04/11/2014 10:07 pm ET | Updated Jun 11, 2014

'Privatization' Is Not 'Privacy'


Author's note: I had the privilege on April 4 of delivering the following remarks as part of a panel on "Creating the Politics of Privacy," a session of the capstone conference for Ohio State's 2013-14 series of campus-wide programs on the distinction between public and private.

America's cultural turn in recent decades toward a glorification of the private and a denigration of the public has coexisted with what quite obviously is a deterioration in privacy. As individuals, we have dramatically less capacity than in earlier decades to control information about even the most personal aspects of our lives. This is not just historical coincidence. The cultural turn to the "private" has actually hurt privacy.

What I mean by a cultural turn is that, for the last 35-ish years, U.S. law and politics have moved away from the public-regarding orientation of the New Deal and its programmatic outgrowths and toward the individualist orientation of Reaganite small-government conservatism. We can see these moves in a variety of ways that implicate the private/public distinction. For example, we know that public institutions, such as schools, simultaneously create both public value and private value. They help both to benefit society through an educated citizenry and to prepare individuals for economic self-sufficiency. Yet our public policy toward schools has increasingly emphasized only their private value as providing persuasive reasons for their support.

Likewise, private action simultaneously has both private and public impacts. What I do as an individual both serves my personal needs and gratifications and imposes externalities on others. Not all externalities are positive. Yet courts and politicians have increasingly resisted treating negative externalities as a sufficient justification for regulation. Supreme Court decisions limiting Congress' powers to keep guns away from schools or to provide federal remedies for domestic violence are perfect examples. The court's 2012 decision that Congress lacked power under the Commerce Clause to compel the private purchase of health insurance was based on legal arguments that earlier courts would have rejected out of hand.

To understand how these developments have hurt privacy, it is helpful to note that both legal and ordinary discourse commonly use the concept of a private/public distinction to mean quite different things. When we talk about the private/public distinction, we sometimes mean to refer to what might better be called the privacy/publicity distinction. This is a distinction often seen in terms of categories of information. Some information, personal information, we are entitled to keep confidential, or at least closely under our control. Other information about us is public. Third parties -- indeed, society at large -- are entitled to know and to disseminate such information.

The private/public distinction is often used, however, to mean something analytically different. It refers to a distinction in the legitimate locus of power that might best be called the private/governmental distinction. That is, there are activities in which we engage in which society presumes that everyone is entitled to govern their own behavior. People generally regard raising families or running businesses as paradigm examples. To various degrees, our behavior in these domains may be constrained by law, but the default position is individual autonomy. There are even aspects of our autonomy -- choice of religion, for example -- that the Constitution forbids government to constrain. "Private," as conceived by the private/governmental distinction, has no necessary connection to secrecy or intimacy. When we say a shopping center is private property, we refer to its governance, not its confidentiality.

Governmental action, of course, is distinctly different from private action. Only persons chosen through constitutionally approved processes are entitled to wield government power. That power is subject to constitutional limits. Its exercise is subject to mandatory norms of equality and due process. Notably, the Supreme Court in the mid-20th century increasingly identified a variety of private acts so entwined with government as to become "state action" also subject to mandatory constitutional norms. The paradigm case would be private ownership of a so-called "company town." The Court has now significantly retreated from that position, with the consequence that large swaths of what had once been viewed as inherently governmental functions are increasingly turned over to private hands, with far less public accountability. Private prisons are the perfect example.

So how has the cultural turn favoring the private in the private/governmental distinction weakened the cause of privacy in the privacy/publicity distinction?

First, vast quantities of information we instinctively put on the privacy side of the privacy/publicity distinction are now in the hands of third parties who enjoy their own presumption of autonomy under the private/governmental distinction. That is, if a firm operating a social network or selling merchandise online possesses information about me, they are entitled -- unless forbidden by law -- to use that information as they see fit. This includes highly personal information, such as information about the books and movies I like, the identities of friends and family members, the history of my pharmaceutical purchases, and the like. What I experience as a compromise of privacy is, to the firm, an exercise of its liberty.

Second, Facebook's or Google's or any other firm's entitlement to use my data as it chooses is legitimated by the fetish we have made of personal choice as justifying the firm's freedom to use my data in whatever manner I have supposedly agreed to. I have chosen, that is, to click "I agree" when presented with a chance to read the firm's terms and conditions of service. It is well known, of course, that hardly anyone reads or is familiar with the terms and conditions for which they click "agreement." Most people understand that in refusing to volunteer our data as these firms require, we would be excluding ourselves from major forums within the public sphere. We would estrange ourselves from information flows that are invaluable to our participation in society. We would deny ourselves services all but essential to the effective transaction of daily life. If the government insisted on access to personal data as a precondition for speaking in a so-called public forum, such exclusion would be subject to First Amendment challenge. But because of the private/governmental distinction, the First Amendment extends the liberty of private firms to regulate their own public forums; it does not restrict corporate prerogative in our favor.

These two points strongly suggest that reemphasizing the importance of the public or the governmental in our conceptions of the private/public divide might be helpful in protecting privacy because such a cultural move would legitimate regulating data-holding private firms in order to mitigate the negative externalities of their data uses. We could shift the locus of power regarding "terms and conditions" of data use away from unaccountable private actors and toward relatively more accountable government actors.

But that's only part of the problem. The most obvious material factor facilitating the breakdown of personal privacy has been the evolution of new technologies of surveillance. Surveillance has turned out to be a more pervasive government activity than most people understood prior to the Edward Snowden leaks. Might a cultural turn back toward the public side of the private/public distinction not exacerbate that problem? Aren't we better off, for example, when the government proposes -- as the president now has done -- that information potentially relevant to national security investigations be held by private firms, rather than by government agencies, and searchable only through court order? How could a cultural turn back to the governmental side of the private/public distinction possibly help that problem?

As I have already noted, the government is subject to limitations that private companies are not. So long as the NSA is gathering and storing information, it is subject to constitutional limitations and to judicial and congressional oversight. Nothing equivalent applies to private firms holding personal data. NYU law professor Kathy Strandburg has recently urged with some cogency that the NSA's collection of bulk communications metadata violates our First Amendment freedom of association. Whether or not that argument prevails, no such argument can hold for telecom companies because they are not subject to the First Amendment.

But I wish also to offer a more speculative but perhaps deeper point. The cultural turn toward the private has reinforced our tendency, even as citizens, to evaluate the impacts of government data practices mostly in terms of our individual welfare. If I am not breaking the law, the saying goes, why worry? But the most powerful arguments for personal privacy may not be the arguments based on individual welfare but rather on the threat to democracy posed when we conduct our lives under constant surveillance. My colleague Amna Akbar has written powerfully about how the surveillance of Muslim communities in the United States has led to the impoverishment of political and religious discourse in those communities:

Muslims know they are being watched. Muslims feel pressure to signal loyalty to American identity over their Muslim identity or else risk signaling terrorist propensity. Muslims are afraid of being too Muslim and therefore labeled anti-American, extremist, radical. Instead of speaking up, many Muslims have shut up.

We would be foolish, I think, to doubt that a regime of pervasive surveillance will eventually have a desiccating impact on our political life even more widespread than this.

If I am right, then a reenergized recognition of the importance of government in our lives could help ameliorate government policies that diminish personal privacy because that recognition would motivate us as citizens to regard privacy as a public, not just private, good. We would care more deeply about the quality of government because we would take more seriously the possibility of government as a positive force. Our public-regarding assessment of privacy challenges would weigh more heavily surveillance's democratic, not just individual, impacts. For this reason, as well as because of my anxiety about largely unregulated private governance over my personal information, I believe that "privatization," as both a cultural and institutional phenomenon, hurts the cause of privacy. Perhaps surprisingly, a cultural and institutional recommitment to the collective good might help it.

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