Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published. My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year. And rightly so: the book is insightful, important, and engrossing. Before I reproduce below my interview with Professor Allen, let me introduce her to you. She is a true renaissance person, just see her Wikipedia page. Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School. She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program. In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow. Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals. She also writes for the Daily Beast and other popular media.
Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed?
I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011). My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families. In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die. Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.
To use a cliché, it’s a brave new world. Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy. Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.
The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.
Question: Your book coins the phrase “unpopular privacy.” In what way is privacy unpopular?
First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure. For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.
I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to. My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control. (I call such people the beneficiaries and targets of privacy laws.) “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members. My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.
Question: If people don’t want privacy or don’t care about it, why should we care?
We should care because privacy is important. I urge that we think of it as a “foundational” good like freedom and equality. Privacy is not a purely optional good like cookies and sports cars. Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions. I agree with moral, legal and political theorists who have argued that privacy is a right.
I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self. I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.
If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms. Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read More