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The Original Privacy Position

posted by:David Matheson // 11:50 PM // July 12, 2006 // Core Concepts: language and labels | Digital Democracy: law, policy and politics | Surveillance and social sorting

Thomas Nagel has pointed out that there is an analogy to be drawn between (what I’ll call) the problem of liberalism and the problem of privacy. The problem of liberalism concerns “how to join together individuals with conflicting interests and a plurality of values, under a common system of law that serves their collective interests equitably without destroying their autonomy.” (Nagel 1998, 4-5) The problem of privacy is that of “defining conventions of reticence and privacy that allow people to interact peacefully in public without exposing themselves in ways that would be emotionally traumatic or would inhibit the free operation of personal feeling, fantasy, imagination, and thought.” (Nagel 1998, 5)

One well-known attempt to deal with the problem of liberalism comes from John Rawls (1971). He asked us to imagine individuals in what he called the Original Position. Inhabitants of the Original Position are behind a “veil of ignorance” that cuts them off from any significant knowledge of their position in society: they don’t know whether they are rich or poor, powerful or disadvantaged, members of a social majority or minority, etc. Under such conditions of ignorance, they are faced with the task of determining the basic structures and rules whereby society is to be ordered. Whatever structures and rules they would agree upon, Rawls claimed, are the basic principles of justice (as fairness).

So what would the inhabitants of the Original Position agree upon? Rawls pointed to two fundamental principles. First, the liberty principle:

Liberty. Each individual is to have a maximal amount of basic liberty (including such things as the freedom to vote, the freedom to be considered for public office, freedom of speech, freedom of conscience, freedom of assembly, and freedom from arbitrary arrest and seizure) consistent with a similar liberty for everyone else.

Second, the difference principle:

Difference. Socio-economic inequalities are to be such that they bring the greatest benefit to least advantaged members of society.

By thus using the decision procedure that consists of thinking about what inhabitants of the Original Position would agree upon, Rawls suggested, we can get clear about the basic principles of justice. These principles provide the general framework for understanding “how to join together individuals with conflicting interests and a plurality of values, under a common system of law that serves their collective interests equitably without destroying their autonomy.” Hence the use of the Original Position gives us one way of dealing with the problem of liberalism.

I wonder if there isn’t an analogous solution to the analogous problem, i.e. to the problem of privacy. Perhaps we can make use of a privacy version of the Original Position; call it the “Original Privacy Position.” Thus, as before, imagine a group of individuals behind a metaphorical veil of ignorance. Now, however, the veil only precludes them from knowing anything significant about their privacy position in society. Inhabitants of the Original Privacy Position, in other words, don’t know such things as whether their privacy is generally at serious risk, whether they attach a great deal of value to their privacy, whether they are in a position to make a lot of money through the diminishment of others’ privacy (or whether others are in such a position with respect to them), etc. And behind this veil of privacy ignorance they are given the task of deciding upon the basic norms of “reticence and privacy,” to use Nagel’s phrase, or norms of the “contextual integrity” of personal information, to use Helen Nissenbaum (1998, 2002)’ s equally apt one. The idea would be that whatever basic norms inhabitants of the Original Privacy Position would agree upon, those are the basic privacy norms that any just society should respect.

Maybe they would agree upon norms quite analogous to Rawls’s two general principles of justice. First, there would be the privacy norm:

Privacy. Each member of society is to have a maximal amount of basic privacy consistent with a similar privacy for everyone else.

Then there would be something like the difference of privacy means norm:

Difference of privacy means. Inequalities with respect to individuals’ means of controlling their privacy (e.g. inequalities concerning access to technologies designed to protect their privacy, or to diminish that of others) are to be such that they bring the greatest benefit to the least privacy privileged members of society (i.e. to those members of society who are the least advantaged with respect to controlling their privacy).

Although I haven’t yet chatted with him about this, it seems to me that this Rawlsian approach to the problem of privacy might serve as a basis for justifying Steve Mann’s program of equiveillance. After all, a good case can be made that many of the surveillance structures in our actual society violate one of both of the just mentioned privacy norms. (Compare Lucas Introna (2000)’s claim that workplace surveillance practices sit ill at ease with the Rawlsian approach to justice as fairness.)

Consider, for example, the surveillance structures built into digital rights management technologies. Those structures certainly yield inequalities when it comes to individuals’ means of controlling their privacy. And they arguably bring no (let alone the greatest) benefit to the least privacy privileged members of society. Steve’s insistence that we aim for equiveillance through sousveillance could perhaps be cast as the point that sousveillance is needed to bring us back to an appropriate respect for such privacy norms as Privacy and Difference of privacy means.

References

Introna, Lucas. (2000). “Workplace Surveillance, Privacy, and Distributive Justice.” Computers and Society 33: 33-9

Nagel, Thomas. (1998). “Concealment and Exposure.” Philosophy & Public Affairs 27: 3-30

Nissenbaum, Helen. (2004). “Privacy as Contextual Integrity.” Washington Law Review 79: 119-58

Nissenbaum, Helen. (1998). “Protecting Privacy in an Information Age: The Problem of Privacy in Public.” Law and Philosophy 17: 559-96

Rawls, John. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press.

Comments

This kind of stuff drives me crazy.

First, if you're behind the veil of ignorance, cut off from the rest of the world, how can you begin to conceptualize the dissemination of personal information in that world.

Second, (limited access to technology that protects privacy) + (least advantaged in terms of protecting their privacy) = who are you talking about Dave?? In countries with no privacy laws, that's everyone! In countries that do, if someone can afford a laptop then I think they can afford an anti-spyware program, and there's even a good chance it's already installed. So, the only people we're talking about is maybe a few poor people using internet cafes.

Third, do the poor really need our help to protect their privacy? Aren't they more concerned about other things, like oh, being poor? The poor need our help to protect their human rights and civil liberties in general, privacy is a minor part. And who's to say they suffer from the same level of privacy violations middle to high class people do? They aren't surfin' tha net and buying things with their gold cards. Are these the people you would have purchase souveillance equipment from Steve Mann???

Posted by: P.E.T. peeved at July 13, 2006 03:33 PM

P.E.T peeved,

To say that the hypothetical inhabitants of the Original Privacy Position are “behind a veil of privacy ignorance” is to say that they lack knowledge of their privacy position in society. I don’t think it’s so difficult to imagine how, despite this lack of knowledge, they could consider what sorts of privacy norms they would want in society. Compare the amnesiac who awakens to find herself in serious doubt about who she is. Despite not knowing much if anything significant at all about her position in society, she might well entertain thoughts about what sort of position she’d like to be in, what sorts of norms she’d like to see in place in society, etc.

The least privacy advantaged members of society needn’t (though they may often) be the least financially advantaged. I might be more privacy advantaged than living members of an earlier generation, for example, despite their being in a better off position financially, because I might be more familiar with the means of protecting personal information in a networked society.

I agree that that there are concerns that are much more pressing for poor members of society than that of privacy. (That’s perhaps one of the reasons why the problem of privacy is taken to be analogous to - - not identical with - - the problem of liberalism.) I hope that nothing in my piece suggests otherwise. But, after all, this is a blog wherein privacy takes center focus. And that there are concerns of greater importance does not imply that privacy is wholly unimportant.

Posted by: David Matheson at July 14, 2006 11:54 PM

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