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Category: Privacy

1

Trust is a Funny Thing

Last time, we discussed briefly that Erving Goffman’s social theory gives us an interactional perspective on privacy as a social relationship of trust and discretion. But trust, like love and life, is a funny thing. Trust is sometimes confused with naivete (Marshall 1976) or hallowed by optimism (Millman 2001), but trust, and its corollary, discretion, are what makes social interaction possible. I would like us to think about privacy this way: trust and discretion are what online best practices should encourage; trust and discretion, not an individual right, are what society should actively protect.

This is not a common denominator approach (Solove 2001). I am not arguing that everything we traditionally think of as “private” is trust and discretion. Nor is this a pure social network approach (Strahilevitz 2005). I am not arguing that we should protect privacy based on the suggestion from social science research that individuals tend to share or disclose otherwise private facts about themselves when they assume that the disclosed facts will not jump from one social network to another. Professors Solove and Strahilevitz are correct in their warnings and recommendations. But I believe that protecting disclosures where trust and discretion exist add value to both of their important contributions in the following ways:

First, intimate sharing among strangers is a fact we cannot — and the law should not — ignore. Professor Strahilevitz’s masterful work, A Social Network Theory of Privacy, does a good job surveying some of the social network research about sharing. But that research is in its relative infancy, as we all acknowledge. What is missing is a detailed understanding of the type of information shared with different groups of friends, particularly bare acquaintances and strangers. I hope to contribute to this understanding with the quantitative and empirical portions of my dissertation. The beta version of my surveys seem to suggest that highly intimate — determined on a subjective scale — information is often shared with veritable strangers. If sharing with strangers exists, it seems like tilting at windmills for the law to try to erect barriers that we know will fall, at best, or create perverse incentives for social sharers and private industry, at worse.

Second, trust can exist among strangers (Macy and Skvoretz 1998) and further research into the social determinants of that trust can give us the tools we need to determine when it is reasonable for judge or jury to protect the privacy interests of certain actors. Much of the social science literature about trust among strangers is in the game theory context (Macy and Skvoretz 1998, Buchan 2002, Croson 2002, Grabner-Kraeuter 2002, etc.). The quantitative studies in my dissertation have the potential to help us understand privacy among strangers outside the decision-making and consumer context, but inside the friend/social sharing context. It is, for example, too simple to say that people “sext” because they don’t believe in or understand or think about or care about privacy. Nor is it enough to say that we engage with strangers in the physical world and online because we think our social networks are separate. I would like to prove that trust and discretion exist among strangers online when sufficient information exists to act as social cues for trustworthiness, with the most important cue being embeddedness, or connections to other individuals for whom the trustworthiness decision has already been made. That decision may, at times, be related to the target’s position in your social network. But more likely, embeddedness is an overarching factor for which social network position is a proxy, or social network position is but one in a series of cues for embeddedness. In either case, the social science evidence does not require us to stop at social network position. We need to take another step.

Much of this work is decidedly in the work-in-progress stage. I have appreciated the comments so far and look forward to any comments, questions from the CoOp community.

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Considering Criminality in the Sale and Purchase of Sex

The New York state court system this week unveiled its Human Trafficking Intervention Initiative to expand a network of pilot courts specially aimed at linking prostitution defendants with a range of social services, and offering the potential for non-criminal dispositions or reduced charges for these defendants.  The program represents an important step toward addressing the exploitation of women, men, and children through sex trafficking.  The recognition of coercion in the sex trade and of the coexistence of prostitution with needs for housing, healthcare, immigration assistance, job training, and drug treatment echo reforms in the domestic violence context to create more integrated judicial approaches to addressing the needs of victims.

 

These reform efforts raise the question of how much attention should be paid to the market supporters of the sex trade.  Law enforcement has tended to focus on sellers of sex, rather than its purchasers, although every state in the U.S. but Nevada criminalizes both the sale and the purchase of sex.  Our American approach, however, is not self-evident.  Sweden criminalizes patronage but not prostitution, akin to many European countries.  The NY reforms suggest further thinking about allocation of criminal responsibility.

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Neutering Parents: Parents’ Sexual Liberty and Marriage

Recent reports of a Texas state court order requiring a divorced custodial mother’s cohabiting female partner to stay away between 9 pm and 7 am while the children were in the home brings to mind the continued discrimination against same-sex couples and same-sex couples with children through custody law, despite major strides on the marriage access front.  In my 2012 article The Neutered Parent, I explore the ways in which custody law has historically been used to enforce norms of sexuality against women and sexual minorities, particularly to discipline sexuality into a marital framework.  The problem with this judicial action, of course, is that same-sex couples may not marry in Texas.  The wider availability of marriage, however, would not necessarily diminish the assumption inherent in such “morality clauses,” that parental sexuality is best pursued in a marital context.  Broader access to marriage/marriage rights, including as conferred by the federal government following Windsor, should prompt us to consider with greater attention the rights of parents outside of the marital sphere.  Analysis of the latest Census data highlights the class-based disparities in who gets married and who doesn’t.  Nonmarital parents constitute a significant and growing percentage of parents.  These reports raise the question of how custody law should address such realities of contemporary family life.  Is the answer to bring more parents into the marital fold?  The Texas case suggests continued reliance on heterosexual, marriage-based norms of parental sexuality.  As I discuss in The Neutered Parent, the ALI’s 2002 amendments to custody provisions pertaining to parental sexuality fail to foreclose the types of thinking that animate discriminatory custody decisions.  While the ALI suggests focusing on parental “conduct,” rather than relying on biased assumptions about how parental sexuality and nonmarital sexuality pertain to children’s best interests, the ALI might provide more explicit criteria for what qualifies as relevant conduct.  Without such clarification, actions that might not read as “sexual conduct” in a marital setting, like a parent’s private consumption of pornographic material, might look like evidence of relevant conduct in a nonmarital setting.  This is because of what I describe in The Neutered Parent as the perceived “sexual salience” of nonmarital parents in judicial determinations of custody.  Greater clarity regarding relevant parent conduct can better serve sexual liberty interests as promised by Lawrence v. Texas.

Coding Freedom: An Aesthetics of Decontrol

Gabriella Coleman’s Coding Freedom is a beautifully written book, offering deep insight into communities of hackers. By immersing herself in the culture of free and open source software devotees, she helps us understand the motivations, goals, frustrations, and aesthetics of a frequently misunderstood movement. The stakes are high, both for those inside and outside the hacker community. Some want the term hacker to primarily denote playful creativity; others emphasize subversion of oppressive power centers; still others embrace an identity of unreasoned disruption.

Outsiders stray into such debates at their peril, and Coleman took significant risks to write the book. As an academic, she defied conventional anthropological career paths by launching an investigation of a digitally connected enclave within an advanced society.* As an observer, she risked that sub-subcultures would try to exact revenge on her for saying something they disagreed with. (It’s not just the obvious targets who get hacked.) But the gambles have paid off, both within the academic community and in the broader ambit of Internet intellectuals.

Hackers are frequently misunderstood, both when praised and when damned. In the popular imagination, the computer hacker can pop up as a digital Bonnie or Clyde, fighting “the system” of opaque automation. On the other hand, former NSA Chief Michael Hayden wrote off hacker fans of Edward Snowden as “nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven’t talked to the opposite sex in five or six years.” The hero/villain narratives are easy to sell to Wired or Fox. Coleman gives us a much richer story.
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What Can Erving Goffman Teach Us About “Privacy”

I hope those celebrating Yom Kippur had a an easy fast.

We’ve already seen a few clues into the famous sociologist’s assumptions about privacy. As I discussed last week, Goffman seemed to fall into the trap of burdening his vision of “the private” with a negative moral judgment: we do things in secret because to do them in public would be embarrassing, discrediting, or worse. The private sphere was assumed to be the place where we literally let our hair down, literally let out our gut, and literally curse our our bosses. (And I am using the word “literally” correctly here, not according to the frustrating new definition, which will literally — ahem — make your head explode!).

In a series of short posts, I would like to flesh out what else we can learn from Goffman regarding the sociologists’ assumptions about privacy. It’s worth looking at Goffman, not only because of the seminal role he continues to play in sociological theory (if not methods) but because his theories are part of the culture and zeitgeist in which privacy scholars from the legal and philosophical worlds also live.

Goffman is famous, in part, for his back stage/front stage distinction in his discussion of micro- and macro-social interaction. In The Presentation of Self in Everyday Life, Goffman (1959) analyzes social interaction through an extended theatrical conceit, comparing individuals to actors on a stage. He separates the front stage, where the performance of social interaction occurs (p. 107), and the back stage, where individuals can drop the façade of performance (p. 112). And he describes them as places, or “setting[s]” (Goffman, 1959, p. 107). The back stage is a place of hiding (Goffman, 1959, p. 113), so that devices like telephones, closets, and bathrooms “could be used ‘privately” (p. 112). It is also cut off from the front stage by a partition, passageway, or curtain (p. 112). The backstage, then, is defined by providing the performer with a private space—like a home, a green room, or a bathroom—to do certain necessary things away from an audience.

This sounds like a perfect tool for supporting spatial assumptions about privacy. But that would be taking Goffman too literally.

Perhaps we should resign ourselves to the idea that Goffman is a moralist who has a limited view of privacy as a place for deviance. My previous post certainly offered strong evidence of that. But, again, that might be taking Goffman too literally. More importantly, it misses what I feel is his greatest contribution to the study of privacy from a sociological standpoint.

Consider Goffman’s (1972) explanation for why staring and “intrusive looks” (p. 45) are, to use his words, “invasions of privacy.” Staring, Goffman (1963) writes, is not an ordinary or appropriate social interaction: it discriminates against the target and puts him “in a class apart” (p. 86). You stare at zoo monkeys, not people, so the invasion of privacy must either be a threat to the victim’s dignity as an end in himself, per Kant, or a breach of some implied duty that individuals owe one another. Goffman, true to his sociological roots, argues the latter, calling it a duty “civil inattention” (p. 85). This has groundbreaking implications for the study of privacy.

Civil inattention is a form of polite recognition of strangers, manifesting itself in nods of acknowledgment alongside a respectful modesty not to intrude where you do not belong. Staring at a physically injured or deformed bystander is the antithesis of civil inattention. In this example, the target might consider his injury “a personal matter which [he] would like to keep private” (Goffman, 1963, p. 86), but the fact that it is visible makes it publicly obvious. This obvious injury “differs from most other personal matters”—namely, those personal or private things that go on in the private sphere—because everyone has access to the injury regardless of how much the target would like to keep it secret (Goffman, 1963, p. 86). We are told not to stare precisely because the behavior’s abnormality disrupts the normal course of social interaction. It has been known to cause fear and flight (Ellsworth, 1972).

And so, as bystanders in general, we owe a duty to other individuals to treat them with discretion. Every interaction includes bystanders’ social obligation to protect social actors so that their interactions can continue. We have a “tactful tendency … to act in a protective way in order to help the performers save their own show,” Goffman (1959) writes, using his theatrical conceit to analogize to everyday social interaction (p. 229). We show extra “consideration” for novice performers, i.e., the young, who, because of the likelihood of mistakes, could damage ongoing social interaction by lapsing, forgetting how to behave, or brazenly engaging in asocial behavior, like nail-biting, nose-picking, or staring (Goffman, 1959, p. 323, 132). This tact is simply another word for discretion and respect: the knowledge that he is a beginner is appropriately set aside and ignored so that the performance can continue despite his mistakes. We also owe a measure of “tactful inattention” to neighboring conversations and nearby individuals to guarantee the “effective privacy” of others, a principle colloquially encapsulated by the phrase, “keep one’s nose out of other people’s” business (Goffman, 1959, p. 230). Privacy invasions, therefore, are not simple intrusions into personal territory or the disclosure of negative behaviors; rather, they are socially inappropriate behaviors that violate the trust and discretion we owe others.

Privacy-as-trust and discretion is also captured in Goffman’s early essay, The Nature of Deference and Demeanor (1967). Deference conveys respect “to a recipient or of this recipient, or of something of which this recipient is taken as a symbol, extension, or agent” (p. 56). In doing so, deference certainly imbues others with value and dignity; but that is merely a byproduct of the overarching purpose of creating a path for interaction. Rules of deference and respect constitute “rules of conduct which bind the actor and the recipient together” and “are the buildings of society” (Goffman, 1967, p. 90). In others words, they cue others as to our potential as interaction partners. This is the role of privacy. It creates a sense of confidence that allows people to share.

Teasing out this argument is how I would like to spend the remainder of my posts for the month. It highlights the central theoretical contribution of my dissertation.

And with that “Who-Shot-J.R.”-style cliffhanger, I leave you… for now.

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Deviance in the Sociologist’s Assumptions About Privacy

When last we spoke before the Jewish New Year (Shanah Tova, u’metuka to all who celebrate and G’mar tov as we approach the Day of Atonement), we had only begun to touch on the sociologist’s assumptions about privacy. In that post, I used the example of the sociologist Robert Maxwell’s assumption when he was studying sexual practices and social mores that “private” automatically referred to a “secret” or “hidden” space. I do not think, and did not mean to imply, that Professor Maxwell set out to study privacy per se; rather, it is clear from his discussion and his notes that the private world was a hidden world separated by walls. That’s why he studied wall construction permeability when he wanted to determine the pervasiveness of sexual norms.

The limitation to spaces is only one problem with the traditional sociologist’s assumptions about privacy. Another has to do with secrets. An entire branch of sociology focuses on secrets, which may indeed be a subset of the entire world of so-called private things. But too often, sociologists burden their discussions of private secrets with a normative moral weight: that is, a secret is private, or must be kept private, because it is deviant.

In his seminal article, The Sociology of Secrecy and of Secret Societies, Georg Simmel concluded that privacy is a “universal sociological form” defined by hiding something. It is universal in that we do it all the time: If all relationships between people are based on knowing something about each other, keeping certain facets of ourselves hidden can define those relationships. This does not necessarily mean that the person who knows more about us is more correct in his assessment of who we are; rather, different pictures of us are true for different people. Secrecy, therefore, allows us to do things and maintain relationships we would not otherwise be able to in a world of complete knowledge.

Simmel’s theory has one distinct advantage over any conception of privacy based on spaces: his discourse on secret societies can help us understand when a secret has ceased to become private. Privacy-as-separation fails in part because it is too strict—privacy can be eroded when one other person gains access. For Simmel, a secret can maintain its private nature, its inherent secrecy, throughout a group of people when keeping the secret is part of the identity of that group. Members of secret societies “constitute a community for the purpose of mutual guarantee of secrecy.” They define themselves by engaging in rituals and through separation from the rest of society. This does not just happen in cults; social cliques turn their backs on others or deny conversation to outsiders and groups of friends maintain each others’ secrets all the time. In all cases, the group is defined by what it knows and it expresses its privileged status by closure.

A mentor mine, the sociologist Diane Vaughan, connected this conception of secrecy with intimacy in her study of how couples break up. “We are all secret-keepers in our intimate relationships,” Professor Vaughan argues. Secrets can both enhance relationships, by smoothing over differences or by creating the intimacy of co-conspirators, and contribute to their collapse, by allowing plans to be developed without open inspection, intrusion, consent, or participation from others. And Erving Goffman would agree that this type of secrecy is an important element of privacy. “If an individual is to give expression to ideal standards during his performance,” Goffman writes, “then he will have to forgo or conceal action which is inconsistent with these standards.” In this view, privacy is the concealment of things that contradict an individual’s public facade: the “private sacrifice” of some behavior will permit the performance to continue. This is what Goffman’s famous back stage is really for. It is not, as a spatial theory of privacy would suggest, a room, stall, or secluded place; rather, it is the locus of private behavior, of secrets. For example, servants use first names, workers laugh and take breaks, and management and employees may eat together and converse informally. In some cases, this culture is associated with a space; but it is what we do in the backstage, the secrets we hide there, that defines it.

But the central failure of assuming privacy as something to do with secrecy is the tendency to conceive of those secrets as discrediting, embarrassing, or, to use the sociologist’s term, deviant. Deviance refers to behavior that violates the norms of some group. A tilt toward deviance, in turn, places a severe limitation on using secrecy to justify a legal right to privacy: if our secrets are so discrediting, society would rarely, if ever, see a need to protect them.

Much of the sociological discourse on secrecy and intimacy as it relates to privacy devolves into a normative moral judgment about those secrets. Despite the fact that he professes to make no such judgments, Goffman’s view of secret, hidden behaviors, for example, has a decidedly negative bias. The back stage is littered with “dirty work” and “inappropriate” conduct done in “secret” if it was fun or satisfying in some way. From this introduction of the back stage, Goffman only further burdens it with a normative twist. People “lapse” in the back stage, drifting toward indecorous behavior. They laugh at their audience, engage in mock role-playing, and poke fun through “uncomplimentary terms of reference.” They derogate others and brazenly lie and keep “dark” secrets.” Behind involvement shields, individuals do “sanctionable” or “unprofessional” things, like nurses smoking in a tunnel or adolescent horseplay outside of the view of others. Goffman also points to the little misbehaviors—activities he calls “fugitive involvements,” no less—that you can engage in when outside the public view:

While doing housework: You can keep your face creamed, your hair in pin curls; … when you’re sitting at the kitchen counter peeling potatoes you can do your ankle exercises and foot strengtheners, and also practice good sitting posture. … While reading or watching TV: You can brush your hair; massage your gums; do your ankle and hand exercises and foot strengtheners; do some bust and back exercises; massage your scalp; use the abrasive treatment for removing superfluous hair.

Privacy, then, is about concealing bad things, not just concealment in general. The anonymity provided by privacy does not merely allow someone to do something different; rather, it allows him to “misbehave,” to “falsely present[] himself, or do the “unattractive” things inappropriate in the public sphere.

One of Goffman’s major works, Stigma, is entirely concerned with negative or inappropriate behavior. That may sound like an uninspired conclusion given the title, but what is most telling is not the mere recitation of stigmatizing activities and things, but rather the implication that the private sphere is defined by stigma. Stigmas are “discrediting,” “debasing,” and “undesirable.” They are “secret failings” that make us “blameworthy” and “shameful.”

It is hard to deny the moral dimension to this discussion of private behaviors, activities, and symbols. They are stigmatizing, at worst, or dissonant with normal social interaction, at best. In either case, there is a moral dimension that burdens privacy with an attendant profanity and that profanity does violence to our ability to protect privacy thus understood: if the private sphere is characterized by dark secrets, or behaviors and activities that society refuses to tolerate, it is unclear how a right to privacy could ever exist.

The Technocracy Prepares for War

MilitarismMany have blamed American militarism on George W. Bush. Whether cast as cowboy, crusader, or dupe of the Angler, the ex-president was a convenient scapegoat. By 2008, voters felt comforted that neither the technocrat Obama nor the veteran McCain would recapitulate the tragedy of Iraq. And yet here we are, five years later, with both men uniting behind another “intervention.”

With the Bush bogeyman gone, the new war drive raises deep questions about the US political system. The Syria proposal is so at odds with what the American people want, what the world appears to want, and what even many of its intended beneficiaries want, that the question arises: what does the Administration know that we don’t? What gives them confidence that the US can accomplish its “three missions” in Syria? Andrew Bacevich puts the question plainly:

If you think back to 1980, and just sort of tick off the number of military enterprises that we have been engaged in that part of the world, large and small, you know, Beirut, Afghanistan, Iraq, Yemen, Somalia — and on and on, and ask yourself, ‘What have we got done? What have we achieved? Is the region becoming more stable? Is it becoming more democratic? Are we enhancing America’s standing in the eyes of the people of the Islamic world?’ ‘The answers are, ‘No, no, and no.’ So why, Mr. President, do you think that initiating yet another war in this protracted enterprise is going to produce a different outcome?

The other “big story” of the summer helps explain the hubris. If you had access to an intelligence apparatus as pervasive and expert as NSA/DIA/CIA/NGA et al., would you think you were missing anything? The lesson of history is that conflict is unpredictable, and can quickly spin out of control. But the dream of mass surveillance is mastery and control. Precrime, prewar, all manner of incipient evils: with enough anticipatory knowledge all can eventually be modulated away and conquered.
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Unintended Consequences, Snowden Edition

One of the legal academy’s top thinkers on matters of encryption and privacy (Michael Froomkin) has this to say today about the latest bombshell NSA revelations:

I used to say, we don’t really care if the NSA is reading our traffic, because if they are, the secret is so valuable they won’t waste it on anything but the most important national security matters. The Snowden revelations suggest that wasn’t completely right — there was some information sharing with civilian domestic law enforcement, although it was obfuscated in ways that undermined the constitutional guarantee of the right to confront witnesses against you. More importantly, the fact of the Snowden revelations mean that the cat is out of the bag, so the disincentive to use the information will be greatly reduced.

In other words: what’s the best way to eviscerate privacy protections that are adjudicated on the basis of expectations of privacy? Lower everyone’s expectations.

Fine Print as “Surrealist Masterpiece”

PipeFollowing up on the last post, I just wanted to recommend this essay on the nature of fine print in today’s society:

The Treachery of Images[,] probably Magritte’s most famous [painting], shows a well-rendered pipe above its own textual disavowal: “ceci n’est pas une pipe” – or, “this is not a pipe.” In the most obvious reading of the painting, Magritte is said to be pointing out the unbridgeable divide between representation and reality.

Contracts and (particularly) advertisements that use fine print operate on a similar level. The ad’s loudly stated, carefully worded attractions are representations of a proposed deal, the legitimacy of which the fine print discretely disavows. “This is not the deal,” the fine print says. On the subject of Magritte’s painting, Foucault speaks of an “operation cancelled as soon as performed,” a line that might as easily apply to advertising that offers deals too good to be true.

Foucault’s second reading of The Treachery of Images is a little subtler. He suggests that what the sentence “ceci n’est pas une pipe” actually refers to is itself: “this is not a pipe” is not a pipe. In recent years it has become common for fine print to include “unilateral amendment provisions” that entitle the company to change the terms of the deal at anytime as long as they give you written notice. In such cases, the fine print is also referring to itself when it whispers “this is not the deal.”

When people ask me why I’m critical of “notice and consent” in privacy law—well, this is why. The language in so many of these “contracts” is so one-sided, and so open to change over time, that trying to “control one’s data” is a mug’s game.

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Introductions and the Sociology of Privacy

It is always a pleasure to join the Concurring Opinions community, one that I find supportive and tough, insightful and witty. I hope to contribute to ongoing discussions, raise a few eyebrows and bring some new perspective to issues of great concern to us all. Thanks to the incomparable Danielle Citron and the Con-Op community of leaders for having me on this month, and thank you in advance to all the readers for indulging my interest in sociology and privacy.

That is what I’d like to write about this month. My research is on the law and sociology of privacy and the Internet, but I am particularly concerned with the injustices and inequalities that arise in unregulated digital spaces. This was the animator of my previous work on bullying and cyberharassment of LGBT youth. This month, I would like to speak more broadly about how sociologists (I am completely my Ph.D. in sociology at Columbia U) talk about privacy and, by the end of the month, persuasively argue that we — lawyers, legal scholars, sociologists, psychologists, economists, philosophers and other social scientists and theories — are, for the most part, thinking about privacy too narrowly, too one-dimensionally, too pre-Internet to adequately protect private interests, whatever they may be. But before I get there, let me start small.

Many of us are familiar with the work of legal and economic privacy scholars, from Dan Solove to Alessandro Acquisti, from Jeffrey Rosen to Larry Lessig and Julie Cohen. All incredibly smart and insightful academics who have taught me much. But many are less familiar with sociologists like Robert J. Maxwell (not to be confused with the Robert Maxwell who produced “Lassie”) who’s work I would like to discuss briefly. I argue that Maxwell’s work evokes a typically narrow conception of privacy too common among sociologists: that privacy is, at best, about mere separation from others and, at worst, about the space for deviance.

Maxwell wanted to know about the presence of premarital sex in preindustrial societies. So, using an established data set including all sorts of details about these societies, Maxwell decided to look at the connection, if any, between sexual norms and, of all things, the permeability of wall construction materials. The codings for whether sex was allowed ranged from “premarital relations not allowed and not sanctioned unless pregnancy results” to “insistence on virginity; premarital sex relations prohibited, strongly sanctioned in fact rare.” Wall material codings ranged from the relatively impermeable “stone,” “stucco,” “concrete” and “fired brick” to “nonwalls” (literally, no walls, or temporary screens). He was working off the glass houses hypothesis — people who live in glass houses will not throw stones. Therefore, he thought that the more permeable the wall, the less rigid the antisex norms.

He was right.

He found that there was inverse relationship between the permeability of the materials used in wall construction and the rigidity of the norms regulating premarital sex for women.

The data provide a simple, though imperfect, proxy for talking about privacy in a discrete social unit. Walls are barriers to knowledge about what’s going on behind them (though, not impenetrable barriers, see Kyllo v. United States, 533 U.S. 27 (2001) (heat sensors used to pierce the wall of a home)). Strong anti-premarital sex norms existed in communities that could afford to have them, i.e., communities that had impenetrable walls to create hiding spaces. Communities without walls or hiding places more likely had their members have sex out in the open or, at least, in view of others. They could not afford or were not able to have strict antisex norms.

This tells us two things about how sociologists study privacy.

First, sociologists tend to think about the private as separate from the public and indulge in an oft-used spatial analogy. In fact, they’re not alone. Much of the social science literature uses the rhetoric of spaces, territories, walls, and other indicators of literal separation to support theoretical arguments. For example, Joseph Rykwert, an historian of the ancient world, argued that there was a direct correspondence between ancient conceptions of privacy and the women’s rooms in the home, on the one hand, and public behavior and the men’s rooms, on the other. The distinction in the home was literal. In his work on secret societies, Georg Simmel not only argued that “detachment” and “exclusion” were necessary for the success of a secret organization, but analogized the role of the secret to a wall of separation: “Their secret encircles them like a boundary, beyond which there is nothing.” Erving Goffman, a preeminent sociologists whose work almost every undergraduate reads in a Sociology 101 course, built his entire microsociology theory of how people behave in public around a theatrical conceit that distinguished between the “front stage,” where the action happened, and the “back stage,” where the actors could kick back. And so, when the Maxwell wanted to study sexual intimacy in pre-industrial societies, he chose to study wall construction, material permeability, and hidden spaces to determine if there was a relationship between intimacy norms in the greater society and private behavior.

But conceiving of privacy as sequestration or as a hidden space has its limits. Neither Goffman nor Simmel ever really meant their analogy to be put into practice. Both wrote much about how privacy could exist in public, in crowded rooms and when you around many other people. And yet privacy-as-sequestration in a space permeates the law of privacy, from the continued sanctity of the home to old cases like Olmstead v. United States, 277 U.S. 438 (1928), that hinged privacy invasions on an actual, physical trespass. Some sociologists appear to be guilty of the same lack of imagination that Justice Brandeis called out in his Olmstead dissent: “The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

The second thing this approach to the study of privacy tells us about sociologists and privacy is that they, and many other scholars, burden privacy with a moral dimension. They associate privacy and private places with deviance. This is where I will pick up in my next post.