So today on slashdot I ran across a link to law professor Daniel Solove’s article grappling with the “nothing to hide” argument against privacy protections. He certainly has some thought provoking things to say and his new book will likely be interesting but I think he makes some fundamental errors in his approach to the subject. Nevertheless, reading it did inspire me to better formulate some of my thoughts on the subject.

The problem with Solove’s arguments is that he tries to simultaneously argue for the value of privacy while seemingly rejecting the notion that there is any principled commonality to the values that we place under the rubric of privacy. While both of these notions are plausible on their own they are in significant tension with each other. If indeed privacy is a word like ‘game’, famously analyzed by Wittgenstein to be a hodgepodge of different concepts related only by a chain of analogies, then it’s at best pointless and confusing to defend it as a package and at worst a way to smuggle in values you can’t defend using the cover of an unprincipled linguistic grouping. Unless the values we term privacy have some important principled commonality then they should stand or fall on their own merits rather than riding the coat tails of the vague positive connotations we have with the word privacy.

To see that privacy isn’t really a monolithic notion compare the idea that other people shouldn’t be able to easily find out your social security number really doesn’t have much to do with the idea that the government shouldn’t be able to monitor your phone calls and reading habits. These two notions don’t really have very much in common. One of them is concerned with other people’s knowledge of your intimate affairs and private conversations while the other involves only a purely arbitrary identifying number. The reason we don’t want people to find out our social security number isn’t because it’s an intimate detail of our life but because it’s unfortunately used as an authentication method for certain financial transactions and we fear becoming the victims of credit fraud. Certainly it’s important that people not be able to buy a car in my name but arguments that defend my right to be free of government surveillance aren’t going to have much to say about who finds out my social security number and vice versa.

However, I do think there is a certain core concept that is shared by many, though far from all, things we conceptualize as a right to privacy. That is the notion that we should enjoy a certain autonomy or freedom of choice, both from the government and society, in how we conduct certain parts of our lives. Certainly this is no definition of even one kind of privacy but I think it’s the uncritical acceptance that it’s literally privacy that’s important that sidetracks so many people into silly issues like what facebook publishes by default on their friend feed¹. The reason I tend to be largely critical of privacy crusaders is that they tend to take the idea too literally and fight a lost cause trying to limit what other people are able to learn about you (endangering free speech….and privacy² along the way) rather than looking for the underlying value privacy provides for the culture and seeing how best to achieve that end in the information age

Ultimately what privacy provides is the freedom from judgment (be it legal, religious or social) about certain aspects of our lives. It does this both by making it practically difficult to enforce certain kinds of invasive laws (thus discouraging their enactment) as well as keeping your porn collection or wild spring break party a secret from your parents/priest/boss. Both of these mechanisms are endangered by the information age. The traditional protections of 4th amendment law border on uselessness in the face of fancy data mining programs to suggest likely offenders, the amount of information out there on the internet (your friends and neighbors gossip…and may take infrared pictures of your house even if the police can’t), and the huge amount of information we store on computers (police can subpoena your ISP’s buisness records or get access to your entire computer if they have probable cause to see even one document). Similarly search programs and the inevitable advent of facial recognition along with people’s tendency to post pictures to the internet will erase the anonymity you might have once had on spring break.

However, I think we can find replacements for these tools that provide the same benefits in the information age. Just as some other cultures have done we need to develop traditions of ignoring (or at least not scolding) based on certain aspects of people’s lives. This is the reason that unequal loss of privacy/anonymity is so much more dangerous than an equitable loss. Everyone has things that might embarrass them or present a less than professional image and if we all know that these can easily be found we are much more likely to let other people have their personal space as well. The legal aspect will be more difficult but it is also achievable. We will need to shift the focus of our protections away from the guarding of information and towards rules against intrusiveness. Perhaps in addition to rules requiring search warrants we could have rules barring unprompted investigation, i.e., rules that prevent tearing someone’s life up for a crime without a particularized identification of a victim who does/would have wanted an investigation. That’s just a shot in the dark but I suspect something better will be found.