoted in Igo, p. 152.
  5. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
  6. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.M., concurring).
  7. See, for instance, Warren and Brandeis, “Right to Privacy,” pp. 213–14; Pavesich v. New England Life Ins. 50 S.E. 68, 70 (Ga. 1905); William L. Prosser, “Privacy,” California Law Review, vol. 48, no. 3 (1960), pp. 401–407.
  8. Aleecia M. McDonald and Lorrie Faith Cranor, “The Cost of Reading Privacy Policies,” I/S: A Journal of Law and Policy for the Information Society, vol. 4, no. 3 (2008), pp. 543–68.
  9. For Kennedy, see Jeffrey Rosen, “Supreme Leader: On the Arrogance of Anthony Kennedy,” New Republic, June 16, 2007. For Breyer, see transcript of oral argument at U.S. v. Jones 565 U.S. 400, 9 (2011). For Sotomayor, see Nina Totenberg, “For Justice Sotomayor, Books Unlocked Imagination,” NPR, January 19, 2003.
  10. United States v. Krueger, No. 14–3035, 16 (10th Cir. 2015) (Gorsuch, N., concurring).
  11. Carpenter v. United States, 585 U.S. 1, 5 (2018).
  12. Carpenter v. United States, 585 U.S. at 2. For a transcript of oral argument, see Carpenter v. United States, 585 U.S. at 12.
Featured image: a scene from the “USS Callister” episode of Black Mirror (2018)