Configuring the Networked Self: Shared Conceptions and Critiques
Configuring the Networked Self is an intellectually exciting, engaging and challenging book. The directness and analytical clarity of the book are real virtues. Cohen seeks to employ insights from human capabilities theory, along with the language and tools of European post-modern thought to offer a better theoretical understanding of policy options for contemporary copyright and privacy law. The book is aggressively (and I would suggest, needlessly) anti-liberal; but liberalism is not the only theoretical approach Cohen finds deficient. In her view, feminism, law and economics, utilitarianism, and legal pragmatism are not fully adequate to meet the demands of information-age problem solving.
I have a number of concerns about the book. A global concern is that it targets a highly stripped-down “straw man” version of liberalism, reduced to three propositions. Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls. If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation. In this symposium, I will take the opportunity to offer a few comments focused on some of Professor Cohen’s views about privacy. First, I want to point out how congenial some of her perspectives are, even to a liberal like me. Second, I wish to point out what I believe are some interesting mis-directions in her analysis.
I must begin by pointing out that I am a self-professed progressively liberal feminist. My three books on privacy (Unpopular Privacy: What Must We Hide (2011); Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (2003); Uneasy Access, Privacy for Women in a Free Society (1988) celebrate robust freedom of thought and action, of course, but also celebrate equality, accountability, tolerance, and mutually respectful relationships.
In my 1988 book I presented privacy as a broad “umbrella” concept encompassing seclusion, solitude, secrecy, confidentiality, modesty and reserve; I advanced a definition of privacy influenced by Ruth Gavison as “the inaccessibility of persons and information about them to the senses and surveillance devices of others.” I defended privacy as a value against feminist critics for whom privacy was synonymous with domination and subordination. I have not prescribed a definition of privacy tailor-made for the Internet era. However, my most recent work (the 2011 book) relates to the question of whether privacy protection should be left to individual choice, especially in light of the Internet age’s penchant for revelation. Earlier work (the 2003 book) considered the extent to which accountability demands “outweigh” privacy demands. Recent papers in the California Law Review (2010) and the Penn Journal of Constitutional Law (2012) concern whether privacy tort law and First Amendment privacy jurisprudence (respectively) serve progressively liberal socio-political goals relating to equality and respect for women, racial minorities, and LGBT communities.
Cohen purports to reject (pp. 16-21) liberalism as false, contradictory, and impractical. Yet, despite its anti-liberal and post-modern packaging, I find Cohen’s “reimagined” definition of privacy and the pride of place she give it in the pantheon of values both familiar and congenial. This may because, as they say, everything old is new again. I read her interdisciplinary perspective as nearly a patchwork quilt of the better elements of ancient, medieval, modern, and contemporary liberal and post-modern theories.
To begin with, Cohen embraces classical teleology and recent human capabilities theory. Human flourishing is a concept of human well being with its deepest roots in Aristotle’s Nicomachean Ethics, Western culture’s first systematic account of ethical value. Even thinkers who reject Aristotle’s teleology in favor of utilitarian or deontology approaches share some version of the notion that human “nature” and related well-being matters in political, social life and moral life. For Aristotle, eudemonia (εὐδαιμονία) was a principal end; virtue and practical wisdom is principal means. Aristotle’s vision has been reworked for modern applications by classist, feminist and legal theorist Martha Nussbaum, among others.
What is termed a “human capabilities” approach to norm-promoting in the human development realm — associated with Amartya Sen, Nussbaum and others and grounded in multivalent conceptions of human flourishing — has had broad appeal in recent times. Yale public health policy scholar Jennifer Prah Ruger employed it in her book, Health and Social Justice (Oxford 2010), as did Jennifer Ruger and now Cohen. Ruger argued that health is a vital condition of human flourishing; and Cohen maintains that privacy (defined as “the process of differential boundary management by situated subjects,” p. 248) is such a condition—an “indispensable enabler of the process of subject formation.”
When it comes to “subject formation,” there is a tension—one that I believe crosses the boundaries of all extant moral and social theories—between meeting imperatives with respect to what a person or subject reflects, claims, and seeks as his/her identities and meeting imperatives with respect to enabling the capacity of a person or subject to reflect, claim, and seek alternate identities. In my privacy law classes, I assign the Italian philosopher Pico Della Mirandola’s famous humanistic encomium to the dynamic versatility of human beings make themselves as they will, the “Oration on the Dignity of Man.” This 15th century text can be read, either as a surprisingly modern-sounding but pre-liberal celebration of human autonomy or as a post-modern call to play: “Neither a fixed abode nor a form that is thine alone nor any function peculiar to thyself have we given thee, Adam, to the end that according to thy longing and according to thy judgment thou mayest have and possess what abode, what form, and what functions thou thyself shalt desire. …”.
Cohen understands privacy as “the process of differential boundary management by situated subjects,” p. 248. To help explain what she means she relies on an article by Irving Altman that, for decades, has influenced my thinking about privacy. She also appears to have been influenced by an oft-cited article, which appears in her bibliography, by American University philosopher Jeffrey H. Reiman. [“Privacy, Intimacy, and Personhood,” Philosophy & Public Affairs Vol. 6, No. 1 (Autumn, 1976), pp. 26-44.] In response to an emerging body of literature from the 1970s in which liberal moral and political philosophers (including Judith J. Thomson) argued, in effect, that privacy enhanced personhood, Reiman argued that privacy was instead more of a precondition of personhood. Reiman articulated a conception of privacy as the social rituals through which persons comes to think of themselves as a separate and distinct from others. Without privacy there would be no persons, no subjects, no selves. Far from being committed to obscurely transcendent selves, some liberal philosophers of privacy have long appreciated respects in which social practices, some intentional, some not, are dynamically responsible for selves. They have understood that “boundary management” is an important dimension of what it means to have, want, expect and confer privacy.
For Cohen, the “self” is “situated.” She faults liberal theorists for perpetuating a conception of selves as abstract and unembodied. (She doesn’t think privacy feminists’ contextualisms or Helen Nissenbaum’s privacy-as-contextual integrity or Solove’s pragmatism go far enough in pushing an understanding of self as “situated.”) Faulting liberalism for failing to “see” that selves are not abstract and un-situated is a decades’ old move that predates the Internet. Consider the thrust of Harvard political theorist Michael Sandel’s neo-republican critique of John Rawls, dating back to the early 1980s. In his book Democracy’s Discontent: America In Search of a Public Philosophy (1998), Sandel doesn’t theorize the Internet but he faults the Supreme Court’s privacy jurisprudence for too often operating with a notion of privacy as an autonomy interest. Sandel argues that privacy is better understood as an interest individuals have in the freedom from state or other outside constraints that impair the ability of moral agents to meet obligations and fulfill desires deeply rooted in their “encumbered” selves. The encumbered self, like the situated self, is defined by material conditions, including histories and relationships not of its own creation.
Cohen’s situated self is constrained and unconstrained in some different respects than Sandel’s encumbered self, but the concepts of situated and encumbered selves are both products of critical rejections of Kantian and Rawlsian liberalism. Those critical rejections have lead to refreshed liberalisms. Liberal scholars, including Will Kymlicka, have sought in interesting ways to incorporate the undeniably situated/encumbered self into revisoned notions of liberal democracy. “Despite” my liberalism, I find Cohen’ emphatic depiction of users of networked technologies as “situated” rather than abstract, transcendent selves completely friendly.
I believe Cohen exaggerates the errors and limitations of privacy scholarship.
First, Cohen exaggerates the extent to which privacy scholarship focuses only on information and transparency, neglecting the spatial dimension of privacy. (I found puzzling her related assertion that privacy theorists focus on “visibility” to the detriment of “exposure:” Big Brother is about visibility, but the protagonist of Orwell’s that novel is awash with anxieties of exposure.) I believe she has formed this mistaken view in good faith, but because she is reading and engaging internet/digitally oriented “information society” scholars and scholarship to the detriment of others.
I would assert that analysis and recognition of physical, geographical, bodily and other spacial privacies are well-represented in the philosophical, legal and social science literatures. Indeed, my aforementioned book (Unpopular Privacy) pairs chapters on physical privacies (tied to homes, other places of seclusion and bodies), with chapters on confidentiality and other information privacies relating to social networking and life online. This pairing of physical with informational privacies is based on a belief that to understand the normative grounds for neglected and devalued informational privacies, it helps to understand the normative foundations of deeply valued physical privacies.
I have always found it extremely important to begin my privacy law course with common law privacy tort law. That body of law (intrusion upon seclusion, publication of private fact, discourses of freedom, modesty, and inviolate personality) emphasizes spatial, bodily and domestic dimensions of privacy and related rationales for privacy protection that historically and philosophically carry over into the realms of online and offline information privacy. To get federal laws like GLBA, HIPAA, and FERPA or to appreciate the FOIA exceptions or ECPA or FISA, it helps to get Warren and Brandeis, DeMay v Roberts, Pavesich. Cohen’s point that people (situated selves) affected by off line surveillance and online monitoring may experience these things “spatially” comes as no surprise to me. I agree, as she argues on p. 141, is that the spatial dimension of privacy is relevant not only to physical spaces but also to the ongoing debate about privacy interest in online conduct ( p. 242).
Second, Cohen asserts that the consensus view is that there is no expectation of privacy in public places. Yet many privacy scholars share her substantive views. Courts and officials say that there can be no privacy in public places, and that surveillance hence poses no privacy issues. But I am not so sure many liberal or non-liberal privacy theorists share that simple-minded view. I defended the idea of privacy in public way back in my 1988 book; Helen Nissenbaum has done so for a decade or more; and I do it again, in an short essay on urban surveillance, in response to New York City’s post 9/11 “ring of steel.” [Driven into Society: Philosophies of Surveillance Take to the Streets of New York, Amsterdam Law Forum, Vol. 1, No. 4, 2009.]
Third, Cohen presents her book as offering a superior read on contemporary problems and as pointing a clear, more logical path to resolving problems. Yet, for the most part readers of Cohen’s book will not find a scholar whose concrete proposals for policy are at odds with the mainstream. On pp. 252-253, for example, she rejects the notice and consent regimes found in so much US privacy law and policy. Pointing out the inadequacies of the notice and consent model is a standard “move” among privacy scholars today. Her calls for substantive data and privacy protections that may not allow for waiver are more radical; but they do they depend for articulation on her non-standard post-modern methods. Indeed, I was struck by how similar her conclusions are to some I have reached from the vantage point of liberalism. I argue in Unpopular Privacy that liberalism embraces foundational goods essential for well-being that should not be subject to forfeit under regimes that offer pseudo-choices rather than meaningful experiences of privacy.
I end with a final observation. Cohen’s important book focuses primarily on the privacy and subjectivity of the user of the Internet/web. And her paradigm for her readers is the situated self in the café with a laptop, browsing the Internet and maybe doing something embarrassing that might get caught on a surveillance camera or webcam. But what really is the “situation” of the situated self she asks us to reflect on? Why is he or she there in a cafe? Luxury café culture? Escape from a household of domestic abuse? Looking for employment in a poor economy? What is she asking, needing, expecting of the internet?
Cohen “gets” the offline problems, to a great extent, but I would have liked more analysis of the subjectivity, privacy, and needs of situated selves in so far as they are non-users affected by internet/web use. I would have liked more systematic discussion of the issues raised by Tyler Clementi, Amy Boyer, and social networking/electronic records privacy invasion victims like Candance Yath. More about the Boring family and its failed suit against Google. Is the privacy of such people adequately understood using the same framework we use to think about the hypothetical café visitor online on his/her laptop? What does means to be a situated self in a Rutgers dorm room; what does it means to have an interest in boundary management when a high school acquaintance stalks and plots murder or Google trespasses on your private property; and what does the interest in identity play amount to when you get an STD from an extramarital affair? Cohen’s book stresses the conditions of human flourishing. Two such conditions, along with privacy are surely civility and safety. How do differences in power, in class, in gender, in race and in sexual orientation matter in the pursuit of these conditions?