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Law and the philosophy of privacy
 9780415572439, 9780203516133, 0415572436

Table of contents :
Cover......Page 1
Title Page......Page 4
Copyright Page......Page 5
Dedication......Page 6
Table of Contents......Page 8
Acknowledgements......Page 12
Introduction......Page 14
Approaches: philosophy and law......Page 16
Chapter summaries......Page 17
Bibliography......Page 21
Introduction: ‘the liberal canon’......Page 23
Thomson and Fried: appropriations of Locke’s “property in the person”......Page 24
Schoeman and Bloustein: conversations with Kant......Page 33
Cohen......Page 40
Pentland......Page 41
Bibliography......Page 43
Introduction......Page 46
Privacy in common law: background......Page 47
Privacy as intimacy: race and class......Page 51
Warren and Brandeis......Page 54
European law and privacy......Page 58
Vogel and Pateman......Page 62
Bibliography......Page 63
Introduction......Page 66
Autonomy: Mill, Kant and the sublime......Page 68
Battersby on Kantian autonomy......Page 69
Kant’s hero and his opposites......Page 73
“Impossible autonomy”: Friedman, Battersby and Nedelsky......Page 76
Nedelsky’s relational autonomy......Page 78
Gordon Hull: privacy and neo-liberalism......Page 80
Spinoza: different boundaries......Page 85
Answering Cohen’s questions......Page 86
Bibliography......Page 89
Introduction......Page 93
Pateman: Locke, property in the person and privacy......Page 95
Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Coleman......Page 101
Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Balibar......Page 106
Privacy, memory and life stories......Page 109
Law and the governance of the self with an interest......Page 113
Bibliography......Page 116
Introduction......Page 120
Privacy as property: Posner......Page 121
Posner on blackmail......Page 131
The commodification of privacy: Titmuss and Arrow......Page 133
“Contested commodities”......Page 139
Privacy......Page 143
Bibliography......Page 146
Floridi’s ethics: background sketch......Page 150
Floridi’s conception of privacy......Page 151
“Re-ontologizing the infosphere”: Floridi, Foucault and architecture......Page 152
“The informational nature of human beings”......Page 158
Extended cognition......Page 160
Envisaging personal data collection: “kidnapping not intrusion”......Page 162
Floridi’s conception of self......Page 166
Homo poieticus, homo faber and zōon politikon......Page 168
Bibliography......Page 170
Introduction......Page 174
Spinoza’s ontology and adequate knowledge......Page 176
The importance of the transmission of adequate knowledge......Page 181
An immanent ethics of privacy......Page 184
Freedom, free speech and adequate knowledge......Page 186
(a) Sacrificing individuals or groups, for the greater whole......Page 187
(b) Berlin: Spinoza as justification for imposing adequate knowledge......Page 190
Applications of immanent ethics to privacy......Page 194
(a) Subordination and its effects on the transmission of adequate knowledge......Page 195
(b) Laws that undermine the communication of adequate knowledge......Page 197
Bibliography......Page 199
Setting the scene......Page 204
Autonomy and privacy......Page 207
Privacy as property: Locke and Posner......Page 208
Spinoza applied to commodified views of privacy......Page 212
Reconceptualising privacy......Page 213
Bibliography......Page 215
Index......Page 218

Citation preview

Law and the Philosophy of Privacy

Situating privacy within the context of political philosophy, this book highlights the way in which struggles concerning the meaning of privacy have always been political. Different conceptions of privacy are here shown to involve diverse assumptions about ontology: our conceptions of self, culture, society and communication. Privacy theory’s debt to Locke, Kant or Mill, and what is at stake in their conceptual frameworks, is examined. The extent to which the term “privacy” has been used to the detriment of – and to create – weaker parties in marriage, in the workplace and now as citizens (or non-citizens) and consumers, as well as employees, is also demonstrated. In contrast, Janice Richardson pursues the relevance of Floridi’s philosophy of information, before turning to her application of Spinoza, the philosopher of communication, in order to outline a more useful framework through which to think about privacy today. The book will be of interest to those working in political philosophy, feminist philosophy, law, the philosophy of information, sociology, media, and cultural studies. Janice Richardson is an Associate Professor in Law at Monash University. She is author of The Classic Social Contractarians (2009) and Selves, Persons, Individuals (2004); the co-editor of two books in Routledge’s ‘Feminist Perspectives’ series; and a contributor to: Angelaki, Law and Critique, Feminist Legal Studies, Minds and Machines.

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Law and the Philosophy of Privacy

Janice Richardson

First published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 a GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Janice Richardson The right of Janice Richardson to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Richardson, Janice, 1961- author. Law and the philosophy of privacy / Janice Richardson. pages cm Includes bibliographical references and index. ISBN 978-0-415-57243-9 (hbk) — ISBN 978-0-203-51613-3 (ebk) 1. Privacy, Right of. 2. Law—Philosophy. I.Title. K3263.R535 2015 342.08'58—dc23 2015011533 ISBN: 978-0-415-57243-9 (hbk) ISBN: 978-0-203-51613-3 (ebk) Typeset in Baskerville by FiSH Books Ltd, London

For my mother, Mary Richardson

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Contents

Acknowledgements

xi

Introduction Approaches: philosophy and law 3 Chapter summaries 4 Bibliography 8

1

1

Defining privacy: the contemporary ‘liberal canon’ and its debt to Locke, Kant and Mill 10 Introduction: ‘the liberal canon’ 10 Thomson and Fried: appropriations of Locke’s “property in the person” 11 Schoeman and Bloustein: conversations with Kant 20 Cohen contra Pentland: Mill and individuality 27 Cohen 27 Pentland 28 Bibliography 30

2

Privacy and the law: the background Introduction 33 Privacy in common law: background 34 Privacy as intimacy: race and class 38 Warren and Brandeis 41 European law and privacy 45 Vogel and Pateman 49 Bibliography 50

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3

Autonomy, selfhood and privacy Introduction 53 Autonomy: Mill, Kant and the sublime 55

53

viii

Contents

Battersby on Kantian autonomy 56 Kant’s hero and his opposites 60 “Impossible autonomy”: Friedman, Battersby and Nedelsky 63 Nedelsky’s relational autonomy 65 Gordon Hull: privacy and neo-liberalism 67 Spinoza: different boundaries 72 Answering Cohen’s questions 73 Bibliography 76 4

Locke: privacy, property in the person, memory and selfhood Introduction 80 Pateman: Locke, property in the person and privacy 82 Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Coleman 88 Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Balibar 93 Privacy, memory and life stories 96 Law and the governance of the self with an interest 100 Bibliography 103

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Privacy as a commodity: Richard Posner Introduction 107 Privacy as property: Posner 108 Posner on blackmail 118 The commodification of privacy: Titmuss and Arrow 120 “Contested commodities” 126 Privacy 130 Bibliography 133

6

Philosophy of information and privacy: Luciano Floridi 137 Introduction 137 Floridi’s ethics: background sketch 137 Floridi’s conception of privacy 138 “Re-ontologizing the infosphere”: Floridi, Foucault and architecture 139 “The informational nature of human beings” 145 Extended cognition 147 Envisaging personal data collection: “kidnapping not intrusion” 149 Floridi’s conception of self 153 Homo poieticus, homo faber and zo¯on politikon 155 Bibliography 157

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ix

Spinoza: an immanent ethics of privacy 161 Introduction 161 Spinoza’s ontology and adequate knowledge 163 The importance of the transmission of adequate knowledge 168 An immanent ethics of privacy 171 Freedom, free speech and adequate knowledge 173 (a) Sacrificing individuals or groups, for the greater whole 174 (b) Berlin: Spinoza as justification for imposing adequate knowledge 177 Applications of immanent ethics to privacy 181 (a) Subordination and its effects on the transmission of adequate knowledge 182 (b) Laws that undermine the communication of adequate knowledge 184 Bibliography 186 Conclusion Setting the scene 192 Autonomy and privacy 194 Privacy as property: Locke and Posner 195 Spinoza applied to commodified views of privacy 199 Reconceptualising privacy 200 Bibliography 202

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Index

205

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Acknowledgements

I would like to thank my partner Jon Rubin for all his help, support and patience. This is not only for taking away the sad encounter that is referencing but also for all our interesting discussions and his thoughts and ideas about the book. Whilst not directly involved in the book, I would also like to acknowledge the joyful encounter that is the Melbourne Spinoza Reading Group: Peter Barden, Justin Clemens, Bryan Cooke, Joseph Hughes, Joeri Mol, Chris van Rompaey, Lara Stevens and Timothy Laurie and, of course, Jon Rubin. I would also like to acknowledge my old friend, Tom Huggon, playing on Skype.

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Introduction

In the toilets in my favourite pub, amid the appreciations of various parts of human anatomy and declarations of love, is scrawled the line: “Transparency for the powerful, privacy for the people”. The phrase is succinct. It speaks to a common concern that is now both international and local. Its appearance is of its time, or perhaps a little late. Recognition that our experience of privacy is intimately related to power and hence politics was not discussed in much of the traditional “privacy canon” and yet is obvious today. Above all, the reference to “the people” registers that privacy is being undermined in ways that affect all of us in different capacities: as employees, as consumers and as citizens or residents, as well as those in more marginal positions such as welfare recipients, prisoners and refugees. The aim of this book is to examine the political philosophies and ontologies that underlie the way that privacy has been experienced and described; to consider what is at stake in these frameworks; finally to suggest theoretical concepts that are potentially more fruitful. These ontologies involve, not only how we think about information but also how we envisage ourselves, our conceptions of “who we are”. I trace the development of struggles over privacy by examining the history of political thought, along with illustrations of how ideas about privacy have been influenced by (and, in turn, have influenced) legal and other power relations. As such, this book does not add to the many technical or legal suggestions as to how intrusions upon privacy should be regulated in specific areas of life. It delves beneath and beyond these to trace the assumptions about privacy and selfhood on which these conflicts are based, along with the political philosophies in which they are situated. The dominant image of privacy in the West has been liberal, drawing on an idea of a private sphere in which the state (and others) could not intervene. Today this image is challenged by a number of different political frameworks, ranging from those that I argue are problematic, specifically neo-liberalism, (which, as Wendy Brown (2003) has argued, has come to displace liberalism in some countries, particularly in the US) through to those I find promising. These include the new: Luciano Floridi’s insights

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from the philosophy of information;1 and, in particular, the old: the philosopher of the Radical Enlightenment, Baruch, or Benedictus Spinoza.2 Spinoza does not write about privacy. I apply his work to show how it can guide us in this area. I am able to do so because Spinoza is a philosopher for whom communication is central (Balibar 1997). Spinoza was born in the same year as Locke and his work has never had the overt level of influence that Locke’s has enjoyed, though there has been a contemporary resurgence of explicit interest in him. Whereas both liberalism and neo-liberalism both claim Locke as their inspiration, Spinoza’s historically neglected and anathematised work provides an alternative to Locke’s individualism. My aim, therefore, does not involve trying to define privacy, outside of a particular context. Instead, I look back at the history of political (and ontological) thought. This gives me the tools both to produce ways of thinking differently about privacy, and to understand what is at stake in the ways in which privacy arguments are framed today. In particular, these arguments depend upon how we think about selfhood in relation to others. There are numerous definitions of privacy. While I consider these definitions within my initial discussion of what I acknowledge as the “canon of philosophy of privacy”, this search for the essence of privacy is not my approach. I am less concerned with teasing out a legal or moral definition, than looking at the philosophical underpinnings in diverse contexts; to ask: what is at stake in the different views we have of privacy? In any event, courts tend to ignore ahistoric definitions of privacy, keeping their options open by producing circular definitions, such as the UK courts’ test: “Would a reasonable person in the position of the claimant have a reasonable expectation of privacy in this situation?”.3 Today, the term ‘privacy’ often denotes informational privacy. Historically, the term privacy has been applied to spheres of life: the domestic home or to private interests in relation to the market. In relation to the domestic sphere, the public/private divide itself has altered as a result of changes in women’s status. I look at the way in which the term ‘privacy’ is employed within these different (sometimes overlapping) contexts and the power relations and images of self that are implicated in such views of privacy.

1 2

3

Floridi has written an immense amount, but his three major monographs are: (2011; 2013; 2014). Both mean ‘blessed’ in Hebrew and Latin respectively. Spinoza adopted the Latin version after his excommunication from the Jewish community in 1656. Throughout this book, the three main texts of Spinoza that I will be using are Curley’s translation of the Ethics (Spinoza 1985), the recent Cambridge translation of the Theologico-Political Treatise (Spinoza 2007) and Shirley’s translation of the Political Treatise (Spinoza 2002). Campbell v Mirror Group Newspapers [2004] UKHL 22.

Introduction

3

Approaches: philosophy and law My analysis is philosophical – particularly focused upon modern political thought and the part that privacy plays in the ways in which social and political relations are envisaged. The role of privacy in law is relevant to this and therefore is employed at various points to illustrate a position. I draw from different areas of philosophy: continental philosophy, feminist philosophy, history of political thought and the philosophy of information. My belief, as evidenced by this book, is that when focused upon a particular problem, these different areas of philosophy sometimes give rise to complimentary ideas. To take one example: Étienne Balibar (situated within the continental tradition) and Janet Coleman (philosopher of the history of political thought) produce similar (and as I demonstrate) compatible conceptual frameworks of Locke, that are unusual in combining his Two Treatises on Government (1988) and An Essay Concerning Human Understanding (1993). While I think that contemporary feminist philosophy offers a number of insights on privacy, these are integrated in context, rather than being artificially severed from the diverse arguments to which they contribute. For example, feminist philosophy is relevant, not only to the discussion of the courts’ construction of the domestic sphere, discussed in Chapter 2, but also to conceptions of self and autonomy in Chapter 3 and ways in which women may be humiliated for having their voices heard, discussed in Chapter 7. Given the extent to which law is employed to illustrate philosophical arguments, this is a book for lawyers as well as an intervention within political philosophy, conceptions of self and the philosophy of information. For lawyers who are used to the idea that the law is always trying to catch up with current technological and political developments, it is of interest to hear calls for philosophers to produce new conceptual frameworks to deal with these issues. Ultimately, I aim to do this by drawing upon a line of thought that derives from Spinoza as a radical, subterranean alternative to Locke. Spinoza’s position suggests an ethical basis upon which to answer the question of what information should be subject to privacy laws and what information must be communicated. Floridi, writing within contemporary philosophy of information, views our private information as constitutive of “who we are” and therefore characterises the reproduction of personal information out of context by analogy with kidnap. For Spinoza, “who we are” depends upon the complicated interaction between, on the one hand: the way in which we can be diminished by sad encounters with other minds or bodies that perpetuate sad passions and superstition; but on the other hand: become more virtuous, or thrive, as a result of joyful encounters that aid the attainment of adequate knowledge about the world and action within it. For both Floridi and Spinoza, communication is central to their conceptual frameworks in ways that are derived from their ontology. This line of

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thought lies in stark contrast with neo-liberal treatment of privacy as if it were a type of property and their extension of the market into more areas of human life. I also argue that Spinoza offers a framework in which to understand the impact of neo-liberalism, not as an ideology but as both ideas and bodily practices that work in parallel. For the majority, these neoliberal ideas and practices of privacy, diminish them and their abilities to act in the world.

Chapter summaries In the first two chapters, I introduce traditional ways in which privacy has been conceptualised and consider how these ideas are still employed today. These two chapters provide a background, against which I then examine privacy in terms of its liberal roots in Chapters 3 and 4, consider neo-liberalism developments in Chapter 5 and offer alternative approaches in Chapters 6 and, in particular, in Chapter 7. In Chapter 1, I introduce privacy in the context of the US dominated ‘canon’ of privacy theory to argue that these understandings of privacy mainly boil down to applications of (or, at least, conversations with) three modern liberal political philosophers: John Locke, Immanuel Kant and John Stuart Mill. Part of my aim is to show the extent to which liberal assumptions dominate these views of privacy. This allows me to explore areas of tension within the theoretical frameworks, along with the different assumptions that are made about selfhood and our relationships with others. While liberal thought dominates the canon, it is undermined by neo-liberal images of the self as an entrepreneur, owner of one’s own human capital. Part of the aim of the book, is to demonstrate that there are better ways of conceptualising privacy. Whereas the first chapter is focused mainly upon privacy, in relation to the information about ourselves that we produce, the second illustrates some of the other ways in which appeals to privacy have helped to structure power relationships, particularly in marriage and employment. In this chapter, I focus more on marriage and take examples from both common law and European civil codified law, to discuss the political implications of the way that privacy was constructed to justify different power relations: at a micro-level between men and women, which also involved issues of race and class; and, at a macro-level between the state and Church. This illustrates the impossibility of being simply for or against ‘privacy’ because such a stance is meaningless outside the historical and political conjunction in which it is employed as an argument and the sense in which it is used. In the third chapter, I examine the relationship between autonomy and privacy, including arguments as to how to characterise autonomy and the extent to which it is possible to think of autonomy in relational terms. This, in turn, depends upon the way in which we conceptualise what it is to be human. The two terms, autonomy and privacy, are close in that they relate

Introduction

5

to the way that we consider the distance between self and other, which can be discussed in terms of both ontology and psychology. I compare Kant’s (2012; 1987; 2006) description of the autonomous person with his opposites: the figures of the vagabond and the woman and relate these to images of privacy. I then consider Battersby’s (1998) reworking of Kant’s framework and those of Nedelsky’s (2011) relational autonomy, which both undermine the idea of a self the derives from an image of being bounded against its outside, a common image of privacy. I extend Nedelsky’s critique of autonomy based upon the image of a bounded self by considering how this image can be employed as a technique of power. Hull (2014) draws from Foucault’s lectures on neo-liberalism to show how we can be positioned as “autonomous individuals” who are solely responsible for our own actions. When conceptualised in these terms, the demand for “privacy for the people” is depoliticised and understood merely as a market preference. I end this chapter by employing Spinoza to suggest a different way of thinking of autonomy. In Chapter 4 I look in detail at Locke’s contribution to our image of privacy and his conception of self. Historically, political theorists have concentrated on Locke’s Two Treatises of Government, treating his Essay Concerning Human Understanding as irrelevant. More recently, as mentioned above, two theorists from different areas of philosophy have independently drawn together his political and ontological arguments. I find this work useful to think about Locke’s understanding of privacy, which relates to his concept of self that is more complex than that of simply a self-owning individual. Janet Coleman (2005) employs an analysis of history of political thought to argue that Locke’s image of the appropriation of property is associated with his description of the appropriation of ideas. Both are necessary to continue to have a self that exists over time, which, for Locke, is one of the obligations that we owe to God. Balibar (from the continental tradition) examines the same area but adds the idea that there is another process by which we appropriate ourselves to ourselves, based upon his reading of Chapter 27 of the Essay Concerning Human Understanding (Balibar 2013a; 2013b). I view these theoretical contributions as compatible and draw together their theoretical positions and apply them to privacy. They are also compatible with Pateman’s (1988) important analysis of property in the person as a political and legal fiction rather than an ontological claim, that, she argues, produces relationships of subordination in modernity. I continue to trace the development of the idea of privacy as a commodity in Chapter 5 by considering Richard Posner’s (1978) analysis, based upon the claim that there is a market in both privacy and prying. The market approach to privacy – in which an individual is to view him or herself as an enterprise – leads him to argue, in general, against privacy rights for individuals but in favour of privacy rights for companies. This

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supposedly neutral position prompts Posner to argue in general for “privacy for corporations and the powerful and to undermine privacy for the people”, to misquote the demand, with which I started. I compare arguments against commodification of privacy and examine the empirical work on the way that markets may “crowd out” other ways of relating to each other. There are also times when ‘market rhetoric’ is employed by those in a weaker position, such as the elderly who want some social distance from their carers in order to maintain privacy (Case 2005). I argue that a nuanced approach is needed. It is not inevitable that the exchange of money always prevails as a way of understanding relations, although this is often the case. I then draw out the privacy implications of these positions. In the final two chapters, I detail conceptual frameworks that are not part of the privacy canon but that I find fruitful: Floridi’s philosophy of information and my application of Spinoza. In Chapter 6, I turn to a more recent development in philosophy: the philosophy of information. This is not simply an application of already existing philosophical ideas to the area of computer mediated communication. It draws upon different techniques, which include those of philosophy of computing, to create new concepts in relation to the recent problems that arise as a result of technological change. I consider the contribution of Floridi whose work on privacy is derived from his rethinking of ontology (Floridi 2006a; 2006b; 2006c). This contributes useful insights. I therefore illustrate in some detail how his work on privacy is derived from his broader framework; how it produces a particular view of “who we are” and how we relate to larger entities, such as societies but also to the whole of the informational environment. In Chapter 7, I apply Spinoza’s philosophical framework to the question of privacy today to suggest an answer to the question: what information about ourselves should be communicated and what should remain private? This is based upon his view that our ability to thrive (our virtue and way of life) is identical to our ability to become more active and to gain adequate knowledge of the world. The juxtaposition of Spinoza with Floridi’s philosophy of information is deliberate, as there are a number of important similarities, with political implications which I highlight. Both start with an ontology, with a view as to how to characterise existence and our place within it, in ways that are not anthropomorphic. Both theorise the importance of flows of information (the basis of knowledge) that are capable of changing “who we are” and the diverse lives we are capable of living. These theories lie in contrast with the image of selfhood of neo-liberals – associated with greater surveillance in the workplace that has migrated to all areas of life, including leisure. Finally, I conclude by considering how Spinoza’s framework can inform the different philosophies on which our diverse views of privacy are based. I should come clean that my favourite pub is no ordinary pub. It lies across the street from Trades Hall in Melbourne, where the eight hour day

Introduction

7

was first won. This represents a victory for employees that continues to be undermined with the aid of technology, producing struggles over employers’ ability to invade employees’ private lives. Employees not only struggle over the working day and their constant availability even when at home, but over the extent to which they are subject to intrusive surveillance and preinterview data mining, which in turn produces a risk of identity theft. Such attacks upon privacy also affects us as citizens (or residents), who are now subject to mass data collection. Doctorow (2014) has commented that – while the majority of the public were alarmed by the NSA’s mass surveillance – technology experts were shocked by the extent to which the NSA were willing to undermine technological security. It became clear from the Snowdon leaks that the NSA and GCHQ had programs (“Bullrun” in the US and “Edgehill” in UK) under which technology companies were “bribed, blackmailed or tricked into introducing deliberate flaws into their products so that spies can violate their users’ privacy” (Doctorow 2014, 163). The implications are more disturbing than this, however. Doctorow comments: The sabotage shocked so many technology experts because they understood that there was no such thing as a security flaw that could be exploited by “the good guys” alone. If you weaken the world’s computer security – the security of our planes and nuclear reactors, our artificial hearts and our thermostats, and, yes, our phones and our laptops, devices that are privy to our every secret – then no amount of gains in the War on Terror will balance out the costs we’ll all pay in vulnerability to crooks, creeps, spooks, thugs, perverts, voyeurs and anyone else who independently discovers these deliberate flaws and turns them into targets of opportunity. (Doctorow 2014, 163) Similarly, as consumers we know that every key stroke and web site visited can be subject to big data analysis, which can produce unforeseen consequences. There are also reports of laptop companies installing adware that would allow criminals to use ‘man in the middle’ attacks that would allow the stealing of passwords, credit card details etc. (Wakefield 2015) The phrase “Transparency for the powerful, privacy for the people” is actually a slight misquote but a fortuitous one in that “privacy for the people” rather than the original “for the weak” sounds like a demand by the people themselves, made by the woman who wrote it, rather than a political party (Wikileaks). This distinction may sound pedantic but beneath it is a view about “the weak” that is derived from my interest in Spinoza. While people

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may have very different abilities, weakness is not a fixed ontological state. As I will discuss, by drawing on Spinoza’s ontological framework, it is possible for individuals and groups to both increase and decrease their powers of acting and understanding; to thrive though change by increasing joyful encounters with the world. For this reason, the communication of information and knowledge between people is vital but so is privacy, the absence of which can undermine such flows of information. This is a difficult area, not only because of the different uses of the terms “privacy”, but also because it is not possible to err on the side of caution, both free speech and privacy being important values. They are values that can be conceptualised in different ways, owing an often unacknowledged debt to political theory, as I will start to explore in the next chapter on the “canon of privacy”.

Bibliography Balibar, Étienne. 1997. Spinoza: From Individuality to Transindividuality. Delft: Eburon. Balibar, Étienne. 2013a. Equaliberty: Political Essays. Durham: Duke University Press. Balibar, Étienne. 2013b. Identity and Difference: John Locke and the Invention of Consciousness. Edited by Stella Sandford. Translated by Warren Montag. London: Verso. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Brown, Wendy. 2003. “Neo-Liberalism and the End of Liberal Democracy”. Theory & Event 7 (1). doi:10.1353/tae.2003.0020. Case, Mary Anne. 2005. “Pets or Meat”. Chicago-Kent Law Review 80: 1129–50. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership Before and After Locke: Or, When Did Common Decency Become a Private rather than a Public Virtue?”. European Journal of Political Theory 4 (2): 125–45. doi:10.1177/ 1474885105050446. Doctorow, Cory. 2014. Information Doesn’t Want to Be Free: Laws for the Internet Age. San Francisco: McSweeney’s. Floridi, Luciano. 2006a. “Four Challenges for a Theory of Informational Privacy”. Ethics and Information Technology 8: 109–19. Floridi, Luciano. 2006b. “Informational Privacy and Its Ontological Interpretation”. ACM SIGCAS Computers and Society 36 (1): 37–40. Floridi, Luciano. 2006c. “The Ontological Interpretation of Informational Privacy”. Ethics and Information Technology 7: 185–200. Floridi, Luciano. 2011. The Philosophy of Information. Oxford: Oxford University Press. Floridi, Luciano. 2013. The Ethics of Information. Oxford: Oxford University Press. Floridi, Luciano. 2014. The Fourth Revolution: How the Infosphere Is Reshaping Human Reality. New York: Oxford University Press. Hull, Gordon. 2014. Successful Failure: What Foucault Can Teach Us About Privacy SelfManagement in a World of Facebook and Big Data. SSRN Scholarly Paper ID 2533057. Rochester, NY: Social Science Research Network. 10.2139/ ssrn.2533057. http://papers.ssrn.com/abstract=2533057.

Introduction

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Kant, Immanuel. 1987. Critique of Judgement. Translated by Werner S. Pluhar. Indianapolis: Hackett Publishing Co, Inc. Kant, Immanuel. 2006. Anthropology from a Pragmatic Point of View. Edited and translated by Robert Louden. Cambridge: Cambridge University Press. Kant, Immanuel. 2012. Groundwork of the Metaphysics of Morals. Edited by Jens. Timmermann. Translated by Mary J. Gregor. 2nd edn. Cambridge: Cambridge University Press. Locke, John. 1988. Locke: Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press. Locke, John. 1993. An Essay Concerning Human Understanding. Edited by John W Yolton. New edn., abridged/abridged and edited by John W. Yolton. London: Dent. Nedelsky, Jennifer. 2011. Law’s Relations a Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. Pateman, Carole. 1988. The Sexual Contract. Polity Press: Cambridge. Posner, Richard A. 1978. “An Economic Theory of Privacy”. Regulation 2: 19–26. Spinoza, Benedictus de. 1985. The Collected Works of Spinoza, Volume I. Edited and translated by Edwin M. Curley. Princeton: Princeton University Press. Spinoza, Benedictus de. 2002. “Political Treatise”. In Spinoza: Complete Works, edited by Michael L. Morgan, translated by Samuel Shirley. Cambridge: Hackett. Spinoza, Benedictus de. 2007. Theological-Political Treatise. Edited by Jonathan Irvine Israel. Translated by Michael Silverthorne and Jonathan Irvine Israel. Cambridge/New York: Cambridge University Press. Wakefield, Jane. 2015. “Lenovo taken to task over ‘malicious’ adware”. BBC News, 19 February. www.bbc.com/news/technology-31533028.

Chapter 1

Defining privacy

The contemporary ‘liberal canon’ and its debt to Locke, Kant and Mill

Introduction: ‘the liberal canon’ I start by considering some of the debates within the canon of privacy, not because I think that they represent universally valid insights but because they achieve the more modest aim of reflecting and crystallising the beliefs of a certain culture, mainly US dominated. I aim to illustrate how a selection of canonical privacy theorists can be situated within modern liberal political theory, drawing from either Locke, Kant or Mill. In later chapters I consider their conceptual frameworks in detail to show what is at stake in drawing from this liberal tradition and to examine other alternatives. Some of what I am classifying as belonging to the canon is rather old, given the speed at which technology is changing (and the impact of the law and economics movement, if the focus is the US). Nevertheless, these debates are still alive and are useful in that they illustrate some of the unspoken political presumptions on which definitions were based from the 1980s onwards. Judith Jarvis Thomson’s work, with which I start, is particularly interesting – not only because she sets the scene for much debate as to whether there is an independent moral right to privacy – but also because her examples are so telling. As I will explain, the sexual objectification and potential for violence that appear in her examples as peripheral to her argument, can be seen to undermine her central claim that privacy rights can be reduced to other rights, in particular those of property rights. After starting with Thomson, I then compare her work with Charles Fried, who is viewed as her opponent in that he argues that privacy is irreducible to other moral rights. Despite this overt opposition, his conception of self is very close to that of Thomson. Both Thomson and Fried view privacy as akin to property, with human beings as owners of their abilities. This is a position that owes a debt to John Locke, whose (more complex) conceptual framework I consider in detail in Chapter 4. I draw out this point by comparing Fried’s arguments with those of Kant, who, in the Metaphysics of Morals rejects the idea that any parts of a person can be treated as property:

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[A]cquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity. (Kant 1996, [278] §25, 97) I then compare other canonical theorists of privacy – Ferdinand Schoeman and Edward Bloustein – who draw from (or are in conversation with) Kant. I finish by examining the arguments of two contemporary theorists – Julie Cohen and Alex Pentland – who, in very different ways, are in conversation with Mill.

Thomson and Fried: appropriations of Locke’s “property in the person” It is now part of contemporary life – albeit subject to public disquiet – that there is a market in personal data. There may be pragmatic reasons for creating ways in which data is treated as the property of the “data subject” to which it pertains as this may offer a way of allowing individuals greater control over their data (Pentland 2014). However, there are problems with this viewpoint theoretically that may undermine such an approach as a long term solution. In this section, I will explain why the definition of privacy as a type of property fails to capture the importance of privacy and the way in which some private information is associated with “who we are”. Put simply: there is a moral, political and phenomenological difference between talking about “my car” and “my body” and the reference to “my information” is closer to “my body”; “a privacy breach is more easily comparable to a case of metaphorical abduction” (Floridi 2013, 50). The idea that we own parts of ourselves is common in our society and brings with it a number of disturbing aspects, such as our willingness to view ourselves as objects that can be manipulated, to be discussed in further detail in later Chapter 4 (on Locke) and Chapter 5 (on neo-liberal accounts of privacy in the “law and economics” movement). Floridi’s quotation will be discussed further in Chapter 6. Intertwined with the idea of privacy as akin to negative freedom, the “right to be let alone”, was the use of private property as a bulwark against state intrusion. The liberal state could not properly interfere with the private property of citizens nor with what went on in the home; I will examine this in detail in Chapter 2. Again, this reference to private property is associated with the idea that parts of ourselves can be treated as if they were property and hence treated as alienable commodities. When we are viewed as having “property in the person”, as discussed by Locke in Chapter 5, ‘Of Property’, of the Two Treatises of Government, we are viewed as having a kind of ownership over ourselves that has been defined as: the rights that a slave owner has over slaves in a slave owning society (G. A. Cohen 1995). The willingness to view privacy in terms of property, examined in this chapter, should be understood against this background.

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Thomson’s (1984) work provides a useful starting point because it represents a position in a debate to which many writers have responded. While her work has clear legal implications, Thomson focuses purely upon privacy rights as moral concepts. She argues that there is no point in attempting to find a definition of an underlying moral right to privacy – that is, some factor that all examples of invasions of privacy have in common – because these privacy rights are all derivative of other moral rights. The more basic moral rights are property rights or “rights of the person”, which are “analogous” to property rights. I will trace Thomson’s arguments in detail as she builds upon a number of examples, which, I will argue, undercut her central claim. In a curious illustration of privacy rights as derivative of property rights, Thomson gives an example of a man who has a pornographic picture in his safe. He wants to prevent others from seeing it, not because he is ashamed to have it but because he does not wish to share it. Thomson suggests that perhaps the fact of others seeing it may drain it of its power to please but that it would be “pretty mingy of him to keep it permanently hidden so that nobody but him shall ever see it” if it were “good pornography” (Thomson 1975, 299). However, she claims, it would not be morally wrong for him to refuse because his private property rights over the pornographic picture entail the moral right to exclude others from seeing it. The need to consider the person in the pornographic photograph, who is treated as a sexual object not a subject, is not merely peripheral to Thomson’s argument because it provides a counter-example to her claim. She argues that (assuming the man has not stolen the photograph) the owner’s property right in the photograph gives him complete moral rights over it. However, supposing that the pornography resulted from a surreptitious photograph to which the person in the photograph did not consent? Supposing it were “revenge porn”,1 a naked photograph taken by an aggrieved lover, who gave the photograph to its current owner without obtaining the consent of the person photographed? Even supposing it were a picture of a current or past lover of the owner of the photograph, given with consent, the idea that it would be ‘mingy’ to not pass it round fails to recognise the moral right to privacy of the person in the picture. The property ownership of the photograph itself (against the person who wants to see it) may not be in dispute but there are unrecognised privacy rights of the person objectified in the picture that run counter to this property ownership in Thomson’s example. Within her own framework, Thomson may concede that there is a right not to be photographed naked without one’s consent. She would no doubt claim that this right is also “analogous” to a property right, as illustrated by the next example. Her reduction of privacy

1

A phenomenon that has developed more recently but was already possible when Thomson was writing.

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to property rights would fail to allow her to distinguish the pornographic from a less intimate photograph. In summary, Thomson claims that, if someone were to try to see the pornographic picture (in this imaginative example, through the use of an x ray device to look into the safe where it is kept) then this action is morally wrong because it breaches the property rights that the owner holds over the picture. Nothing is added to this scenario, she argues, by evoking extra privacy rights. By analogy, Thomson then cites a number of possible scenarios in which there is interference with another’s body, including a curious example of someone sneaking into another’s bedroom while he is asleep and painting his elbows green. Crucially, for Thomson, the reason why it is wrong to do so is because the (now partially green) aggrieved party has a right not to have anyone interfere with his/her body; that this is akin to the property right that she has just described regarding the pornographic picture. As Rachels describes Thomson’s position: Thomson understands these rights as analogous to property rights. The idea is that our bodies are ours and that we have the same rights with respect to them that we have with respect to our possessions. (Rachels 1975, 331–332) Just as the man in Thomson’s example has a right not to have a picture that he owns peered at, so he has rights over his body. Again, Thomson argues that, although both examples raise privacy issues, they do not add anything to the moral claim that this intrusion is a wrong. This is because, Thomson argues, privacy is a derivative concept that is already covered by other moral rights. There are a number of problems with Thomson’s approach. Again, while it is easy to dismiss the point as peripheral to her aims, it is worth starting by considering the outlandish example. If I woke in the night to the sound of an intruder, assuming he is male, then my first thought would not be “Damn, is he going to paint my elbows green? Why am I being stalked by a Dadaist?” My worry would be whether I was to be subject to sexual violence. I do not believe this to be an aberrant reaction by women in our culture. Men may not feel threatened in the same way but would certainly be threatened by the risk of some physical harm. Again, this is relevant to Thomson’s central claim that privacy rights are analogous to “rights over the body”; that they are reduced to extended property rights. Property rights do not capture the concern we all have regarding bodily integrity.2 2

Even Richard Posner, whose neo-liberal analysis is discussed in Chapter 5, has admitted that his characterisation of rape as theft “will strike many readers as a limitation on the usefulness of that theory” (Radin 1996, 86 fn. 22; citing Posner 1992, 218), though note that Posner does not say that his theory is false.

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Thomson could argue that privacy rights are otiose because such sexual or other violence would be covered by other rights (i.e. the right not to be subject to such violence). Contra Thomson, overlapping rights do not make privacy rights superfluous if they capture an important human experience that is otherwise elided. The a priori collapsing of privacy rights into property right would also have the effect of closing down any discussion of areas of life that later develop as privacy problems, as has been seen by technological developments or that emerge as a result of changes in social mores. I can employ an example of an understanding of privacy that, like Thomson’s examples, is not limited to the exchange of information. Such a reduction of privacy rights to other rights would obscure the ironic example of women’s position in the home which has been highlighted by feminists. Historically, the “private sphere” was not private for women. They lacked “a room of one’s own” and were, in law, viewed as being sexually available to their husbands at any time. Rape within marriage is not usually viewed as a privacy issue and yet fits within definitions of privacy that work by setting boundaries regarding intimacy, to be discussed in the next chapter. Scanlon presciently makes a broader point that covers this example when he states: The foundations of privacy become a matter of practical concern when we are faced with open questions that are not resolved by our existing conventions. Such questions may be posed, for example, by the development of new technology, or by changes in social habits or relative values which present new conflicts or make our present conventions no longer seem reasonable. (Scanlon 1975, 321–322) Even if there is an overlap between privacy and other rights, it does not follow that privacy is derived from these and is otiose. It could be that these other rights derive from privacy or that they cover different ground. As I will discuss with regard to Charles Fried below and later Chapter 4 on Locke, Thomson’s emphasis upon property rights performs some additional political work. It constructs an image of an individual who has property in the person, who is viewed as owning his or her abilities, legal rights and, in this case, moral rights as if they were property. As I will now illustrate, this is an image of the individual that Thomson shares with one of her critics, Charles Fried. Charles Fried positions himself as an opponent of Thomson in that he is not convinced that privacy is superfluous just because such rights can always be described as property rights or rights that are analogous to them. However, when viewed from another perspective, he has much in common with Thomson in that he also relies upon a conception of our selves as

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owners of property in the person. Against Thomson, Fried points to an underlying rationale for all types of privacy rights. This is based upon his treatment of our intimate knowledge about ourselves as if such knowledge is a commodity. If it is given away too freely – by letting everyone know our secrets – then we will not have it as a resource to “spend” (his words) upon others with whom we want to be intimate. He states: The entitlements of privacy are not just one kind of entitlement among many that a lover can surrender to show his love. Love or friendship can be partially expressed by the gift of other rights – gifts of property or of service. But these gifts without the intimacy of shared private information, cannot alone constitute love or friendship. (Fried 1984, 211) So, we are envisaged as separate rights-holders, who only relate to each other by bestowing rights though gift or contract. These rights are our property and are comprised of all human attributes and abilities. Again, as with Thomson, a universal ahistorical claim is being made about what it is to be human. There is much work in political theory on such images of the individual as owner of “property in the person”. Liberals, drawing from a framework associated with Locke,3 promote a view of individuals who are respected by virtue of their self-ownership; that they are self-owners, with rights over their own abilities in contrast to feudal serfs or (historically) wives. However, as Carole Pateman (1988; 1989; 2002) illustrates, this way of viewing yourself was understood as involving commodification; that is, as viewing human attributes and abilities as if they are objects that can be exchanged in a market. For both Pateman and Marx, this legal fiction facilitates subordination between employer and employee. Pateman also extends this argument to consider a wife’s consortium (sex and housework) which was viewed differently from employees’ labour power in that they were not treated as the woman’s own property but that of her husband. Women remained viewed in terms of ‘natural’ unequal status until much more recently, as illustrated by the fact of rape within marriage not becoming illegal until 1991 in both the UK and Australia, for example. This decline in the premodern relations that structured family life and the resulting realignment of gender relations contributes to the change in our experience of privacy today. Fried’s image of human beings as separate, atomistic individuals is clear from the way that he envisages us as only able to form intimate relations based upon gift or contract. It is as if human beings are completely separate

3

I will look at Locke’s more complex conception of self in Chapter 4.

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from each other and need some way of coming together to form relationships. In the case of intimate relationships, the prerequisite is an exchange of private information. In Chapter 7, I will consider how privacy could be understood if the central figure of the Enlightenment had not been Locke but the more radical Spinoza who conceptualised a different and better view of individuality. Like Thomson, Fried gives helpful, though less imaginative, examples of his position. In one, he envisages a prisoner who is subject to constant surveillance, and argues that the prisoner would, as a result, be rendered unable to form intimate relations with others. This is not for the more obvious reason that the prisoner, his friends and lovers would be conscious of being watched and forced to see themselves through the eyes of another, thereby altering the experience; that surveillance would rob them of the ability to engage in “experiments in living” or would deny them respect as persons – to take a few examples of arguments for privacy, to be explored below. Instead, Fried argues that the intrusion has the effect of robbing the prisoner of his ability to own private information, which can form the basis of an exchange. He will have no ‘capital’ left to spend on potential intimates on which to ground a relationship. Fried’s analysis does not appear to distinguish between men and women. However, Rosen (2000) explains Fried’s argument in a manner that extends Fried’s position. Rosen explains (rightly) that, for Fried, romantic love cannot occur without intimacy, which in turn requires disclosure of personal information that is not shared with others. Immediately after this explanation Rosen makes a curious comment: In her story “The Other Two,” Edith Wharton coolly describes a twicedivorced woman who finds herself serving tea to all three of her husbands at the same time. “She was ‘as easy as an old shoe’ – a shoe that too many feet had worn,” Wharton writes. “Her elasticity was the result of tension in too many different directions. Alice Haskett–Alice Varick–Alice Waythorn – she had been each in turn, and had left hanging to each name a little of her privacy, a little of her personality, a little of the inmost self where the unknown god abides.” (Rosen 2000, 38; citing Wharton 1904) This quotation, from a short story published in 1904, is cited without reference to the fact it was almost a hundred years old at the time when Rosen employed it in 2000. It is as if Rosen does not register the fact that gender relations have changed and serial monogamy is hardly shocking in the twenty-first century in the West. In contrast, Wharton, the original author was acutely aware of the social changes that lie behind her story. She makes this point clearly when speaking through the narrator of the story, Mr Waythorn, Alice’s third husband, as he thinks to himself:

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He knew that society has not yet adapted itself to the consequences of divorce, and that till the adaptation takes place every woman who uses the freedom the law accords her must be her own social justification. (Wharton 1904) The reference to “every woman” is not incidental. Rosen’s quotation depends upon the gendering of the subject and the reference to “easy as an old shoe” appears to be the result of a wife’s accommodation to her three successive husbands. This may not have been reciprocated, given the gender roles. It is also a reference to her loss of privacy: of intimate, possibly even sexual knowledge rather than other personal information. If the sexes were reversed in the story, would Rosen’s citation have the same meaning? As this quotation stands, the woman’s “innermost self” and “privacy” are partially lost with every intimate relationship. This draws from the idea of a woman ‘giving herself to a man’ in a way that is associated with a sexual double standard or, at the very least, implies that she has adapted herself to her husband in each relationship. The former interpretation fits more easily within Fried’s argument (that Rosen’s quotation aims to illustrate) because Rosen refers to the idea of exchanging pre-existing intimate knowledge rather than adapting to another in a relationship.4 In fact, the citation – the thought of the narrator (Alice’s third husband) – is prompted, not by the tea party mentioned in Rosen’s quotation that occurs at the end of the story, but by Alice’s willingness to speak to her former husband. Her third husband/narrator is voicing concern that Alice was being too compliant in order to avoid social awkwardness. The earlier line before “she was as easy as an old shoe” is his reflection on how she came to be so accommodating and attributed this to her experiences of different marriages. However, at the end of the tale, when Alice is suddenly confronted by all her former husbands in her home, the third husband/narrator comes to employ a much more positive description, in which the issue of “loss of privacy” as a result of her previous relationship no longer worries him: [S]he stood drawing her gloves off, propitiatory and graceful, diffusing about her a sense of ease and familiarity in which the situation lost its grotesqueness.

4

While it is in this context ad hominen, Rosen’s unselfconscious choice of a view of women from 1904, is informative about his sexual politics, in ways that are taken up generally by Nagel (1998), that I will discuss in the next chapter. Nagel voices concern that negative attitudes towards women and race are easily spotted in civil society today, as a result of which he views civil society as having lost its “neutrality”. I dispute the idea that civil society was ever neutral in this regard (Richardson 2011a).

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If Rosen’s lesson was that a woman’s previous intimate relationships entail a “loss of privacy” that indefinably tainted her then this is not the lesson of the story. As explained, I do not think that Rosen’s citation illustrates the idea of exchanging intimate information, although it may be that he thinks Fried’s claim as to what is exchanged includes the exchange of intimate knowledge, including knowledge of the woman’s body. If Rosen’s interpretation is adopted then the husband’s concern can be characterised in terms of property in the sense that his wife – as property – is diminished by having had previous owners. If that really was his intention this it is far too crude an analysis of the story. As explained, the third husband/narrator is not worried by ownership but by insights he is given into his wife’s history and character development and is ultimately impressed by her ability to handle awkward social situations both in “society occasions” and at home. To draw out Fried’s meaning further, I will continue Rosen’s theme of intimate relationships but compare Fried’s position to that of Kant. I draw a parallel between the way that Fried envisages the exchange of private information as forming the basis of intimacy and Kant’s odd description of marriage, in which intimacy is founded upon another exchange (Richardson 2012). I will detail this argument to further illustrate Fried’s position in terms of his image of the individual as an owner of property in the person. In Kant’s case, the exchange is of access to sexual organs, discussed in his section on ‘Rights to Persons akin to Rights to Things’ in The Metaphysics of Morals. Kant is discussing marriage and argues that marriage is a contract for the exchange of access to sexual organs between husband and wife. His argument does not rest at this point, as he wants to show that it is still possible for husband and wife to have sex – which appears to be a case in which each is being treated as a means to an end – and yet to treat each other with respect as persons. So, both Fried and Kant (at first blush) view the foundation of intimacy as involving exchange of property in the person. In Kant’s case, the exchange involves the mutual use of sexual organs and, in the case of Fried, it is information about our lives, an exchange of secrets. (Fried’s analysis comes closer to Kant’s exchange if Rosen’s extended view of what is exchanged is accepted. I will maintain the narrower view of exchange of secrets.) Unlike Fried, Kant deals with the idea of property in the person explicitly and is clear that property in the person cannot in reality be given away because: [A]cquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity. (Kant 1996, [278] §25, 97) Kant’s argument is that, even though having sex with a partner appears to be treating someone as a means to an end (i.e. as a ‘thing’ that is used for

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sexual gratification), this is not the case when sex takes place within marriage. Referring to marriage as the only state that allows couples to avoid employing the other as an object of gratification he states: There is only one condition under which this is possible: that while a person is acquired by another as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality. (Kant 1996, [278] §25 97, italics in the original) It is clear that the ability to have sex, like other human abilities, cannot be separated from the body and therefore involves the whole person. In the case of traditional wives in Kant’s time, the marriage contract involved contracting to have sex and perform other elements of consortium throughout the marriage, making it more akin to an agreement to become a civil slave. In contrast to traditional marriage, the transfer of private information does not require that an individual continue to take part in a relationship. However, Fried’s argument follows the same structure in that something that is part of human life (our story about intimate aspects of our lives) is treated as property that can be given away to form the basis of a relationship. Fried therefore employs an image of the individual also held by Thomson, discussed above, which enabled her to view all privacy issues through the lens of property ownership and individuals as self-owners. Fried’s position is particularly problematic for those theorists who view our stories about ourselves as being of central importance to defining “who we are”.5 Such a view of the intimate and constitutive role of narrative in our construction of a psychological sense of “who we are” is inconsistent with viewing our narrative about ourselves in such instrumental and alienable terms. It is possible to grasp the individualism involved in such a view of selfhood by contrasting it with other conceptions of the self provided by contemporary feminist philosophy as well as the many varied conceptions that appear within the history of philosophy more generally. For example, Battersby (1998) has drawn upon the phenomenological position of women to envisage selfhood as an emergent characteristic in which one does not start out as an individual. Instead, individuation and the distinction between self and other emerge over time through complex inter-relations (see Richardson 2004; 2011a; 2011b). I will return to discuss

5

Despite the fact that the fiction that we are owners of property in the person derives from Locke, this includes Locke. I will discuss the compatibility of property in the person from the Two Treatises of Government and Locke’s conception of self from An Essay Concerning Human Understanding in detail in Chapter 4.

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this in greater detail in Chapter 3 and to analyse Spinoza’s conception of self, which provides a different model, in Chapter 7. I am employing this example simply to illustrate that Fried’s analytic assumptions about what it is to be human, on which he basis his analysis of privacy, are not universally accepted. Fried (1968, 478 fn. 4) describes himself as Kantian but appears concerned with the consequences of ubiquitous surveillance and its ability to undermine intimacy, in a manner that contradicts Kant’s emphasis upon the importance of obeying duty, irrespective of the consequences. It could be argued that Fried’s claim can be stated in Kantian terms: that respect for personhood entails a right to privacy, not because of the consequences of intrusion upon privacy, but because respect for privacy simply is required to respect personhood. However, there is an important difference between Fried and Kant in this regard. For Fried, the basis for respect is the treatment of others as owners of rights over themselves. This is not the same as Kantian personhood because it carries with it an assumption of property in the person that Kant eschews, as illustrated by the quotation above. For Kant, personhood denotes the ability to use reason in order to think for oneself. As I will discuss in Chapter 3, Kantian personhood is conceptually tied to autonomy and the ability to form a life plan. To respect someone is to treat him or her as an end in himself or herself and not a means to an end. I will now turn to consider some of the other contemporary philosophers of privacy whose positions are closer to Kant.

Schoeman and Bloustein: conversations with Kant There are a number of philosophers in the canon of privacy who appear to be in conversation with Kant, even if this is not acknowledged. As discussed, this involves an image of the individual as a person who must be respected as an end and not treated instrumentally as a means to an end. Kant’s framework lies in contrast with that of self-ownership (ownership of property in the person or possessive individualism) in which the individual may be treated as the owner of his or her abilities, and moral and legal rights as if they were commodities, discussed above. An engagement with Kant raises questions and ideas about the role of privacy in human autonomy, Enlightenment ideas of being able to think for yourself, historical progress and particularly the idea of respect for free and equal personhood. While the conception of “personhood” plays a role in Kant’s moral theory, it also has a political and legal history in which women and some workers, viewed as dependent upon others, were not viewed as persons and so not given the legal rights that this entailed. Kant himself distinguishes personhood from both humanity and animality by virtue of a person’s abilities to use the faculty of reason (Kant 2009, [26] 27; discussed in Battersby 1998). To treat others as if they were persons involves treating them as if they were rational,

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autonomous in the sense of able to make their own life choices, free and of equal moral worth. In contrast, to be merely human is to be able to calculate the means to achieving a goal and to be an animal is simply to be instinctual (Kant 2006, [198] §42 91). As I will discuss in Chapter 3, Kant is clear that women are humans but is ambiguous as to whether they are persons. In part this reflects women’s position in society, which lacked autonomy and was that of a “passive citizen”. In this section, I will trace some of the ways in which Kantian ideas have been employed to define privacy. A straightforward application would be to argue that privacy should be respected because to fail to do so is to fail to respect persons, who are viewed as free, equal, reasonable, autonomous and able to set their own goals. Intrusions upon privacy are immoral in that they breach the categorical imperative, that you should “act only in accordance with that maxim through which you can at the same time will that it become a universal law.” (Kant 2012, [4: 421] 31). To breach the categorical imperative is irrational because it is inconsistent to treat others in a way that you would not want yourself to be treated. Kant does not argue that we can know that we are persons but that we should be treated as if we were. Personhood is not the same as selfhood. For Kant, personhood denotes the transcendental possibility of acting morally; what has to be the case in an unknowable, but not unthinkable noumenal (intelligible) realm that is contrasted with the empirical world governed by physical law. This point can be illustrated by a misreading of Kant in the area of privacy. In an article that aims to compare European and American attitudes to privacy, Whitman (2003) rightly claims that European laws, being derived from Kant, focus upon dignity. However, he associates dignity with the idea of class differences and makes it appear to entail holding oneself up above others. Whitman then argues that such an approach by the upper class became democratised. He does not recognise that Kant’s conception of personhood must denote equal worth because it is conceptually connected with the notions of universality and rationality. This equality can be illustrated by Kant’s now unpopular attitude to crime that is relevant to understanding issues such as revenge porn. For Kant, criminals are viewed as holding themselves out as of greater worth than their victims because the criminals assume the right to treat the victims as a means to an end. Punishment therefore serves as a public statement to restore the balance; that is, to acknowledge respect for equal moral worth. Similarly, Kant provides an argument that can be employed against class biases in law (see Cornell 1995). To characterise this respect for personhood as “dignitarian”, in a way that views dignity as class pretension (or of being more worthy than others), as Whitman does, is the exact opposite of Kant’s moral framework. In contrast to a straightforward application of Kant, some theorists, such as Fried claim to be Kantian when their work can be distinguished from

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Kant’s deontological position by virtue of being consequentialist, as illustrated above. For Kant, what is important, is that the reasons for our actions conform to a universalisable maxim, not the consequences of our actions. In contrast, Schoeman (1984) who is, in part, still in conversation with Kant, bases some of his arguments on Kant’s moral framework, but also distinguishes himself from Kant, with regard to Kant’s conception of autonomy. I will now discuss Schoeman’s position. I will then turn to another reading of Kant within the canon of privacy, that of Bloustein. In Chapter 3, I will return to develop Kant’s position on autonomy. Schoeman’s aim is to “add to the discussion of the place of privacy as a value independent of its feature of protecting people from an imperfect world” (1984, 404). In other words, he is arguing that privacy has an intrinsic value rather than viewing privacy as a means of avoiding other problems, such as excessive state intervention. In his discussion of those who reveal information about themselves (“the revealer”) Schoeman states: [W]hat makes things private is in large part their importance to our conceptions of ourselves and to our relationship to others… perhaps the most significant aspect of what the revealer of intimate information has to convey is that the information matters deeply to himself. (1984, 406) … What is meant by respecting persons as persons is the acknowledgement that what has meaning for one individual thereby gains presumptive moral value independent of socially valuable ends. (1984, 414) Schoeman moves close to Kant by grounding his argument on respect for personhood, irrespective of the “socially valuable ends”. He then expands upon what this means in practice. He also extends this need for respect by focusing upon the desirability of autonomous choice (Schoeman 1984, 417; Schoeman references Pluhar 1983 for first raising these issues). Persons set their own life goals. In Kant’s terminology, persons are ends in themselves and not means to an end. Without reference to Kant, Schoeman stresses that “A private sphere of evaluation must be morally recognized.” (1984, 413). What does he mean by this? It initially sounds as if he is making the Kantian claim that we should think for ourselves in order to evaluate moral questions, using our own reason rather than popular opinion. This would make sense because he would then be extending the Kantian view that we should respect persons’ moral worth by respecting individual goals that are not of any social worth, simply on the grounds that we respect persons’ ability to set goals. Hence the claim that liberal states should not interfere with such goals unless they involve undermining those of others.

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However, Schoeman (1992) is critical of Kant’s view of individual autonomy, as based upon reason and not socialisation. Schoeman draws upon contemporary feminist philosophy, particularly the work of Annette Baier (specifically 1985; 1986), to stress the extent to which our goals and moral decisions must be considered as socially situated. Kant does not ignore the fact that we live with others or that we may be swayed by custom and habit. What he denies is that this is relevant to moral action. A moral action is one that follows from a maxim which, though thought by an individual, must be thought by that individual as applicable to anybody, a universal law. Schoeman distinguishes himself from Kant when he claims: “not all dimensions of persons or relationships need to serve some independently validated social purpose” (1984, 413). He appears to be going further than Kant’s argument that our ability to set our own goals should be respected (because that is what respect for free and equal personhood entails) to argue that the importance of autonomy derives from our “prospects for a meaningful existence” (1984, 415). This reference to the “inner lives of people” (1984, 416), which is to be protected as a result of privacy, takes him away from Kant’s framework – while also relying upon very Kantian arguments for moral worth. I will return to the issue of autonomy and privacy after considering Bloustein’s arguments, which remain closer to Kant. In his paper, “Privacy as an Aspect of Human Dignity”, Bloustein (1964) bases his arguments upon a broadly Kantian view of the person, who is to be respected as able to form his or her own life plans. Unlike Fried’s approach to privacy, this respect is not predicated upon a view of the person based upon self-ownership. However, it is gendered in ways that are central to Bloustein’s argument and yet this is not recognised. I will show how he envisages the harms of invasions of privacy as gendered because this approach sheds light upon what he means by the phrase “human dignity and individuality”, which is central to his work. This leads onto the next section on Mill and individuality. Before detailing Bloustein’s arguments, it is necessary to situate his paper in its context. This context was a legal debate arising from a seminal paper in the Harvard Law Review, by Warren and Brandeis (1890), to be analysed in the next chapter. Bloustein’s (1964) paper is subtitled “An answer to Dean Prosser”, and Prosser’s (1960) paper was itself a (belated) response to Warren and Brandeis. Whereas Warren and Brandeis argue in favour of the establishment of a tort of privacy in the US, Prosser claims that different examples of invasions of privacy in law are not reducible to one overarching privacy right; that they should be considered as defending a composite of interests: in reputation, emotional tranquillity and intangible property, which he argued, already existed in tort law. Hence, Prosser has much in common with Thomson in rejecting a clear basis for different privacy rights, albeit that she discusses moral rights and Prosser discusses

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legal rights. These differ because it may not be necessary to legally enact all moral rights and some laws do not derive from them. Bloustein’s paper is therefore written in opposition to Prosser, with the aim of clarifying tort law; to provide a moral foundation that underlies all privacy case decisions. In other words, he is supporting Warren and Brandeis’ position against that of Prosser. This discussion can be understood as part of a broader debate that pervades tort law generally: whether these civil wrongs have any underlying moral claims in common, or – as Tony Weir pithily expressed his dissenting position: Tort is what is in the tort books, and the only thing holding it together is their binding. (Weir 2006, ix) Bloustein argues that all privacy cases can be viewed as based upon the need to respect “human dignity and individuality” and draws from particular US case facts in order to do so. I will now examine the meaning of this phrase “human dignity and individuality” in Bloustein’s approach. Bloustein starts with an outline of Prosser’s argument: that upon reviewing 300 US common law privacy cases they fall into four different categories: 1 2 3 4

Intrusion upon the Plaintiff’s seclusion or solitude, or into his private affairs. Public disclosure about embarrassing facts about the Plaintiff. Publicity which places the Plaintiff in a “false light” in the public eye. Appropriation, for the Defendant’s advantage, of the Plaintiff’s name or likeness. (Bloustein 1964, 965; citing Prosser 1960, 389)

Prosser claims that the rights being protected are: in (1) freedom from mental distress; in (2) and (3) interests in reputation6 and in (4) proprietary interest in name and likeness. In his response to Prosser, Bloustein returns to the original Warren and Brandeis article to explain why they rejected the idea that privacy rights were really based upon their consequences: on the destruction of character, mental distress or misappropriation of value. Referring to the fact that this influential article was prompted by Warren’s concern about journalists reporting upon his family’s affairs, Bloustein comments:

6

Much more recently in the UK, a privacy case was dismissed in part because it appeared to concern reputation, which was viewed as relevant only to defamation cases and not those in which the facts were true but private. Privacy was therefore not subsumed in this manner. Terry Formally LNS v Persons Unknown [2010] EWHC 119 (QB).

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Mrs Warren’s reputation could have been completely unaffected; her equanimity completely unruffled and her fortune wholly undisturbed; the publicity about her and her husband would nevertheless be wrongful, nevertheless be a violation of an interest which the law should protect. (Bloustein 1964, 970) Bloustein then illustrates the underlying interest in “human dignity and individuality”, which he claims is the foundation of this interest. He does not distinguish it in terms of gender and yet the case examples involving women seem to differ in kind from those of men. This occurs in ways that allow some insight into the meanings of his terms. Bloustein’s summation illustrates this point, in which he references US cases as his examples: What distinguishes the invasion of privacy as a tort from the other torts which involve insults to human dignity and individuality is merely the means used to perpetrate the wrong. The woman who is indecently petted suffers the same indignity as the woman whose birth pangs are overseen. The woman whose photograph is exhibited for advertising purposes is degraded and demeaned as surely as a woman who is kept on board a pleasure boat against her will. (Bloustein 1964, 1003) Before discussing this further, it is worth remarking briefly upon a few common law cases as illustration. The US case Roberson v. Rochester Folding Box Co. (1902)7 involved a young white8 woman’s photographic image, which was reproduced as part of an advertisement without her consent. The court was concerned that she would appear to be associated with the disreputable places where her image may be seen. This differs from later ways in which the use of one’s image has been viewed as a commercial interest, such as the wedding pictures in the UK case of Douglas v Hello! Ltd (no 8) (2007), around a hundred years later.9 In another UK case: Tolley v J.S. Fry and Sons Ltd. (1931),10 a reference to reputation was also used but for different reasons. Tolley was successful in bringing a defamation action because he argued that by producing an advertisement with his image J.S. Fry and Sons Ltd had implied that he had taken money for the advertisement thereby undermining his amateur status as a golfer. Bloustein’s argument is clear that, in the privacy cases he cites, the breach of human dignity arises from the treatment of women as sexual objects or as an object of curiosity about an intimate part of her life, as in

7 8 9 10

Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902). Issues of race in this context will be discussed in the next chapter. Douglas v Hello! Ltd (no 8) [2007] UKHL 21. Tolley v J.S. Fry and Sons Ltd. (1931) AC 33.

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the case of the intruder upon a woman giving birth (Bloustein 1964, 994). The term “individuality” appears out of context in these cases. It is unlikely that a woman would be put off choosing an “individualistic” way of giving birth by virtue of the possibility of being overseen. It seems that the term ‘individuality’ is used in order to make the text consistent because it becomes relevant in the examples that Bloustein discusses immediately afterwards, concerning men: The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. (Bloustein 1964, 1003) Here, the subject of a privacy invasion is no longer being viewed simply as an object. He is a potential agent, whose ability to make unconventional decisions may be compromised by public attention. Here, the term “individuality” is appropriate (and “human dignity” less necessary) as Bloustein gives expression to John Stuart Mill’s concern about the way in which individuality and “experiments in living” (Mill 1977) can be crushed by both laws and social mores, to be discussed in the next section. This unacknowledged gender division that produces a split between “dignity” and “individuality” does not undermine Bloustein’s argument, once it is clarified. He can argue for both points: that privacy is based upon respect for personhood, such that no-one’s body should be treated as an object (the Kantian claim) nor have his or her potential for creative individuality undermined by such surveillance (the Millian point). The former example treats someone as a means to an end, for example as an object for (sexual or other) gratification. The latter may fail to respect someone’s ability to set her or his own life plans (an area in which there is overlap between Kant and Mill); although there is a question over the extent to which persons are genuinely constrained, depending upon the definition of autonomy, the subject of Chapter 3. Both concerns can be applied to both sexes, of course, given that women have been subject to monitoring that can stifle their individuality and men have been treated as objects (sexual and otherwise). As Irving Goffman graphically documents, it is also possible for both men and women to be treated as objects and fully displayed for reasons other than sexual gratification, in situations in which the breach of privacy is stark: Prisoners and mental patients cannot prevent their visitors from seeing them in humiliating circumstances … Prison cages with bars for walls fully realize such exposure. (Goffman 1968, 24–25)

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While it is possible to correct the way in which Bloustein’s image of “dignity and individuality” is gendered, it is an important point to note because the stereotyping undermines the clarity of his arguments. He talks about “dignity and individuality” as the same thing rather than recognising the differences in the moral basis of these legal cases, along with their different roots in Kant and Mill. Mill is the philosopher whose work is most concerned with trying to safeguard individuality against invasions of privacy from social pressure as well as the state. In this final section, I will turn from Bloustein’s arguments to consider the role of uninhibited expressions of individuality as the basis for the need to respect privacy through the work of two contemporary writers. Julie Cohen and Alex Pentland are, in very different ways, informed by (and raise questions about) Mill’s arguments.

Cohen contra Pentland: Mill and individuality Cohen In her paper “What is privacy for?” Julie Cohen argues that: Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. (J. E. Cohen 2013, 1905) Cohen relies upon an image of the subject that she describes as “postliberal” (2013, 1909). She pulls together an amalgam of ideas to refer to the “liberal subject”, who, she argues, has beneficial traits such as autonomy and individualism but also possessive individualism (as owner of property in the person), viewing parts of what it is to be a person as commodities. Cohen views some characteristics, particularly those associated with a market society, such as competitiveness and the emphasis upon commodification, as arising from a capitalist society. The more positive characteristics, she argues, arise from the Enlightenment, such as the ability to think for yourself, required for a democratic society to flourish. While Cohen’s analysis is clear in its context, in later chapters I will look in detail at particular philosophers to disentangle different elements of this amalgamated “liberal position”. There is a question over the extent to which the positive attributes of strong autonomy exist empirically and I will discuss this point in Chapter 3. In part, Cohen’s support for an individual’s need for privacy is actually close to one important aspect of the work of one liberal: John Stuart Mill and his classic analysis of liberty. Cohen accepts Mill’s argument in support of the need to be free to develop one’s own convictions and seeks to

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separate this from “background assumptions of liberal political theory” (2012, 151). I will also differentiate aspects of liberal and neo-liberal political thought, their history and conceptions of self and its relation to privacy, in Chapters 3 (Kant and Mill) 4 (Locke) and 5 (neo-liberalism). This is to later demonstrate that philosophy has resources to think the relationship between self and society for which Cohen is searching. Cohen does not focus upon Pentland specifically but his ability to employ big data to record, at all times, details of people’s lives is an instance of a broader trend and capacity that does motivate her concern to protect privacy. I will turn to Pentland’s work before concluding with an analysis of the extent to which both share some of Mill’s beliefs and aims, although Cohen is the true inheritor of his important concerns with individuality. Pentland Pentland (2014) shares Mill’s hope for social progress but draws the opposite conclusion as to how this is to be achieved. This can be illustrated by considering one of Pentland’s experiments. An analysis of large samples of data obtained with the use of iphones or with “tracking badges” to track people’s daily movements and record interactions with others, including all electronic communications, lead Pentland to the conclusion that peer pressure is an important method of altering our behaviour. Mill reached the same conclusion by observation. What Mill lacked in algorithms and vast amounts of data, he made up for in his subtle description of nineteenth century England, in which the constraints upon individuality that result from social manners were greater than the constrains from the law. Mill (1977) describes the devastating impact of social pressure upon both the individual’s ability to find happiness and upon society. Whereas Pentland wants to improve society by continuously collecting detailed data about us to manipulate us into lifestyles that promote good health and a happier life, Mill envisaged the same ends by the opposite route. Mill advocates a society in which individuals can be eccentric – and even self-harming (not even producing a risk analysis of their behaviour) – without interference. Instead of assuming that there is a clear answer to the question of how to live a good life and that we just need to be constantly nudged in the right direction, Mill argues that we do not know the answer to this question. It is one that should be decided by each individual engaged in creative “experiments in living”, providing they do not harm others. This experimentation allows us to learn from others. The communication of information dovetails with another theme that is central to Pentland’s work: that the flow of new ideas is important. This is a compelling argument that is not unique to Pentland, albeit that he employs new technology to investigate this empirically. For example, Pentland (2014) produces a graph on the flow of ideas between

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stockbrokers, finding poor performance in two areas: firstly, where the stockbroker is too isolated and so makes decisions with insufficient information and, secondly, where there is “an echo chamber”. The echo chamber is a term he employs to draw attention to the fact that a number of stockbrokers were using each other as an information source, when the original source was (unknown to them) only one person. This mistake resulted in the stockbrokers giving undue weight to this information, assuming it represented a large consensus, thereby producing “group think” as they bolstered each other’s confidence in it. Pentland’s conclusion is that companies should nudge employees into a position in which neither situation occurs. This advice continues the process in which psychology is employed in business. However, the same technique – of talking to a number of people but being careful that ideas are not given extra weight by being recycled – may be useful in other situations. Mill’s concern was not with stockbrokers but derived from the worry that different ideas may be lost when people are subject to social pressure. In a conformist society, they may lack the experience to develop different ideas in the first place or may be too timid to appear different by circulating them. This would be particularly true if they were monitored all the time and any eccentricity could be exposed to everyone online. Pentland, while recognising the privacy implications of his constant monitoring of subjects within his empirical research, nevertheless relishes the idea that he can fix society by such monitoring. I am not referring to the experiments themselves, which usually did employ tracking technology and the analysis of vast numbers of emails and communications. It is the implications of such experiments that prompt the idea of changing our behaviour by the use of such technology. His analysis of workplace data, for example, suggests that the need to fit in with colleagues provides a more effective spur to change individual behaviour in the workplace than individual incentives. Pentland fails to consider the role of power in the different applications of big data studies. In this workplace study, he follows the tradition of Taylor (2003) and Mayo (1933) with the aim of scientifically discovering the most effective way of manipulating employee behaviour. More broadly, while some of his evidence may be compelling and may produce some positive results, the project is reminiscent of behaviourist BF Skinner’s (1948) Walden Two, in which Skinner describes his ideal society. This society is peopled by subjects who behave themselves (and are happy) by virtue of systems of reinforcement. Pentland also views most individuals and societies as, if not fixed, then certainly transparent and predictable, suitable subjects for his data analysis. As I will discuss in Chapter 5, such behaviourism is compatible with neo-liberal conceptions of self (Foucault 2008, 389). In contrast, Mill recognised that it matters whether someone actively

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endorses an argument or merely repeats dogma. A comparable point can be made with regard to the extent to which someone is active or passive in their actions. Surely, it makes a difference whether I chose to make arrangements with others in order to nudge myself into going to the gym because I know that it is good for me or whether such nagging is prompted by others’ self interests?11 In summary, while Pentland shares Mill’s aim of improving society, in particular though enabling the flows of ideas, they are diametrically opposed as to the methods to be employed to further this aim. Pentland advocates psychological experiment and is willing to use social pressure as a lever to “improve” people’s lives. His empirical data indicates that our beliefs are themselves merely a function of our peer group and hence subject to manipulation – although this does not, of course, have any implications as to whether such beliefs are correct or morally sound. Mill’s nineteenth century concern is reflected in the twenty first century by Cohen’s analysis of current privacy threats: that they threaten the emergence of individuality by greater monitoring by both the state and through social pressure facilitated by companies; that they attempt to fix us (in both senses of the term) and make us more transparent. In his emphasis upon individuality and diverse lifestyles in the face of social pressure, Mill produces an unusual public/private split, concerned with the divide between self-regarding and other-regarding activities, as I will discuss in Chapter 3. As I will illustrate in the discussion of Warren and Brandeis, in the next chapter, in the nineteenth century the public/private split was based, in part, upon place: the domestic home as a private sphere. Cohen (2012) has argued that we still employ a view of privacy that is imagined in terms of negotiating boundaries, modelled upon the idealised image of the home. To explore this view of privacy, I will turn from a discussion of the canon of privacy to consider the employment of the term and its relationship to public/private spheres within the common and civil law.

Bibliography Baier, Annette. 1985. Postures of the Mind: Essays on Mind and Morals. Minneapolis: University of Minnesota Press. Baier, Annette. 1986. “Trust and Antitrust”. Ethics 96 (2): 231–60. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Bloustein, Edward J. 1964. “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”. New York University Law Review 39: 962–1007.

11

In Chapter 5, I examine empirical evidence in support of the view that interpretations of whether a relationship is commercially based or not will alter behaviour. In Chapter 7, on Spinoza, I return to the distinction between activity and passivity in actions and the adoption of ideas.

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Cohen, Gerald Allan. 1995. Self-Ownership, Freedom, and Equality. Cambridge: Cambridge University Press. Cohen, Julie E. 2012. Configuring the Networked Self: Law, Code, and the Play of Everyday Practice. New Haven, CT/London: Yale University Press. Cohen, Julie E. 2013. “What Privacy Is For”. Harvard Law Review 126 (7): 1904–33. Cornell, Drucilla. 1995. The Imaginary Domain: Abortion, Pornography and Sexual Harassment. London: Routledge. Floridi, Luciano. 2013. The Ethics of Information. Oxford: Oxford University Press. Foucault, Michel. 2008. The Birth of Biopolitics: Lectures at the College de France, 1978–1979. Edited by Michel Senellart. Translated by Graham Burchell. Basingstoke: Palgrave Macmillan. Fried, Charles. 1968. “Privacy”. The Yale Law Journal 77 (3): 475–93. doi:10.2307/794941. Fried, Charles. 1984. “Privacy [A Moral Analysis]”. In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 203–22. Cambridge: Cambridge University Press. Goffman, Erving. 1968. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. Harmondsworth: Penguin. Kant, Immanuel. 1996. The Metaphysics of Morals. Translated and Edited by Mary J. Gregor with an introduction by Roger J. Sullivan. 2nd revised edn. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Kant, Immanuel. 2006. Anthropology from a Pragmatic Point of View. Edited and translated by Robert B. Louden. Cambridge: Cambridge University Press. Kant, Immanuel. 2009. Religion Within the Bounds of Bare Reason. Translated by Werner S. Pluhar. Indianapolis: Hackett Publishing. Kant, Immanuel. 2012. Groundwork of the Metaphysics of Morals. Edited by Jens. Timmermann. Translated by Mary J. Gregor. 2nd edn. Cambridge: Cambridge University Press. Mayo, Elton. 1933. The Human Problems of an Industrial Civilization. New York: Macmillan. Mill, John Stuart. 1977. “On Liberty”. In Essays on Politics and Society, edited by John M. Robson and Alexander. Brady. Vol. 18. Collected Works of John Stuart Mill. Toronto: University of Toronto Press. Nagel, Thomas. 1998. “Concealment and Exposure”. Philosophy and Public Affairs 27 (1): 3–30. doi: www.jstor.org/stable/2672839. Pateman, Carole. 1988. The Sexual Contract. Polity Press: Cambridge. Pateman, Carole. 1989. The Disorder of Women: Democracy, Feminism and Political Theory. Cambridge: Polity Press. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts”. The Journal of Political Philosophy 10 (1): 20–53. doi:10.1111/1467-9760.00141. Pentland, Alex. 2014. Social Physics: How Good Ideas Spread – the Lessons from a New Science. Melbourne/London: Scribe. Pluhar, Evelyn. 1983. “Commentary on ‘Privacy and Intimate Information’.” presented at the American Philosophical Association, Western Division, meetings. Posner, Richard A. 1992. Economic Analysis of Law. 4th edn. Law School Casebook Series. Boston: Little, Brown.

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Prosser, William L. 1960. “Privacy”. California Law Review 48 (3): 383–423. doi:10.2307/3478805. Rachels, James. 1975. “Why Privacy Is Important”. Philosophy and Public Affairs 4 (4): 323–33. Radin, Margaret Jane. 1996. Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things. Harvard University Press. Richardson, Janice. 2004. Selves, Persons, Individuals: Philosophical Perspectives on Women and Legal Obligations. Aldershot: Ashgate Publishing. Richardson, Janice. 2011a. “The Changing Meaning of Privacy, Identity and Contemporary Feminist Philosophy”. Minds and Machines 21 (4): 517–32. doi:10.1007/s11023-011-9257-8. Richardson, Janice. 2011b. “Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby”. Angelaki 16 (2): 143–57. doi:10.1080/ 0969725X.2011.591593. Richardson, Janice. 2012. “If I Cannot Have Her, Everybody Can: Sexual Disclosure and Privacy Law”. In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 145–62. Oxford: Routledge. Rosen, Jeffrey. 2000. “Why Privacy Matters”. The Wilson Quarterly 24 (4): 32–38. doi: www.jstor.org/stable/40260112. Scanlon, Thomas. 1975. “Thomson on Privacy”. Philosophy and Public Affairs 4 (4): 315–22. Schoeman, Ferdinand David. 1984. “Privacy and Intimate Information”. In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 413–18. Cambridge: Cambridge University Press. Schoeman, Ferdinand David. 1992. Privacy and Social Freedom. Cambridge: Cambridge University Press. Skinner, Burrhus Frederic. 1948. Walden Two. New York: Macmillan. Taylor, Frederick Winslow. 2003. Scientific Management: Comprising Shop Management, The Principles of Scientific Management, Testimony before the Special House Committee. London: Routledge. Thomson, Judith Jarvis. 1975. “The Right to Privacy”. Philosophy and Public Affairs 4 (4): 295–314. Thomson, Judith Jarvis. 1984. “The Right to Privacy”. In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 272–89. Cambridge: Cambridge University Press. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy”. Harvard Law Review 4 (5): 193–220. Weir, Tony. 2006. An Introduction to Tort Law. 2 edition. Oxford/New York: OUP Oxford. Wharton, Edith. 1904. “The Other Two”. Collier’s Weekly, February 13. Whitman, J. Q. 2003. “The Two Western Cultures of Privacy: Dignity versus Liberty”. Yale Law Journal 113: 1151.

Chapter 2

Privacy and the law The background

Introduction In this chapter, I will draw out a selection of ways in which the English and American common law and continental civil legal tradition has dealt with the question of privacy. This selection is not employed in the way that a lawyer would give a supposedly neutral overview of laws in this area. I explore some of the judicial attitudes, the philosophical framework of which requires analysis. The examples chosen therefore address one of the aims of this book: to consider the philosophical underpinnings of ways in which the idea of privacy is employed and their political implications. In this chapter, I am interested in the role of the term ‘privacy’; who wins and who loses when it is employed by the courts. As a result, I examine the way that the courts and legislature shaped the marriage contract and how their interpretations of privacy also reflected their understanding of race and class. The usual starting place for legal analysis is the 1890 article in the Harvard Law Review by Warren and Brandeis, whose arguments in favour of the development of tort law (such that individuals could sue to protect their privacy) influenced US law. Warren and Brandeis wrote their article as a reaction to a technological development: the Kodak camera, along with the growth of its use by the gutter press. They worried that, not only would private information be made public, but that this represented an intrusion upon the family home, in particular the upper class society home of Warren. Warren and Brandeis (1890; reprinted in 1984) bring together both ideas about private information and about the image of privacy as associated with a place: that of the domestic home, both of which evoke intimacy. I will situate Warren and Brandeis’s article by first considering how privacy was already being applied in the US courts at the time that they wrote their famous article; a context which generally goes unacknowledged. This context is that of the common law approach to the problem of wife beating. Privacy in relation to the home worked as a defence for the

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husband in both tort law and criminal law cases of battery. I then draw a parallel between the common law view of privacy and the European codified tradition in the way that the private sphere of the sentimental family home was envisaged in law.

Privacy in common law: background Recent theorists of privacy have pointed to its association with intimacy. Julie Inness has defined privacy as: [T]he state of possessing control over the realm of intimate decisions, which includes decisions over intimate access, intimate information and intimate actions. (1992, 140) She defines “intimacy” as the product of “the agent’s love, liking and care for others” (1992, 140), which she argues should be respected as part of respect for a person. Similarly, Solove (2008) argues that the family, the body, sex, the home and communication are contexts of privacy. As illustrated in the last chapter, these claims are only a few of the many definitions of privacy that perform different work in reflecting and crystallising experiences of privacy. Nevertheless, they represent an aspect of privacy that many would continue to recognise today. This recognition was shared by the nineteenth century common law judiciary, although the attitudes to domestic violence hopefully differ. It allowed the judiciary to employ arguments based upon a husband’s control of intimate information (about his behaviour in the family home) to produce immunity from violence against his wife. In the words of one judge in a case of whipping: The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations – such as master and apprentice, teacher and pupil, parent and child, husband and wife. Not because those relations are not subject to law, but because the evil of publicity would be greater than the evil involved in the trifles complained of, and because they ought to be left to family government. (61 N.C. (Phil. Law) 453 (1868) cited in Siegel 1996, 2154, italics in the original) Siegel’s (1996) legal analysis describes a transition in law as a result of political changes: how husbands’ legal prerogative to beat their wives was challenged in the nineteenth century. This change arose as a result of a successful (although pyrrhic) victory by two separate groups: feminists and the temperance movement. These two groups had different motives. The temperance movement sought to further their cause by publicising the

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actions of men who were violent to their wives as a result of alcohol abuse whereas feminists wanted to challenge women’s subordination. Activists’ arguments against husbands’ prerogative were ‘successful’ in part because of a broader change in the popular view of the family. The idea of the ‘sentimental family’ maintained a view of the wife as subordinate but that she should continue to obey, now out of love rather than ‘feudal’ status. Siegel produces a detailed and convincing analysis of US case law to support her argument that the judiciary, when faced with powerful challenges to a husband’s prerogative to beat his wife, simply adapted the law to maintain the status quo. Further, Siegel describes the judiciary as actually managing to “breath new life” into the legal sanctioning of wife-beating at a time when it had been weakened in practice. This was done by producing a more socially acceptable argument for the husband’s immunity from criminal prosecution for wife beating, based upon the perceived need for the state to avoid publicising details as to what happened in the family home. She refers to this approach to law as legal “preservation through transformation” (Siegel 1996, 2119). The Rhodes court judgment, from 1868 cited above, illustrates the role privacy played in the husband’s immunity, which included master/apprentice, teacher/pupil, parent/child and husband and wife. As Siegel’s case analysis demonstrates, the historical story is not a straightforward one from status to contract, from wife as akin to a feudal serf later transformed into an equal person. As I will discuss further below, the marriage contract did not imply equality or legal (or moral) personhood. After Rhodes, the reliance upon the need for privacy in the family home sets a precedent for later cases in which judges rely upon the following precedent, formulated to give husbands immunity to battery: If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. (quoted in Siegel 1996, 2158). State v. Oliver, 70 N.C. 60, 61–62 (1874) (criminal immunity case), quoted in Abbott v. Abbott, 67 Me. 304, 307 (1877) (tort immunity case) In her analysis of this transition Siegel argues that this approach reflected a shared attitude by the male upper class white judiciary that the harm to the husband’s reputation (that would occur if his governance of the household were to be exposed to public criticism) outweighs the harm to the woman of being beaten. Given the nature of common law precedent, the harm to the woman would be extended to include both future harm to the victim/plaintiff and to other women whose husbands were aware that they had immunity to be violent to their wives. In order to think further about the logic of the judicial use of privacy, I

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want to consider it in the context of an essay by a contemporary US liberal philosopher Thomas Nagel (1998). I should be clear that Nagel would certainly not condone wife beating and it is only one aspect of his subtle analysis that is relevant in this context. Nagel’s portrayal of privacy sheds light upon a particular way of life that he, correctly, views as being lost. Nagel’s influential essay, captures something of way ideas of privacy were (and are) used in order to deal with a contradiction. This contradiction arises when a couple live together, supposedly in an intimate relationship, and yet one party is not respected as an equal. The ideal of privacy is employed to deal with the cognitive dissonance that arises regarding such relationships. Nagel describes an experience of a loss of privacy that results from changing social attitudes and provides a number of examples. His focus is upon social relations, both within civil society and the family. He makes sensible and kindly arguments against the humiliation of famous people by the press and the need, in general, to allow others to save face. It is his view of family life that could give some insight into these nineteenth century judicial attitudes. Nagel argues that it is sometimes better not to speak directly about problems and that this art of discretion was being lost, at the time of his writing in 1998. In one example Nagel draws from Henry James’s (2009) The Golden Bowl, which was published in the US in 1904 (coincidently the same year as Wharton’s ‘The Other Two’ discussed in the previous chapter) only 14 years after Warren and Brandeis’ intervention in the law of privacy and 36 years after the Rhodes judgement justified the legal ground for wife beating in terms of privacy. In the novel, a character, Maggie, alludes to the fact that she knows that her husband had an affair but does not speak of it directly. Nagel praises such “reticence” in intimate relations as well as in public. Referring to the couple, he says: They do not “have it out,” as would perhaps have been more likely in a novel written fifty or a hundred years later; the reason is that they both know that they cannot arrive at a common, shareable attitude or response to this history. If their uncombinable individual feelings about it are to enable them to go on together, those feelings will have to remain unexpressed, and their intimacy will have to be reconstructed at a shared higher layer of privacy, beneath which deeper individual privacies are permitted to continue to exist. (Nagel 1998, 15; emphasis added) This is an advocacy in favour of ‘brushing matters under the carpet’ that is shared by the nineteenth century US judges of domestic violence cases. Both aim to provide a way of allowing relationships to continue because further enquiry would disclose inequalities and abuse. In other words, privacy (at a ‘higher level’, that of the individual) was employed as a coping mechanism in order to avoid the contradictions that arise when women are

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viewed as a central part of the sentimental family and yet there remains a lack of respect for them (see Richardson 2011 for a further discussion of Nagel’s arguments). It is notable that in the vast mainstream literature on privacy, particularly with the emergence of greater privacy laws as a result of computer mediated communication, there is little comment on this legal history. The way in which privacy was specifically used in law to give immunity (against prosecutions and civil liability) to husbands for domestic violence is elided. An attempt is made to view today’s concerns with informational privacy as a completely separate issue from the historical public/private divide. Yet analyses of what is being protected by privacy law still draws upon the image of the domestic home and intimacy, as Innes’ and Solove’s definitions, stated above, demonstrate. As I will show below, Warren and Brandeis’ article holds together concerns both about private information and the privacy of the domestic home to argue in favour of a tort that covers both areas of privacy. In their detailed analysis of the development of tort law in relation to privacy, they do not mention the fact that the criminal law immunity to wife beating, based upon privacy, had also been applied to torts law, the subject of their analysis. This occurred at the point when women gained the right to sue in tort (a development that also prompted a struggle over whether they would be allowed to sue their husbands). Warren and Brandeis ignore these privacy cases despite the fact that they are focused upon privacy arguments in the context of tort law. These cases use privacy as a defence rather than to found a claim. Nevertheless, it is still an omission that requires an explanation, given that Warren and Brandeis argue in favour of establishing the protection of privacy around the family home, precisely the grounds on which husbands’ immunity to the tort of battery was granted. Given their expertise they would be well aware of these cases. The reason for their omission may be that they would not wish to highlight such cases because the disturbing reality of wife beating – and the shabby way in which it was legitimated – does not sit comfortably with their image of the sentimental family. I will outline these cases and then turn to Warren and Brandeis’ article in detail. Siegel traces the same nineteenth century privacy arguments through to contemporary US legislation (the Violence against Women Act 1994, reauthorized in 2000, 2005, 2013) and evokes citizens’ rights: As in the nineteenth-century inter spousal immunity cases, assertions about love and intimacy in a relationship rhetorically efface the violence of sexualized assault. We might distill the logic of this tradition to the following maxim: Where love is, law need not be. Intimacy occurs in a domain having no bearing on matters of citizenship. (Siegel 1996, 2116–2117)

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The Rhodes decision was based upon an argument regarding “family government” As Siegel concludes: The Rhodes opinion is striking because it reveals the extent to which concerns about “the evil of publicity” that might result from enforcing criminal law in the family in turn rest upon traditional patriarchal assumptions about “family government” – an institution that this court asserted was “recognized by law as being as complete in itself as the State government is in itself, and yet subordinate to it.” (Siegel 1996, 2154) The importance of privacy was therefore derived from the need for “family government”, complete in itself, yet subordinate to state government. If we recognise, with Weber that, “the modern state is an institutional form of rule that has successfully fought to create a monopoly of legitimate physical force as a means of government within a particular territory” (Weber 2004, 34) then, by the use of the privacy argument, this right was also bestowed upon husbands in their traditional role as head of the mini-state in the territory that was the family home.

Privacy as intimacy: race and class I will now return to Nagel. Whereas his work was useful in analysing the position of the judges, I now want to use his evocative arguments to introduce the issues of race and class as well as gendered power relations. Recall that The Golden Bowl was used by Nagel to praise the subtlety and discretion of a wife in dealing with a conflict in which the couple “cannot arrive at a common, shareable attitude or response to this history” Nagel (1998, 15). In his analysis, Nagel fails to give due weight to the power relations between the parties. He fails to recognise the possible erosion of self-respect, when daily relations serve as a reminder of (and recreate the relationship based upon) subordination. However, this example from The Golden Bowl is unusual. Normally, it is the wife who is rendered economically dependent. As Fraser (drawing on work by Okin 1989; Hirschman 1970; Goodin 1985; Hobson 1990) points out, a wife historically bears greater “exit costs”, i.e. it is more difficult for her to leave the relationship as a result of this financial “dependence”. However, in this fiction, Maggie is wealthier than her husband. As Gore Vidal explains Henry James’ book: Henry’s brother William once mused that the ultimate sanction for our civil order, including the graces and amenities of social life, is “force” – the fist, the sword, the gun, and, of course, gold. Brother Henry’s work concurs. Example: what happens (or, as a nervous academic would put it, “happens”) in The Golden Bowl ? A father and a daughter have a

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fortune – that is, they have force. A young couple have beauty and each other but no money; plainly, they are less forceful than the other pair. (Bayley and Vidal 1984) Vidal goes on to argue that knowledge is also a type of force and that this shifts in favour of the illicit “beautiful couple” when they start their secret affair and is then lost to them when Maggie discovers their secret. From the perspective of class rather than gender, it may be that my initial reading of Nagel: that wives should hold the family together by failing to mention ways in which they feel demeaned, is not the whole story. Nagel’s argument could be interpreted differently if Maggie’s (the wife’s) financial power is stressed. Nagel’s comments could be reinterpreted as promoting discretion on behalf of those who are wielding power, cautioning them to be subtle in its use. In other words, this would be akin to the way that Kant (see Richardson 2009, 111 for a discussion of Kant’s problem) warns that people should give to the poor in a considerate manner so as to maintain the dignity of those receiving charity.1 Both interpretations – whether power is analysed in relation to gender or class – highlight the same problem: the way in which privacy can play a part in covering over differences in (and potential abuses of) power. Read in this way, Nagel raises the issue of class as well as gender and characterises it as an area that we should try to avoid discussing because we will not reach a “common shareable attitude”. By making this move, Nagel again echoes the nineteenth century judges who also found resources in arguments for privacy that allowed them to cover over abuse of power in the domestic home. Returning to Siegel’s case analysis of privacy and wife beating, she traces how the court’s view of privacy altered depending upon both class and race (1996, 2134). The upper class, white judges were concerned that the public knowledge of wife beating (within the ambit of the husband’s governance of the home) would be more shameful to upper class white men. The only other early case, Fulgham v. State (1871),2 involved a husband and wife who were former slaves and did not mention privacy at all. On appeal, the Alabama State Court repudiated the husband’s prerogative and allowed the prosecution. There were later proposals by the US bar to have wife beaters whipped by way of public humiliation. As Siegel shows, the contrasting treatment of the black (former slave) wife beater did not result from the court’s concern regarding respect for women.

1

2

“So we shall acknowledge that we are under obligation to help a poor man; but since the favor we do implies that his well-being depends on our generosity, and this humbles him, it is our duty to behave as if our help is either merely what is due him or but a slight service of love, and to spare him humiliation and maintain his respect for himself” (Kant 1996, [449] §24 243). Fulgham v. State 62. 46 Ala. 143 (1871).

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It is useful to employ the Kantian idea of respect for persons, elaborated by Jean Hampton (1992; 1998; 2007), to understand this case and its associated calls for public humiliation of the black man (that lies in stark contrast with the concern to safeguard the white man’s privacy). Hampton, applying Kant but extending his analysis and applying it from a feminist perspective, argues that it is axiomatic that everyone should be viewed as being “free and equal persons”.3 When someone commits a serious crime, such as that of violence against another, the criminal effectively makes a statement that he is of greater worth than his victim. This attitude is illustrated by the response of husbands who held the view that he should be able to do what he wanted with his wife, that it was a private matter. To fail to view this as a crime is to fail in a moral duty. For Hampton, following Kant on crime more generally, whenever someone commits such an act the courts should punish him (or her) appropriately and the sentence made public in order to redress the balance. The court is effectively making a public statement that it was wrong of the criminal to treat another as an inferior; as a means to an end. The court has a duty to make such a public statement, based upon the axiom of equal moral worth of persons. This sets limits on the sentence, which should not be trivial in order to demonstrate the equal worth of the victim but not of a type that is degrading of personhood, such as torture. To apply Hampton’s Kantian arguments to the case above, when the courts ordered that the black husband should be whipped for having whipped his wife, it was clear that the court aimed to undermine his status. Given that the same treatment was not given to white men, it was also obvious that this attack on his status was not aimed at redressing the wrong he had committed to his wife. In contrast, what appears to be at play in the public humiliation was this ex-slave’s audacity at taking on the status of husband or head of the “mini-state” that was the family. This explains the fact of the Klu Klux Klan’s interest in punishing black wife beaters, which came to light in 1871 (Siegel 1996, 2117). Needless to say, this punishment and the involvement of race and status would also account for black women’s reluctance to take action against their husbands. The issue of class is also relevant to the courts’ analysis. Middle and upper class men had more to lose in terms of social disgrace and loss of authority if their private lives became public (Siegel 1996, 2117). For the “vicious classes” penologists recommended public whipping, which would have the effect of humiliating them. In the words of one advocate of this punishment, who found a positive use of the “lurid glare of the nineteenth century press”:

3

In Chapter 7 I discuss the argument that Kant’s position can be conceptualised as a “better fiction”.

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The news of the punishment will speedily become public property, whether the whipping-post be in sight of all men or not. There is little chance of privacy or concealment in the white light or the lurid glare of the Nineteenth Century press. (Hanaford 1899, 109; quoted in Siegel 1996, 2161) This reference to the nineteenth century press serves as an introduction to the seminal work of Warren and Brandeis in support of privacy.

Warren and Brandeis The main concern of Warren and Brandeis’ argument for privacy is the same worry that prompted the judiciary to grant immunity in tort for wife beating, the need to shut out the public gaze into the domestic home: If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. State v. Oliver, 70 N.C. 60, 61–62 (1874) (criminal immunity case), quoted in Abbott v. Abbott, 67 Me. 304, 307 (1877) (tort immunity case). Emphasis added As discussed above, Warren and Brandeis examine the law of tort in detail for precedents to support the development of a tort to defend privacy and yet they ignore this defence within tort law: husbands’ immunity to wife beating that protects such privacy. It is therefore ironic that Warren and Brandeis’ description of the common law starts with a reference to the claim that the full protection of the person and property are as old as the common law. They develop their analysis in terms of an Enlightenment tale of the development of civilisation. Initially, this protection was enough but later came “recognition of man’s spiritual nature, of his feelings and his intellect” (Warren and Brandeis 1890, 193). This, they argue, has resulted in an extension of rights, including the “right to life” (which is viewed as extending from the mere right to protect the subject from battery) to the right to enjoy life and “the right to be let alone”. Warren and Brandeis’ reference to the recognition of feelings is supported by examples, which include the concern with reputation, which trumped the wife’s “full protection of the person” in the wife battery cases, still part of the common law at that time. They argue that the tort of defamation arises from this progress in the sensibilities of the common law, ignoring that the precursor to the tort was that of seditious libel, which does not feature in their Whiggish history. Similarly, the family features as an area in which a man can be dishonoured and so the common law, “in its eternal youth” (Warren and Brandeis 1890, 193), developed accordingly. They describe the development of the tort such that a man

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could sue if another alienated his wife’s affections and, while there was no tort for his “dishonour” for the seduction of his daughter, the parents could sue for loss of service that derives from loss of service of a servant (Warren and Brandeis 1890, 194). For them, these legal developments were an inevitable result of civilisation, which brought with it “intense intellectual and emotional life and the heightening of sensations” (Warren and Brandeis 1890, 195). Having indicated the ways in which the common law had developed to protect such feelings, they argue that it was time for a further development of the same type. Their much cited plea is eloquent: Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the housetops” … Gossip is no longer the resource of the idle and the vicious but has become a trade, which is pursued with industry as well as effrontery … Triviality destroys at once both robustness of thought and delicacy of feeling. (Warren and Brandeis 1890, 196) While it does not necessarily undermine their argument, there is clearly a class dimension to Warren and Brandeis’ analysis of this “effrontery”. The press were interested in Mrs Warren’s society household and were intrusive in ways that shocked the authors. Race, which has been discussed in the context of wife battery cases in which the privacy of the husband was only supported for white men, is not mentioned. The issue of race is less often raised in the many articles about Warren and Brandeis. A notable exception to this, is Eden Osucha’s “The Whiteness of Privacy” (2009). Osucha draws attention to an aspect of privacy violation that particularly alarmed Warren and Brandeis: the ability of the press to print pictures of individuals. She argues that: The racialization of the concepts of publicity and privacy … shapes Warren and Brandeis’s influential redefinition of privacy as a distinctive property right and cultural privilege. (Osucha 2009, 72) In comparison to the image of the white woman, in particular, who should be protected from publicity that demeans her, is the image of the black body and the “racially denigrating visual consumption of African Americans” (Osucha 2009, 78). The bodies of African Americans were shown publicly, both as part of supposedly scientific endeavour and as mass entertainment. Osucha argues that to have one’s image publicised was also

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viewed as degrading because such publicity had been racialised. In contrast with the traditional portrait, which was employed by the upper classes to distinguish individuals, the mass production of photographs in public produces an “explosion of the private into the public” (Barthes 1981, 98; quoted in Osucha 2009, 74). Pictures of black persons for scientific enquiry, such as the archive of photographs held by Francis Galton stand as opposites to these honorific portraits of upper class white individuals. Osucha argues that, whereas portraiture demonstrated the “selfpossession” of the subject, other photographs that came to be employed at this time – from the ethnographic photographs to police mug shots – “portray their subjects as individuals dispossessed of selfhood” (Osucha 2009, 76). She considers Allan Sekula’s (1986) argument that in honorific portraits the personal meaning of the painting (and later the photograph) appears to overwhelm the social or political meaning of the image whereas the reverse is true of those human images that are not portrayed as honorific: those in the press, ethnographic photographs and mug shots. In an argument that is useful for our understanding of Warren and Brandies, Osucha, argues that this clear distinction between two types of image starts to come apart at the time Warren and Brandeis were writing of their outrage at the press. With the invention of the Kodak camera, newspapers reproduced images that would previously have been viewed as honorific but, as a result of appearing in the press, appear repressive in that they were no longer merely seen but also consumed. This, she argues, is the major source of Warren and Brandeis’ concern. Osucha adds an interesting observation, that for a time commercial circulation of white images produced a tension and were not initially seen as losing their honorific quality. This occurred because images of white persons were viewed as less degraded than the portrayal of black persons. However, this was only temporary. By 1890 when Warren and Brandeis were writing, such images had taken on a more degraded character associated with the commercial activity of the press. In other words, Osucha argues that – for a time – the image of the white person could appear to be “selfpossessed” in comparison to the commodified black person but that this distinction became unstable; that by 1890 the demeaning image of black persons has opened the door to understanding any human image in the press as demeaning. The position is complicated by Osucha’s use of the term “self-possession” because it draws together two different ideas both of which are potentially appropriate to the situation. Someone could be viewed as “self-possessed” in terms of being composed and dignified under pressure. However, the term “self-possession” also evokes G. Cohen’s reference to “self-ownership” and the idea that one is not a commodity for others because one possesses oneself. As I will discuss in Chapter 4 on Locke, this is the same ambiguity that occurs with the current employment of “self-ownership” in political

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theory. In her analysis of Locke, political theorist Janet Coleman traces the slippage between the modern term “self-ownership” and the pre-modern term “dominion”. Employees in contrast to slaves have “self-ownership” in that they are viewed as owners of their own abilities, such as their ability to work and can sell this on a labour market. In contrast, “dominion” or “sovereignty over oneself”, is a pre-modern concept. As Coleman explains: To have inalienable rights over one’s own powers to preserve and defend oneself is a long-enduring pre-modern understanding of dominium as sovereignty over oneself not ownership of that self. To have a right, consequent on a duty, to preserve mankind in general, after securing one’s own preservation, does not mean one “owns” mankind. (Coleman 2005, 144 fn. 17) I suggest that it is this depiction of “sovereignty over oneself” that better fits with Osucha’s situating of Warren and Brandeis’ paper. By considering Warren and Brandeis through the lens of race, Osucha is able to illustrate a further missing piece of their argument. In their defence of the upper class white family, and in particular white women, from publicity, I have already shown that they ignored the way in which arguments entailing privacy were employed to give immunity to violent husbands. In that instance, it is the husband’s rule that should not be subject to publicity in case he is degraded by ensuing criticism. In addition, as Osucha explains, Warren and Brandeis’ influential polemic against the indignity of privacy invasions fails to consider the existing degrading images of black persons, which implicitly framed the context of this debate. The concern to safeguard white women from the degradation that is associated with portrayals of her body in the media, for example, Roberson v. Rochester Folding Box Co. (1902)4 reflects the same fear as the concern about the naked and the nude in art. In contrast to the courts’ concerns to avoid the humiliation of white men by opening up the household rule to public criticism, white women were (and still are) viewed as more vulnerable to humiliation in that they are not viewed as “at home in their bodies”; associated with their historical lack of self-possession or dominion. The “preservation-through-transformation” that Siegel (1996, 2178) demonstrates with regard to the common law preservation of husbands’ right to beat their wives can also be illustrated within the codified European legal tradition. Again, these legal examples can illustrate the odd role of privacy in dealing with the tensions of marriage that emerged with the rise of the sentimental family, which challenged the feudal underpinnings but maintained the traditional hierarchy of the sexes.

4

Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902).

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European law and privacy In her chapter “Private Contract and Public Institution: The Peculiar Case of Marriage”, Ursula Vogel (2000) traces the way that marriage became simultaneously viewed in terms of both contract and sacredness. Again, this analysis is not merely historical, but is relevant to contemporary views of the ‘private sphere’ of the domestic home and relationships of intimacy. The background of the meaning of marriage can still be seen in debates over gay marriage today. To demonstrate this point, Vogel starts by considering current views of marriage in the West. She comments that some people characterise marriage as being in crisis because of the extent of divorce and number of single parents, associating this with a breakdown in current society’s moral cohesion. Others argue that marriage was an unjust legal fiction that no longer accords with our experiences and expectations. I would add that both feminists and neo-liberals argue that historically women had less leverage to negotiate – an illustration of why particular arguments should be understood within their wider conceptual framework. Feminists are concerned with attacking women’s subordination whereas neo-liberals’ analysis of marriage accepts such subordination as part of market relations, as I discuss in Chapter 5. As Vogel argues, in order to understand the role of privacy today it is necessary to understand the history of the private sphere. In other words, given that the split between public and private spheres was organised in a manner that was detrimental to women, the private sphere cannot be viewed simply as a neutral and residual category to the public sphere. Like Siegel, Vogel is interested in earlier transitions in marriage and privacy. She also traces a change in the meaning of marriage in European legal thought in the first half on the nineteenth century. Its meaning first draws from the earlier canon law that was superseded by the revolution in France and she argues that: In order to strike at the freedom of divorce, the reaction had to move marriage into a discursive terrain that would be inaccessible both to the language of individual rights and to the regulatory powers of the state. (Vogel 2000, 178) Historically, the Christian meaning of marriage and the judicial powers of the Catholic Church represented a radical break with the tribal and familial customs of ancient Europe. The collective authority of the community over marriage gave way to an emphasis upon marriage as voluntary agreement between the parties. The question raised above, in this context, becomes: how was this voluntary agreement reconciled with the subordination of the wife? In this instance, unlike that of later legislators or social

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contractarians, the legal fiction related to an analogy involving Christ. The husband was positioned as Christ and the wife was viewed as taking the place of the Christian Church. Hence, in the marriage vows, women were to consent of their own free will to bind themselves to obey their husbands whereas men were to promise to continue to love. This fiction is employed to try to imagine a hierarchy based upon consent. It is aimed at dealing with the cognitive dissonance of this relationship, discussed in my analysis of Nagel’s work, above. It was unlikely that everyday relations were defined by such legal fictions, women rarely having been passive victims. However, such legal fictions, like philosophical writings of the time, give us some insight into the arguments that were employed to justify the existence of an unequal ‘private’ sphere. The Church viewed the marriage contract as a sacrament. The sacrament was believed to change the ontological state of the parties. Having been witnessed by God it could not be revoked without incurring his wrath. This is an idea that draws upon an older conception of the oath from Ancient Greece. There is a parallel between the idea of a change in the ontological state of the parties and the actual change in legal status of the woman into a wife, which is therefore portrayed as more than the adoption of a civil slave contract in which she lost rights. This grandiose image of such a change closed the way to divorce. Giorgio Agamben has asked: What is an oath? What is at stake in it, if it defines and calls into question man himself as a political animal? If the oath is a sacrament of political power, what is in its structure and its history that has made it possible for it to be invested with such a function? (Agamben 2011, 2) Agamben draws a distinction between the oath conceived as bringing something new into existence – a change in ontological state – and simply bringing together what has already been created by something else, for example by the law. In the case of marriage, both law and Church were involved in creating this change. The marriage contract as a legal contract was backed by the risk of damnation in the afterlife if the oath were to be broken. Vogel sketches how, within European canon law, individual consent became important as signifying the union of Christ and his Church, love and obedience. It committed the couple to obligations that were not of their own choice. Canon law in relation to marriage therefore had an ambiguous status as both human law and also as “pre-ordained in a higher, divine order of things” (Vogel 2000, 180). Vogel traces the ambiguity of freedom in this area. Marriage was no longer based upon the authority of feudal lords or slave masters. However, the meaning of the couple’s consent was limited to a particular type of

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hierarchal relationship. It was a contract with implied terms that were not agreed by the couple but were viewed as arising from God, whose role came to be taken over by the state. Importantly, the freedom to consent to marriage within canon law did not “entail freedom of exit” from the contract (Vogel 2000, 181). Ecclesiastical law did treat men and women as having equal obligations with regard to sexual fidelity and the conjugal “debt”, i.e. the obligation to have sex. The woman had the same access to the ecclesiastical courts to enforce such intimate matters. However, in other areas, the husband was the woman’s master and the Church did not challenge the severe civil restrictions upon women. This included their endorsement of husbands’ violence against his wife. Vogel describes how, after the French Revolution, the conservative framers of the Napoleonic Code were faced with a problem. They wanted to block the possibility of divorce but did not want marriage law to return to Canon law. In order to maintain state control through the civil courts, marriage had to be viewed as a civil contract. However, they recognised that the logic of contract opened the way to divorce. A hundred years earlier, in England, this is clear in Locke’s (1988, bk. II, §62) argument for divorce, once children of the family are in a position to support themselves. The solution, proposed by Jean Étienne Marie Portalis, the leading drafter of the French Code Civil of 1804, was to portray marriage as the “sacramental contract”. Portalis emphasised the higher authority of nature. Following Rousseau (1991), he characterised the sentimental family as drawing from a romantic view of dynamic, creative nature. He claimed that, guided by nature, sexual desire turns into mutual concern and devotion, making it into a permanent bond. With this move he squared the circle: he shifted the emphasis away from the idea of contract and renders divorce itself unnatural, whilst maintaining some reference to contract so as not to concede the authority to administer marriage law back to the Church. Rousseau’s system, which inspired Portalis, and his image of the sentimental family is particularly problematic for women, whom Rousseau argues are to be trained for a life of obedience (1991, bk. V). Women are not able to be citizens nor are they able to gain the status of “natural men”, who are able to be moral by standing up to others. This is blocked in Rousseau’s framework because women must always be concerned about the judgment of others. They are to be situated only in the home, in a life dedicated to pleasing men. Rousseau is not liberal. His domestic home is not envisaged as one side of a liberal public/private divide. Instead, Rousseau’s ideal was of the Spartan woman who would be grateful that her son had died fighting for the state. Laws are to be decided by the general will, which will not guarantee liberal rights, even for men. Just as married women continued to be viewed in terms of hierarchical status rather than as free and equal persons who take part in a contract, so the poor continued to be viewed in terms of tutelage. Both these positions

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are ostensibly inconsistent with liberalism, which envisaged free and equal persons and yet had to find ways of dealing with relationships that continued to be unequal. Portalis employed the standard liberal argument that there were moral obligations that could not be enacted in law without imposing the good, which would be a move towards totalitarianism. Robert Castel (2003) traces the treatment of the poor to show that there is no straightforward move from status to contract. On the model of the family, the ‘patron’ employer inherited a paternal role with regard to employees. As discussed above, the patriarchal family was viewed in terms of a private sphere – such that the state would not interfere with it – and yet the state structured the relationship by allowing wife beating. Similarly, Portalis would not enact a code that would “impose morality” within the workplace – a position that is similarly based upon a contract which denoted equality and yet also re-enacted old status relationships. Theorists, such as Nagel, who worry about the liberal state interfering within the ‘private realms’ of either the domestic home and workplace, do not acknowledge the extent to which the liberal state shapes these contractual relationships. This occurs not only through the use of terms that are implied into the contract but also by the way in which the state fails to regulate power relationships. As discussed above, the state’s use of privacy arguments allowed it to regulate the private sphere by leaving the relationships based upon subordination intact. This had exactly the same effect as finding in favour of the husband in the wife beating cases described above. Vogel draws a parallel between Portalis’ dilemma over marriage and the later problem of Karl Friedrich von Savigny. Later in the 1840s and the 1850s, Savigny sought to reverse the liberal divorce law of the Prussian civil code. This provides further insight into the way that legislatures had difficulties in trying to maintain legal justifications for denying women rights both to escape violent husbands by leaving the home and through divorce. I am interested in the role that privacy played in this struggle, which sets the scene for our changing experience of privacy. Savigny aimed to create a modern system of private law that guaranteed contractual freedom and yet was conservative with regard to divorce. Vogel argues that, despite the differences in culture, Savigny and Portalis were faced with very similar dilemmas that were resolved to women’s detriment in similar ways. In Savigny’s case, the need for contract was not only to confirm state law (rather than canon law) but also to make jurisprudence appear as if it were a scientific discipline. Whereas Portalis appealed to a romantic vision of nature, Savigny, also emphasises the non-contractual element of marriage, while simultaneously maintaining it as an actual contract. As a contemporary of Hegel, Savigny discusses marriage in terms of sittlichkeit, that is, the demands of ethical life that are communal in contrast with Kant’s morality based upon individual duty, reason and autonomy. Although Hegel was critical of Savigny, Hegel’s view of marriage

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in his Elements of the Philosophy of Right (1991) does emphasise such an ethical nature, but avoids Savigny’s contradiction by rejecting the idea of marriage as a contract. Like Portalis, Savigny attempts to reconcile a contradiction: to justify conservative laws that prevented divorce and reinforced women’s subordinate position within marriage, while also maintaining marriage as a contract. The image of marriage as a special sort of “romantic” or “sacred” contract was employed in both cases to avoid the two more coherent positions available: (1) the treatment of the marriage contract as a merely contract, opening the way to divorce; or (2) reverting to ecclesiastical interpretations and increasing ecclesiastical power at the expense of the state. In both the examples given by Vogel, there is a link between law and philosophy. Framers of the law draw upon certain aspects of a philosopher’s work, Rousseau and then Hegel, while ignoring, or being blind to, the clear internal contradictions in the way in which they adapt these conceptual frameworks. How is this relevant to privacy today? Siegel illustrates how contemporary legal debates draw upon the idea that battery in marriage should be treated differently from other violent crimes. As discussed above, she illustrates how US laws on marriage draw directly from the idea that marriage represents a different private realm, such that the usual criminal law does not apply. Similarly, the question: “what is meant by the marriage contract?” is still torn in two contradictory directions. On the one hand, in institutions in the (mostly) secular West, it is viewed as a contract, in as much as it is an agreement between two supposedly juridically equal parties. On the other hand, the question of gay marriage, which would be consistent with contract, is still subject to political struggle. Marriage is also associated with romantic ideals and the idea of a change in status that is a legacy of Christian thought about marriage. In her analysis of contract, Pateman argues that it is through contracts that subordination is managed in modernity. In supporting this claim she draws together the marriage contract along with the employment contract.

Vogel and Pateman I will consider Pateman’s work, mentioned earlier, in more detail in Chapter 4. However, I should note, at this point, that Vogel takes issue with Pateman on the question of whether contract, in this case the marriage contract, itself gives rise to women’s subordination. In her brief criticism of Pateman, Vogel misses Pateman’s central claim, which focuses upon the legal fiction of “property in the person”; the fiction that the weaker party to the marriage and employment contract agrees to exchange a part of themselves. (In this way, Pateman brings together an analysis of marriage and employment, along with questions of citizenship.) As discussed above,

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Kant’s (1996) clear position in The Metaphysics of Morals, discussed in the last chapter, explains the point that this “property in the person” cannot be alienated from the unity of being a human being. In practice, this means that the subordinates in both the marriage and employment contracts must turn up and be told what to do. Hence, Pateman’s argument that contract is employed in modernity to manage subordination does not rest upon the individualism of contracts but upon the fiction that the weaker party is exchanging property in the person. I will end by comparing Vogel’s useful analysis of marriage, outlined above, with Castel’s (2003) From Manual Workers to Wage Laborers: Transformation of the Social Question. Both Vogel and Castel illustrate that there has not been a straightforward move from status to contract. Vogel traces the marriage contract and Castel the emergence of wage labour. He shows how wage labour was initially stigmatised but, with the development of the welfare state, comes to mean more than simply an exchange of money for labour power. At this point, Castel argues, the wage labourer gains rights to a pension, welfare and other security that is associated with this position. Castel’s work is based purely on an analysis of the development of the working man with only occasional references to women. Vogel’s chapter (and Pateman’s analysis) represent the shadow part of his history of paradigmatically male subordination: the development of marriage. Both marriage and employment should be considered together because marriage represents an important part of the story of subordination; the way in which both contract and status relationships have played out and continue to do so, as illustrated by debates regarding gay marriage. This has had an effect upon the way in which privacy has been conceptualised. Traditionally, both the working class and wives have been viewed as unable to be autonomous; as being dependent upon others for whom they work within a private realm: the domestic home and the area of the market and private interests. I will examine the relationship between autonomy and privacy in the next chapter.

Bibliography Agamben, Giorgio. 2011. The Sacrament of Language: An Archaeology of the Oath. Translated by Adam Kotsko. Stanford, California: Stanford University Press. Barthes, Roland. 1981. Camera Lucida: Reflections on Photography. Translated by Richard Howard. New York: Hill and Wang. Bayley, John, and Gore Vidal. 1984. “Cracking ‘The Golden Bowl.’” The New York Review of Books, March 1. www.nybooks.com/articles/archives/1984/mar/01/ cracking–the–golden–bowl/. Castel, Robert. 2003. From Manual Workers to Wage Laborers: Transformation of the Social Question. Edited and translated by Richard Boyd. New Brunswick, NJ/ London: Transaction Publishers. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership Before and After Locke: Or, When Did Common Decency Become a Private rather than a Public

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Virtue?” European Journal of Political Theory 4 (2): 125–45. doi:10.1177/ 1474885105050446. Floridi, Luciano. 2011. The Philosophy of Information. Oxford: Oxford University Press. Goodin, Robert E. 1985. Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities. Chicago/London: University of Chicago Press. Hampton, Jean. 1992. “Correcting Harms versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39: 1659–1702. Hampton, Jean. 1998. “Punishment, Feminism, and Political Identity: A Case Study in the ‘Expressive Meaning of the Law.’” Canadian Journal of Law and Jurisprudence 11 (1): 23–45. Hampton, Jean. 2007. The Intrinsic Worth of Persons: Contractarianism in Moral and Political Philosophy. Edited by David Farnham. Cambridge: Cambridge University Press. Hanaford, The Rev. Phebe A. 1899. “The Whipping Post for Wife-Beaters.” MedicoLegal Journal 17 (1): 108–9. Hegel, Georg Wilhelm Friedrich. 1991. Elements of the Philosophy of Right. Edited by Allen W. Wood. Translated by Hugh Barr Nisbet. Cambridge/New York: Cambridge University Press. Hirschman, Albert O. 1970. Exit, Voice, and Loyalty Responses to Decline in Firms, Organizations, and States. Cambridge, MA: Harvard University Press. Hobson, Barbara. 1990. “No Exit, No Voice: Women’s Economic Dependency and the Welfare State.” Acta Sociologica 33 (3): 235–50. Inness, Julie C. 1992. Privacy, Intimacy, and Isolation. New York: Oxford University Press. James, Henry. 2009. The Golden Bowl. Reprint. Penguin Classics. Kant, Immanuel. 1996. The Metaphysics of Morals. Edited by Roger J. Sullivan. Translated by Mary J. Gregor. 2nd revised edition. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Locke, John. 1988. Locke: Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press. Nagel, Thomas. 1998. “Concealment and Exposure.” Philosophy and Public Affairs 27 (1): 3–30. doi: www.jstor.org/stable/2672839. Okin, Susan Moller. 1989. Justice, Gender, and the Family. New York: Basic Books. Osucha, Eden. 2009. “The Whiteness of Privacy: Race, Media, Law.” Camera Obscura 24 (70): 66–107. doi:10.1215/02705346-2008-015. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate Publishing. Richardson, Janice. 2011. “The Changing Meaning of Privacy, Identity and Contemporary Feminist Philosophy.” Minds and Machines 21 (4): 517–32. doi:10.1007/s11023-011-9257-8. Rousseau, Jean-Jacques. 1991. Emile, Or, On Education. Translated by Allan David Bloom. Harmondsworth: Penguin. Sekula, Allan. 1986. “The Body and the Archive.” October 39 (December): 3–64. doi:10.2307/778312. Siegel, Reva B. 1996. “ ‘The Rule of Love’: Wife Beating as Prerogative and Privacy.” Yale Law Journal 105: 2117–2207. doi: www.jstor.org/stable/797286. Solove, Daniel J. 2008. Understanding Privacy. Cambridge, MA: Harvard University Press.

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Vogel, Ursula. 2000. “Private Contract and Public Institution: The Peculiar Case of Marriage.” In Public and Private: Legal, Political and Philosophical Perspectives, edited by Maurizio Passerin d’Entreves and Ursula Vogel, 177–99. London/New York: Routledge. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220. Warren, Samuel D., and Louis D. Brandeis. 1984. “The Right to Privacy.” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 75–103. Cambridge: Cambridge University Press,. Weber, Max. 2004. “Politics as a Vocation.” In The Vocation Lectures, edited by David S. Owen and Tracy B. Strong, translated by Rodney Livingstone, 32–94. Indianapolis: Hackett Pub.

Chapter 3

Autonomy, selfhood and privacy

Introduction How we conceptualise autonomy – the ability to live by your own rules/laws – is important for our understanding of privacy. As discussed in Chapter 1, privacy and autonomy have been linked in the following way: privacy allows for an area of creative experimentation free from any urge to self-censor that arises as a result of potential publicity that exposes people to criticism (or worse) from others (J. S. Mill 1977). Whereas Mill focuses upon the consequences of privacy, Kant makes the same argument against “spying on the morals of others”, as a sign of respect: [T]o take scandal at what is merely unconventional but otherwise in itself good is a delusion … an error dangerous and destructive to virtue … spying on the morals of others is by itself already an offensive inquisitiveness … which everyone can rightly resist as a violation of respect due to him. (Kant 1996, [464–466], §40, 256; cited in Anderson-Gold 2010, 33–34) Hannah Arendt also employs Kant’s view of autonomy in arguing that the right to privacy also allows individuals to separate themselves from others in order to think and judge for themselves (Arendt 1989). Both Kant and Mill explicitly associate privacy and autonomy with morality, enlightenment and social progress. In the first section of this chapter, I will draw upon some of the issues discussed in the last two chapters, to illustrate their different conceptions of the relationship between autonomy and privacy. Mill’s position is more straightforward. I will outline this briefly and then focus upon Kant’s own writings. Kant’s conception of autonomy produces a more complex framework than the adaptations of his view of free and equal persons discussed in Chapter 1. I explain Kant’s conception of autonomy by an outline of the sublime experience, given in the Critique of Judgment (Kant 1987) and in comparison with his opposites: the vagrant and the woman. I comment on the implications of these positions for

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privacy and then expand upon this analysis by briefly explaining a critique of Kant’s metaphysics by the feminist philosopher, Christine Battersby. I then relate Battersby’s position to that of Jennifer Nedelsky on relational autonomy. One central aspect of the concept of autonomy is the extent to which individuals are understood to be influenced by a dominant, or hegemonic culture and to act in ways that are not in their best interests; the concern that our preferences do not arise simply from ourselves but are shaped or even manipulated by other forces (Lukes 2005). For example, Nedelsky expresses this point by saying that we are “constituted, yet not determined by the web of nested relations within which we live” (Nedelsky 2011, 45). There are a number of different conceptions of self that will satisfy Nedelsky’s criteria. In fact, few would argue either that we are totally overdetermined by other forces or, at the other extreme, that we are not shaped by our history, culture, or environment, which includes the concepts of self that we hold and options available to us. As J. Cohen notes, some privacy theorists occasionally come close to the latter position in the US, for example, Rosen’s comment that, “I’m free to think what I like even if the state or the phone company knows what I read” (Rosen 2001, 166; cited in Cohen 2012, 115) comes close in failing to recognise the possible chilling effect of such monitoring. To consider the best way of examining what can be meant by the idea that we are “constituted yet not determined” by others, I finish this chapter by introducing two different theoretical frameworks that will form the basis of further chapters: Chapter 5 (neo-liberalism) and Chapter 7 (Spinoza). First, I twist the question of “how can we be viewed as autonomous?” to ask “how does our image of an autonomous self function in society? I turn to Foucault’s analysis of neo-liberalism to consider Gordon Hull’s Foucauldian approach to online consent forms employed such that we give away our privacy. Most of us will have had the experience of clicking ‘accept’ to unread privacy consent forms, while not feeling that they are generally “determined” by others (and yet also simultaneously having little say in this matter). Hull’s argument is that, when called upon to perform the mundane action of agreeing to online consent forms to give away privacy, the individual is positioned as responsible for his or her decisions that are, in fact, forced by social circumstances. People would prefer not to give away their privacy or click on agreements they cannot possibly have time to read or negotiate. This non-choice requires a social solution that is obscured by an appeal to the “autonomous individual” and the characterisation of requests for privacy as merely a type of market preference. Further, this repeated action reinforces the idea that we should think of ourselves as if we are “impossibly autonomous” in ways that are against our interests. I show how Hull’s argument is, in this area, an extension of Nedelsky’s work on autonomy. She is concerned that some images of

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autonomy (and the image of a self as a bounded territory, excluding others and otherness) detracts from an analysis of power relations whereas Hull illustrates how this image can function as a technique of power in the area of privacy. Finally, I suggest ways in which Nedelsky’s claim that relationships are “constitutive not determinative” can be given some actual content by a different model of self, that based upon Spinoza. This view of self shares with Battersby the image of a self that emerges as a result of relations with others. It also shares with both Battersby and Foucault an analysis of the way that power is always at play in the constitution of “who we are”. This is a brief introduction to Spinoza, whose work will be applied to privacy in Chapter 7.

Autonomy: Mill, Kant and the sublime Mill does not divide private from public in terms of different spheres, such as household (and civil society) against the state. Instead, his division is between self-regarding and other-regarding activities, that is: those activities that only affect oneself and those that impact upon others. This division enables both Mill and Harriet Taylor Mill to argue for state interference against wife battery in the home (J. S. Mill 1984; H. H. T. Mill 1998). This division also forms the basis of Mill’s argument in favour of respecting the individual’s decision to harm him or herself, providing others are not harmed. The conception of privacy is therefore of an area of life (“self regarding activities” rather than the domestic home) that is cordoned off against others in order to allow “experiments in living”. As discussed in Chapter 1, for Mill as a utilitarian, privacy is necessary for individual happiness but it is also a social good because it facilitates social progress. Recall, this is premised upon the fact that we do not know what constitutes a good life and so can benefit by learning from others’ examples of the benefits and burdens of their diverse life choices. This assumes that individuals are not so ground down that they can meaningfully be described as having choices. In contrast to Mill, for Kant, autonomy is constitutive of duty. We are autonomous when we obey a law that we give to ourselves: the general form of which is the categorical imperative: “act only in accordance with that maxim through which you can at the same time will that it become a universal law” (Kant 2012, [AK421] 34). In an argument that draws from his Christian heritage, Kant states that we behave freely by obeying this imperative. He envisages morality as depending upon the faculty reason. A moral action, an action taken only in accordance with duty, is one for which only reason determines the will. As discussed briefly in Chapter 1, it would be unreasonable and inconsistent if we treated others in a way that we could not wish ourselves to be treated, that is, as free and equal persons.

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Decisions determining moral actions involve standing aside from others’ view points to think for yourself. This is also an appeal to the question of what actions could be universalised. Kant argues that all reasonable persons would, indeed must, make the same moral decision. Following the categorical imperative therefore allows you to act as if you were rational and hence free. Kant’s position can be expressed in the following way: we do not know if rational creatures exist because such pure rationality is a transcendent intellectual Idea and not an object of knowledge. Purely rational beings (noumenal selves, which he terms “persons”) would not need the guidance offered by the use of the categorical imperative. We employ the categorical imperative to help us act in the way that we would if we were purely rational. With regard to citizenship and morality, it is our possible status as rational beings that also means we should be treated with respect, as able to set our own goals, rather than living under another’s tutelage. Historically, women, the working class and non-white races, amongst others, were not viewed as persons; either in law – with the legal rights this entails – or in Kant’s moral theory in which personhood is associated with full rationality (in contrast to humanity or animality Kant 2009, 26; cited in Battersby 1998, 64). As I will discuss below, Nedelsky argues that autonomy, such as that described by Kant, is impossible to obtain. This is an important argument with regard to the law but it does not defeat Kant’s position, given the structure of his argument. He is not claiming that anyone is actually fully rational (as an empirical fact). Instead, Kant is describing how a fully rational creature – if one existed – would behave. However, as I will discuss, this is an idea of autonomy that he links with white, middle and upper class men who, while not always rational, supposedly come closer to being able to act in accordance with this ideal. I will now turn to Battersby’s arguments (particularly Battersby 1998, 61–69) to illustrate what is at stake in Kant’s image of autonomy.

Battersby on Kantian autonomy While Kant writes about autonomy elsewhere, I want to consider the image of autonomy as presented in his aesthetic work, the Critique of Judgment because this is where he portrays a stark and evocative picture of autonomy. I think that this image still resonates today but is problematic. I will outline Kant’s position and then consider Battersby’s analysis, from which I draw in this section. In Kant’s description of the dynamic sublime in art, Kant describes two stages to the viewers’ experience. Firstly, he (and it is a ‘he’) is disturbed by the might of nature, of the terrifying storm or violent sea, which, when portrayed in art, illustrates nature as threatening to us. In the second stage, he recovers from this tension as he realises that he is a

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creature of reason and, as a result, he could stand firm against nature. Kant portrays an image of a self that can face the storm and know that he would behave morally, irrespective of the circumstances in which he finds himself; that he can resist being overpowered by terror and stand up against this external threat. The sublime in art therefore has a positive effect on such a viewer, who is able to appreciate it because it reminds him of his moral vocation and the role of reason within it. For me, this is a popular image of autonomy because it captures: courage, separation from a threat and a spirit of independence from something, in this case nature, that lies outside of himself. As Battersby point out, Kant’s person is autonomous in that he can demonstrate an ability to be governed by his own moral laws, rather than submit to threats from outside. He is not influenced by either outside forces or natural instincts within himself (Battersby 1998, 63). I want to examine this image of independence in a social context, beyond that discussed in Kant’s aesthetic work. It is possible to generalise the image of independence and courage in order to consider any threat, not only the threat from the might of nature, but also from other individuals. In the West, we rarely see individuals facing the might of nature on their own, even in an environmental disaster. Those who voluntarily take part in extreme sports use technology that they obtain through society. The more mundane threatening situations are usually those that are social, in which people are bullied and degraded, for example, and asked to perform work that they feel is morally wrong. Ironically, given Kant’s ‘hero’, it is not the comfortable white middle class men who are usually troubled over dilemmas concerning their livelihoods. In circumstances in which individuals are most vulnerable, it is collective action that is more likely to succeed because we are more powerful when we act in concert, as I discuss in the final section. In his later Anthropology, Kant (2006) is clear that not everyone can appreciate the sublime in art, relying upon attitudes that are racist, sexist and snobbish. Western women, he claims, could appreciate the sublime but may be pregnant and so should not be encouraged to stand up to the might of nature, a disposition which could risk the foetus (Kant 2006; Battersby 1998). Western women have this potential to appreciate the sublime in spite of the fact that Kant views courage as a “masculine virtue” (Kant 1997). They can be contrasted with others whom Kant views as too weak to experience the sublime. These include men who have been weakened by trade (Kant 1987) and “oriental men” (Kant 2006; Battersby 2007). NonWestern women are not mentioned. The idea that autonomy is associated with independence dovetails with Kant’s position, reflecting laws of his time, that those who are dependent upon others for their livelihood are merely passive citizens. These passive citizens included some workers and all women. Here, the link is drawn between autonomy and the financially independent white man, whose

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independence ensures that he is not subject to duress or, at least, undue influence. This association is also stressed (while being subject to criticism) by the republican tradition in their definition of freedom as non-domination (Pettit 1996; 2000; Skinner 2002; 2006; 2008; Gourevitch 2011; 2013; 2015). How does this analysis of autonomy affect privacy? Retuning to Mill as a comparator, recall that Mill is concerned that there should be an area of privacy that allows individuals to live unconventional lives that do not harm others, unthreatened by public opinion. While Kant concurs, Kant’s person (his ‘hero’) does not require such sanctuary. His rationality allows him to stand firm in the face of such an external threat, including peer pressure. However, as Arendt (1989) stresses in her reading of Kant, he needs peace away from others in order to think and to make moral judgments. Persons are able to avoid being in a state of tutelage and to think for themselves in order to carry out their duty. In “An Answer to the Question: ‘What is Enlightenment?’”, Kant (1991) stresses that it is necessary to avoid the interests of “guardians” who would happily do our thinking for us, particularly for the “fair sex” (Kant 1991, 54). In explaining this image of autonomy as entailing courageous displays of independence, Kant sets up a different public/private divide from that of Mill. They both argue in favour of free speech in public because of its important role in social progress. However, Kant argues that we should obey in private, by which he means “private office” or employment, and speak frankly in public, which he demonstrates as the public intellectual writer of “An Answer to the Question: ‘What is Enlightenment?’”, itself aimed at the public. Furthermore, Kant envisages a separation between self and other that goes beyond the requirement to have space in order to think and to judge. As Battersby (1998) argues, Kant’s conception of selfhood is itself envisaged in terms of a split from otherness. This can be demonstrated in two areas of Kant’s work. First, from the analysis of the person who appreciates sublime art discussed above, “who he is” involves being separate from, and avoiding being overwhelmed by, the might of nature. The image is of a creature that can stand up to – and has a boundary against – an external threat. Second, this view is of an individual, separated from what is outside of it, also occurs in Kant’s description of the conditions of possibility of being a self (the transcendental self). In the Critique of Pure Reason, Kant (1998) views us as structuring the way that we perceive the world by imposing a particular framework upon it, such that we can see the world as structured in space and and our perceptions of the world as occurring within time (space is the form of “outer sense”, time is the form of “inner sense”). Therefore, logically there must be some thing “within us” that exists to structure the world in this way: the transcendental subject (or self). The transcendental self is the counterpart of the transcendental object, i.e. it is that which must logically exist in order for us to structure the world in

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a particular way by imposing a framework upon it so that we can perceive it as ordered. As Battersby notes, it is not simply our view of nature that is constructed by the way in which the transcendental self imposes a grid upon data from the world (see Battersby 1998, 61). This way of “attaching images to concepts and bringing them to consciousness” also allows us to conceptualise ourselves as unitary (Battersby 1998, 62). In both these examples – the transcendental self and the person who experiences the sublime – there is a self that is based upon a split from its outside or what it is not. Importantly, Battersby radically reworks this split within Kant’s view of the transcendental self in order to think about a self and its other that emerge together over time. This is in contrast to images of the self that define it in contrast to its outside (in other words, that define it against what it is not). Battersby supplies the conception of self that Nedelsky needs, as I will show. This is because Battersby is able to rework Kant in ways that also differ from the alternative image of autonomy in which a self, that is already formed in adulthood, is still open to influence by otherness; that appears “Kantian” but somehow slightly open to influence. Instead, she envisages a self that emerges over time as a result of its relations with others. This self is not defined by its outside – or by what it is not or through a cut from the other (Richardson 2004; 2007; 2011a; 2011b). Before I turn to Nedelsky’s relational autonomy, it is worth considering the positive aspects of Kant’s view of personhood. Kant’s image of courage in the face of danger, and of being able to stand up to others to obey one’s own conscience, is an attractive quality, particularly for creators of popular culture whose fantasies are of lone fighters. However, it is often the case that it is individuals within subordinate groups who are humiliated or attacked in ways that single them out. A Kantian view of individual autonomy has the potential to reduce a political problem to one that blames the individual for not having the strength to stand up to threat, ripped from its social context. The threat from degrading treatment differs from the sublime experience in that it is characterised by its insidiousness and relentlessness, rather than as one dangerous moment. It is characterised more by being repeatedly ground down by petty viciousness rather than being faced with the need for a grand and decisive action. Such qualities of standing up to a threat and obeying your own rules are still valued in the West today, particularly in the light of twentieth century totalitarian regimes and social-psychological evidence that such courage is rare. This is illustrated by Milgram’s (2010) obedience experiments in which people are asked to electrocute a stooge as part of, what they were told, is a memory and spelling test. The depressing evidence of the test was that the majority of people in the experiment found it difficult to say no to the person in charge. Pentland’s (2014) recent studies of the influence of others, the ways in which we can be “nudged” in certain directions provide

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additional examples, discussed in Chapter 1 – albeit these are sometimes claimed to be for our own benefit. Kant, while in some ways influenced by Rousseau’s politics, does not share his analysis of the role of natural sympathy. Kant’s hero reaches the conclusion that an action is wrong through the use of reason alone, rather than as a result of sympathy with the victims. He is aware of feelings, however. For example, Kant worries that there is a risk to the poor that they will be treated as less than persons and emphasises the importance of giving charity in a way that maintains their dignity, discussed earlier. However, this is based upon the moral fact of equal moral worth of all persons and not focused upon hurt feelings per se (for further discussion of the role of emotion in Kant see Schott 1997). Battersby (1998, 66) also points out that Kant cautiously approves of actions motivated by feeling when performed by women and children, the idea being that such mimicry of duty based action is better than nothing. In short, for Kant, moral actions are duty based and performed by autonomous persons who are not influenced by either events external to them or any emotions internal to them. While standing up to others in order to think for yourself is rightly admired, especially if you are being asked to electrocute someone, in other circumstances the ability to refuse to be influenced by others may translate into mere bloody mindedness. It is a matter of good judgment. In other more mundane contexts, dismissing others’ opinions may be borne of arrogance or a concern with demonstrating status. In early modern thought, from Hobbes onwards, attacks upon the idea of the divine right of kings to rule opened the door to the potential for political disobedience by the progressive argument that we should not give up our ability to judge to others. For Spinoza, to be discussed below, it is simply not possible to give up your ability to judge. As part of modern political thought, Kant demonstrates both a regressive and progressive political position in his injunction to obey in private office but to have free speech in public. In the next section, I will contrast the Kantian hero, whose dependence upon the work of the working class and women is not acknowledged, with his opposites: the vagabond and the woman, in order to spell out different ways in which privacy is implicated in these views of autonomy.

Kant’s hero and his opposites There are two figures who stand at opposite poles to Kant’s autonomous individual, whose appreciation of the sublime was described by Kant in 1790. The first is the vagabond and the second the woman, as described in Kant’s Anthropology. These figures contrast with the Kantian hero on different grounds. An exploration of these figures will be employed to illustrate what is at stake in Kantian autonomy and its relation to privacy. I will start with the vagabond.

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In his history of the poor of the period, Castel describes the vagabond as a “negative individual”, someone who has complete “autonomy” as a result of being cut off from relations with others. Unlike Kant’s heroic (male) figure described as having the courage to be exalted by the sublime might of nature, the vagabond’s complete “autonomy” renders him or her abject and hostage to the might of nature on a daily basis: The vagabond is a being absolutely unencumbered (disaffiliated). He belongs only to himself, without being the “man” of anyone, nor being able to be included in collectivity. This is a pure individual, and as a result of this fact, one who is completely abject. It is through this individualized point that he is fully exposed: he is detached from the social fabric of those relationships of dependency and interdependencies that structured the society of the time. (Castel 2003, 693–4) Castel describes how, in pre-industrial France, only those who were both demonstrably unable to support themselves – preferably with a disfiguring disease much beloved of those giving Christian charity – and (importantly) integrated within a community, were able to receive support. He describes this application of charity in terms of “protections of proximity” (Castel 2003, chap. 1). Both the vagabond and the Kantian hero from the same European period, share their independence from any community ties – both also appear paradigmatically male in the imagination – but they differ along an important axis: their financial resources. Unlike the homeless today, whose lack of privacy and resulting social humiliations are detailed by Waldron (1991), the eighteenth century vagabond had privacy for most of the time – if the definition of privacy is to include isolation rather than control. This is a point about privacy that has been debated in analytic philosophy, in the context of whether someone would have privacy on a desert island rather than the isolation of the vagabond (Gavison 1980). In summary, Castel describes this “negative individual”, as suffering as a result of his “disaffiliation” – his privacy derives from being cut off from others but so does his abjection. This is not the individualism of the man with financial resources who is able to stand up to public opinion and even control access to himself and his affairs. While both these figures are cut off from others in ways that evoke the Kantian personhood, neither entirely fits. This is clearest in the case of the “negative individual”, given the position of the vagabond, whose ongoing struggle in the face of nature was not the stuff of the artistic sublime. In addition, the wealthy man – whose independence comes closer to the Kantian hero – only appears to be independent of others and hence their potential influence. This dependence is obscured as a result of two factors: (1) commodity fetishism – as a result of which the labour that went into the products he buys is hidden

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and appears as a quality of the commodity itself (Marx 1976); and (2) his wife’s work in the home, which is portrayed as a natural expression of her caring rather than work on which he depends (Fraser 1996). The fact that he is in a better position to control access to himself than either of his opposites under discussion (the vagabond and the woman) means that he may rarely feel threatened by anyone or feel the need to demonstrate courage. Compare this with those who speak truth to power – or risk their lives, social ostracism or humiliation by attacking racist, homophobic or gender norms, for example. As discussed, this is an area in which joining with others who are similarly positioned is strategically useful. It is also one for which autonomy is not so easily characterised as being cut off from others. While the Kantian hero and the vagabond are opposites in terms of their financial resources but share their image of being cut off from others, the Kantian hero and women are opposites with regard to the question of perceived dependency on others. As described above, for Kant, women’s morality does not involve standing firm against a threat (to think for themselves and hence obey reason) but of showing empathy and care to others in ways that may mimic proper duty based virtue (Battersby 1998, 66). In this situation, the Kantian woman has less privacy, being less able to control access to, and demands upon, both her body and her time. She is viewed as managing her dependence upon men – of negotiating and giving way to others. These are still a familiar stereotypes, also, as we have already seen, illustrated by the description of the later Mrs. Waythorn, described in “The Other Two” (Wharton 1904). Before leaving the image of the Kantian hero, the vagabond and the woman, it is worth briefly considering their experiences of autonomy and privacy today. As Waldron (1991) points out, with respect to the vagabond, the homeless are subject to daily humiliation and lack of privacy in the city. As Castel shows, those who were classed as vagabonds often left home in order to find work and were harshly penalised for their travels. Today, perhaps, their nearest equivalents are those who try to immigrate to Western countries and Australia, placed in detention camps (sometimes in other countries as in the notorious Manus Island) and often subject to violence. In contrast with the isolated vagabond, they may be accompanied by children. While also concerned with privacy, the plight of refugees raises issues about the need for publicity; the possibility of “sousveillance” by a weaker party, that is, of using surveillance technology to publicise their abuses. Similarly, prisoners have recognised the use of CCTV cameras as a double edged sword, both as an invasion of their privacy but also potentially saving them from violence, as detailed in empirical work on the use of CCTV in prisons (for example Newburn and Hayman 2002). Today the (comparatively) rich white man may be a wage worker. Castel (2003) traces the position of manual workers to wage workers and the way

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in which waged work lost its stigma of “dependence” and became associated with a number of rights and social status (see also Gourevitch 2015). Castel argues that wage workers experienced greater autonomy as a result of the emergence of the welfare state in the twentieth century. In opposition to (conservative) liberals’ argument that such social security produced dependency on welfare, Castel argues that the form of social insurance allowed workers greater independence from their communities and extended families. From this perspective, wage earners pay into the welfare state which acts as social insurer freeing individuals from some social bonds. Castel ignores the position of women who continued to experience dependence upon immediate family, given that the welfare system did not initially treat them as autonomous. However, as Wendy Brown (1995) points out, towards the end of the twentieth century, the state could be viewed as the “man” in the life of women in receipt of welfare benefits. This will include some measure of access and lack of privacy in the form of surveillance but aimed at providing support from destitution and independence from the family. The experiences of 50 US mothers on welfare support after the introduction of increased surveillance technology are detailed in Overseers of the Poor (Gilliom 2001). This illustrates the extent to which they are active and also co-operate to try to provide for their families. There were also instances of welfare workers reporting that they sometimes found it impossible to complete the computer based reports (on these women’s circumstances) correctly in ways that would not end the benefits that they knew were needed. As they could not argue with the new technology they ended up gaming the system, providing a short term but necessary solution. I will now turn from Kant’s view of autonomy to Nedelsky’s arguments for relational autonomy.

“Impossible autonomy”: Friedman, Battersby and Nedelsky Nedelsky (1991; 2011) has been critical of the popular image of autonomy as equated with independence from others. Her work on “relational autonomy” has influenced a number of works (for example: Friedman 2013; Piper and Veltman 2014). Kant is not the only target of this criticism but his conceptual framework provides a paradigmatic example of a person whose autonomy does not derive from society but from his (and, as discussed, it is paradigmatically his) own ability to reason. I will outline Friedman’s criticisms of “impossible independence” in her review of Nedelsky then, in the next section, consider how Nedelsky’s position includes but also goes beyond this analysis. I will then look at the extent to which a relational view of autonomy is associated with a different view of privacy. As discussed above, there are a number of criticisms that could be made

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of Kant’s description of autonomy. Although context should be irrelevant to the ability of a person to behave rationally, the image of independence from others includes both financial and emotional independence. Marilyn Friedman (2013; 2014) argues that “mainstream philosophers” now acknowledge the feminist argument that socialisation grounds moral and personal autonomy. Schoeman (1984) makes this point with regard to privacy, discussed in Chapter 1. Starting at one end of the spectrum, it is generally acknowledged that children need certain conditions in order to become autonomous adults; even for Kant they lack reason and are not autonomous. The point of dispute focuses upon the extent to which socialisation continues to play a part in understanding adults’ autonomy. Friedman (2013) criticises an extreme, what she calls: “masculine autonomy”, that is portrayed in the media and culture. This, she argues, espouses an impossible independence from others, envisaging someone who is not financially or emotionally dependent and who is therefore a self-sufficient atomistic individual. As discussed above, this “impossible independence” relies upon commodity fetishism (Marx 1976); and an ability to ignore dependence upon women’s work in the home (Fraser 1996). In her review of Nedelsky’s work, Friedman voices the following concern: Nedelsky claims that ‘relationships are constitutive, but not determinative’ (31). For Nedelsky, a constitutive relationship is one that ‘shapes,’ ‘forms,’ or ‘conditions’ something else (20, 21, 31). The concepts of shaping, forming, and conditioning are helpful, but a more precise definition of ‘constitutive’ would have been better yet. A precise definition would have helped the reader to understand how to differentiate constitutive influences from those interpersonal influences that are not constitutive of whatever is under consideration. (Friedman 2013, 329) This review makes it sound as if Nedelsky has in mind an autonomous self that shares the characteristics of a Kantian self but is then modified by being open to some sort of external influence. However, at times Nedelsky’s criticism of an image of a self as bounded against the outside makes her sound closer to Battersby’s radical reworking of Kant. Both Nedelsky and Battersby (independently) argue against the appropriateness of the metaphor of selfhood as a container that is bounded against its outside and deny the claim that the image is universal (as claimed by Lakoff and Johnson 1980). Nedelsky, writing from within the discipline of law rather than philosophy, associates the reference to metaphors of boundaries (to express an autonomous self) with the boundaries of private property. However, there is a difference in that Battersby is discussing a different ontology by re-working of Kant, such that she can envisage selfhood in terms that are relational. Nedelsky is mainly attacking a metaphor

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of boundedness, which elides power relations – although she also wants to rethink selfhood. Leaving this aside, if Nedelsky is simply expressing the view that we are influenced, but not totally dominated, by others, then her position is compatible with most views of selfhood, which differ widely. It should be noted that these human relations are not only with the living but with those who produced the culture into which we are born. As Marx comments in The Eighteenth Brumaire of Louis Bonaparte: Men make their own history, but they do not make it just as they please in circumstances they choose for themselves; rather they make it in present circumstances, given and inherited. (Marx 1996, 32) This comment reminds us that the relations that may be “constitutive” of “who we are” are not simply those with the living but also with the dead. Returning to Friedman’s quotation, her request for a definition of when relations are constitutive is addressed by Nedelsky when she points to relations within employment and with relatives and friends. I think what is required is an exposition of the conceptions of self and society that is more complex than can be captured in an ahistorical analytic definition, requested by Friedman. To address this, Nedelsky draws upon Arendt and the idea that human relations are not always predictable. Arendt describes the way that we can act (politically) with others to bring something new into the world, an ontology which makes the subsequent events unknowable. In addition, what may be a “constitutive” experience for some may not be for others because previous experience and knowledge opens them up to different encounters and influences. Similarly, an individual may be moved by an event or relationship at one point in time and not at others. I will now turn to Nedelsky’s relational autonomy in detail.

Nedelsky’s relational autonomy In contrast to Friedman’s criticism of autonomy that is envisaged as an “impossible independence”, Nedelsky’s (1991; 2011) position on autonomy goes further in criticising any conception of autonomy that treats it as independence from others. For her, as mentioned above, the metaphor of a boundary around the individual – while it sometimes seems appropriate – closes down an analysis of power. By changing the focus to investigate social relations, rather than the need to preserve a boundary, her analysis is nuanced and shows that the individual’s relations with others are not always ones of opposition. She argues that autonomy can be diminished or fostered by the relationships we have as adults, not only friends and family but also in the workplace and in relation to institutions.

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Nedelsky argues that the metaphor of a self that is protected by rights is traditionally based upon physical boundaries that are drawn between the self and others. Her examples are based upon an earlier analysis of the US constitution and the way in which it was envisaged as protecting property, paradigmatically the home, against intrusion from the state. An example of this image of privacy and autonomy was discussed in the last chapter, in which I described the way in which the common law envisaged privacy in the cases of wife beating. Without citing Battersby’s analysis of Kant, Nedelsky comes very close to some of Battersby’s arguments by envisaging a metaphor of boundaries between the self and others as fluid and shifting rather than rigid. Nedelsky describes her aims in the following terms: I consider the emergence of new mythic structures, new visions and metaphors that may provide alternative frameworks for law, rights and conceptions of self. (Nedelsky 2011, 93) As Nedelsky notes, the traditional autonomous individual is an image of someone who is in a position to control others. There is empirical support from a US study for her point. As discussed in Islands of Privacy (NippertEng 2010), US participants in a qualitative study of privacy stressed the relationship between power and privacy, which they viewed in terms of trying to control access to themselves both in the workplace and at home. Employing a metaphor that Nedelsky thinks is inadequate, these participants describe their experiences in terms of trying to police boundaries against incursions of work into their home life. Those with a higher status had adjunct workers, such as personal assistants – a gendered role involving women’s “social graces” – as gate keepers. Nedelsky considers the law, in relation to both the household, employment and the state, in support of her view that the metaphor of boundedness obstructs analysis of power relations. For example, she argues that the state can structure welfare administration in ways that may or may not increase the autonomy of the recipient. She points out that there are hierarchical differences that have an effect upon the structure of relations, facilitating greater autonomy between the state and a university professor compared with a welfare recipient, both of whom receive state money. However, it is easy to see how such a worthy goal of engendering “autonomy” could end up making the welfare recipient feel individually responsible for problems which arise as a result of an economic situation, mentioned above. If the individual is faced with a problem, such as unemployment, which requires a collective solution rather than one provided by the individual, then to argue that the state structure must facilitate the autonomy of the welfare claimant seems misplaced. As I will discuss below, this way of viewing autonomy can easily fit into a neo-liberal aim to

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encourage the welfare recipient to view his/herself as a “job seeker” and owner of human capital, albeit that this is not Nedelsky’s position. Nedelsky (2011) makes a compelling argument that the traditional idea of keeping the state out of the home did not mean that the state was not actually regulating the home in practice. As was shown in the last chapter, the state was still regulating the relationship between husband and wife when it blocked wives from using law to prevent wife beating. As Nedelsky rightly points out, any relatively recent willingness of the state to intervene in wife beating is better characterised as a change in the exercise of state power than of the commencement of regulation. For me, the most evocative aspect of Nedelsky’s work, which has attracted much feminist attention since her initial paper, is her attack upon the image of the “bounded” self. As I argue (in Richardson 2007) Nedelsky’s position has much in common with Battersby’s reworking of the Kantian sublime, discussed above. Nedelsky invites her readers to consider how the use of a boundary metaphor to describe the body, property, rights in general and privacy operates in a way that obscures greater analysis of the relationships that are being described. The metaphor of the self as always defined by a boundary invites a view of social relations that is oppositional and stresses isolation. In the context of privacy, Nedelsky (2011, 208) argues that the employment of boundary metaphors should be replaced by the question: how do social relations foster or undermine privacy? This can be illustrated by a particular example given by Nedelsky. She considers how the decision was made as to whether or not to search student bags. She argues that crucial analysis is foreclosed by the employment of a boundary metaphor. The metaphor fails to grasp the opposing values at stake, which include issues of self-expression, self development, security, as well as autonomy. Similarly, I would add, when intimate information has been made public, the notion of ‘boundary’ does not help us accurately grasp the disruption of relationships that is involved. The European Court of Human Rights has illustrated such a nuanced approach in Peck v UK (2003),1 in which they were concerned that sudden publicity of Peck’s attempted suicide would disrupt his relationships with others rather than violate a metaphorical boundary.

Gordon Hull: privacy and neo-liberalism What if the idea that the “impossible image” of the “autonomous subject”, that has been critiqued by Nedelsky and Friedman, itself functions in ways that undermine achievable autonomy? I will explore and explain what I mean by achievable autonomy in the final section and continue the

1

Peck v UK ECHR 44, [2003].

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critique in this section. Hull (2014) applies Foucault’s (2008) lectures in The Birth of Biopolitics (in which Foucault discusses German and US neoliberalism). Hull describes the “successful failure” of contracts to give away privacy online as reinforcing the image of selfhood favoured by neoliberalism. This turns out to depend upon the “impossible image” of autonomy that has been the subject of feminist critique, discussed above. It is a useful article and worth describing in detail, in part because Hull refers to a familiar operation in relation to privacy that most of us will have experienced. This allows us to understand Foucault’s idea of power in terms of “a set of actions upon actions” that operate on people who are free to behave otherwise. This Foucauldian analysis lies within the space that Nedelsky delineates by referring to the idea of our being “constituted but not determined by others”: [Power] is a total structure of actions brought to bear upon possible actions; it incites, it induces, it seduces, it makes easier or more difficult; in the extreme it constrains or forbids absolutely; it is nevertheless always a way of acting upon an acting subject or acting subjects by virtue of their acting or being capable of action. A set of actions upon other actions. (Foucault 1982, 789) In order to introduce his Foucauldian analysis, Hull starts by remarking upon the familiar “paradox of privacy”. Privacy is commonly described as “paradoxical” because people state that they value their privacy and yet enter into agreements online, which offer “immediate but minor benefits”, in exchange for compromising their privacy. In response, Hull offers a different paradox: First, how is it that the socially standard regimes of privacy protection featured in “notice and consent” policies and other examples of “privacy self-management” so completely fail to represent how individuals actually conceptualize and attempt to manage their privacy? Second, given the totality of their failure, why are they so persistently taken to present a normatively adequate understanding of privacy? (Hull 2014, 1) Drawing upon Foucault, Hull argues that the use of notice and consent is a “successful failure”.2 It clearly fails to protect privacy, a point that has been noted in the press. It is now a cliché that it would take over two weeks out

2

The reworking of the question is reminiscent of the way that Foucault (1977) replaces the question: how do we make prisons work? with the question: how did we come to see prisons as the only solution to crime? The answer also involves a “successful failure”.

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of every year in order to read online privacy agreements.3 One contract included a clause giving the company the soul of the person’s first born (as an April Fool’s joke) and hardly anyone noticed.4 The ubiquity of these contracts places responsibility for privacy management upon the individual, reinforcing the idea that we are to treat ourselves as if we were an enterprise that should undertake risk management. As Hull shows – in a manner that also demonstrates the “impossible autonomy” discussed above – the risks associated with loss of privacy simply cannot be calculated by the individual. This is not only because we do not know who will receive our data and what they will do with it but also because nobody can predict the results of big data analysis. The correlations that are produced may not be understood even when discovered. Hull gives the example that the purchase of felt mats to stop furniture from scuffing the floor was correlated with the buyer being a good credit risk (Duhigg 2009). For me, this raises the bizarre prospect of an arms race in which people purchase these felt mats to increase their credit rating – which then has the effect of undermining the prediction, especially if the makers of felt mats, sensing a new source of revenue, advertise their mats as having this effect. Despite the fact that online contracts fail in their role as voluntary agreements, Hull argues that such online contracts do have a function: [It fails to protect privacy] in a way that encourages adherence to several core neoliberal techniques of power: the belief that privacy can only be treated in terms of individual economic choices to disclose information; the occlusion of the fact that these choices are demonstrably impossible to make in the manner imagined; and the occlusion of the ways that privacy has social value outside whatever benefits or losses may accrue to individuals. (Hull 2014, 2) This argument amounts to much more than the claim that the major five firms: Google, Facebook, Apple, Microsoft and Amazon grew up without proper regulation and hence expect to be able to own and profit from an individual’s data in a way that conflicts with that individual’s expectations. It draws upon Foucault’s analysis of neo-liberalism, in which he details the extent to which neo-liberalism goes beyond an economic analysis and promotion of the free market. He examines the implications of the Chicago School (for example, Becker and Posner) and the extension of

3 4

www.theatlantic.com/technology/archive/2012/03/reading-the-privacy-policies-youencounter-in-a-year-would-take-76-work-days/253851/ www.washingtonpost.com/news/speaking-of-science/wp/2014/09/29/londoners-accidentally-pay-for-free-wi-fi-with-a-firstborn-because-no-one-reads-anymore/

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economics to areas of life that were previously not viewed in economic terms. The human being becomes defined as an entrepreneur of him or herself. This involves viewing yourself as if you were a business with certain assets (“human capital”) that produce an income (wages) and in which you invest through education. Foucault initially considers this in terms of parents’ investment and then considers the other areas in which all human activities – such as crime, marriage, education of children – are viewed through the lens of the market. So, for example, time spent with children is viewed as an investment in their personal capital by helping their development which will pay off in terms of their later income. This extension of economic analysis is justified by a broadened definition of economics as “an optimal allocation of scarce resources to alternative ends” (Foucault 2008, 387) and the strategies employed to do so are associated with all rational conduct (2008, 388). (I will later contrast this with Spinoza’s view of rationality and self-interest and discuss the neo-liberal approach to privacy in Chapter 5.) As Foucault points out (2008, 269), at its extreme, Becker (1962) applies economics to any response to environmental variables, including irrational responses, as long as they are systematic; thereby opening up the possibility of integrating economics with behavioural techniques. Foucault (2008, 389) describes the way in which Becker’s framework dovetails with the behaviourism of BF Skinner. Pentland, discussed in Chapter 1 could be viewed as the inheritor of this tradition, in that he is concerned with how to nudge employees into being more effective based upon big data analysis of the minutiae of everyday activities, particularly information flow. Foucault also explains neo-liberalism as a type of governmental rationality (“governmentality”), along with the history of this development and its relationship to sovereignty and the law. In eighteenth century liberalism, homo economicus was someone who should be left alone to engage in market activities. In contrast, according to Foucault, for Becker, homo economicus is the person who: [R]esponds systematically to modifications in the variables of the environment, appears precisely as someone manageable who responds systematically to systematic modifications artificially introduced into the environment. From being the intangible partner of laissez-faire, homo oeconomicus now becomes the correlate of a governmentality which will act on the environment and systematically modify variables. (Foucault, 2008, 391) This modification includes tiny petty nudges in particular directions and can be exemplified by Pentland’s later work. Hull employs Foucault’s analysis of neo-liberal framework to answer his question: why are online notice and consent forms viewed as reflecting a

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normatively adequate understanding of privacy? His answer is that these notice and consent policies function as a behavioural technique. The use of such polices repeatedly reinforces the idea that the individual is to view him or herself in neo-liberal terms, as an enterprise and hence as an owner of his/her privacy as a commodity that can be easily exchanged. This idea competes with all the other ways in which privacy can be conceptualised. The extent to which such ideas will have traction depends upon other aspects of the society and the extent to which such neo-liberal views are common place. (I will discuss a related question: the way that introducing money into a social relationship tends to alter that relationship, potentially undermining more charitable motives, in Chapter 5.) In terms of autonomy discussed above, this behavioural technique positions the individual as having “impossible autonomy” and this may have the effect of making the individual feel responsible for actions in an environment that has already been shaped by others. Again, its remedy often requires collective rather than individual action. Many suggestions to safeguard privacy maintain this view of the individual as owner of privacy but argue that they should have more rights to their data. So, for example, Pentland argues that there should be a store of an individual’s private data that they can consent to give to others for a better exchange. His analysis includes some potentially useful pragmatic aspects, such as the use of an algorithm to give answers to questions rather than passing over raw data. There already exist companies that give individuals a minor payment when their data is used (Ehrenberg 2014). Again, Hull’s analysis applies, particularly to the latter example, because such an approach continues to commodify privacy and, as such, reinforces the idea that there are no other ways of thinking about what it is to be human than to treat yourself as if you are an enterprise. (Pentland’s proposed algorithm may be more nuanced, irrespective of the behaviourist aspects of his “social physics”.) Hull points to the example of someone who anxiously monitors his/her Facebook page to ensure that disclosures only reach the right audience. This is an enactment of a wide range of techniques by which individuals are encouraged to be on display and to view themselves as responsible for the entailed risks (Hull 2014, 20). There are other examples of privacy that view it as a commodity to be managed by the individual that are less pervasive but perhaps more shocking in the way in which the individual is positioned as an autonomous risk taker. For example, there is online advice that women should treat the risk of being subject to revenge porn as one of the risks associated with sexual activity, akin to unwanted pregnancy and STDs, and offering to help deal with the aftermath for a fee. As Hull recognises, there is well-documented resistance to the ways in which social media sites are set up. This illustrates a privacy concern regarding social media. It is no solution to ask adolescents to give this up if it is

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central to their social life. For example, teenagers remove tags after an evening out and have different sites one for employers and parents and another for friends (Hull 2014, 21–22; citing Marwick and Boyd 2014). Importantly, Hull points to the way in which even resistance is mischaracterised as merely “consumer preference” within a market framework. This translation of resistance into a market model again functions so as to compete with other ways of viewing our privacy and autonomy: [T]reating economic rationality as the truth of subjectivity makes it possible to propose that no matter what someone does, it can and should be understood as presenting her revealed preferences. Even more importantly, it assumes that those preferences have been formed autonomously, outside of the context in which they appear. (Hull 2014, 22) I will now move from this critique of the way that “impossible autonomy” is employed in relation to privacy. I turn to an additional view of relational autonomy, which positions the subject as situated within the society and wider environment, rather than as atomistic, competing individuals. From this perspective, Hull and Foucault’s insights have the potential to increase our powers of acting rather than diminishing us.

Spinoza: different boundaries I will now very briefly suggest how Spinoza provides a different concept of relational autonomy. I will explain his framework in much more detail in Chapter 7 because it prioritises human communication and is relevant to privacy, for this point see Richardson 2014. For Spinoza, we are more free when we increase our understanding of our encounters with the world. This allows us to be active rather than passive in the way that we interact with it. This activity can be viewed in terms of increasing our autonomy (for this argument see Kisner 2011; 2012). Our ability to understand ourselves and the world is ontological and not merely epistemological in its effects. In other words, an increase in our adequate knowledge changes “who we are”. Spinoza describes such freedom (and, I would add with Kisner, autonomy) as power and also as virtue. This autonomy and freedom is not absolute as we can never fully understand all our encounters, as finite creatures, but we can increase our autonomy as a result of increasing this understanding. Spinoza does not view us as having “impossible autonomy” because we are never isolated from influences “outside” ourselves, as in Kant’s conception of personhood discussed above. We are part of nature and not cut off from it. Spinoza produces a framework in which it is possible to think about the boundaries between bodies differently. He views us as made up of other things (such as bacteria in the gut, or the mitochondria in our cells) but

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also that we make up other bodies themselves. So, there is no clear separation, or difference in kind, between human beings and the rest of nature. Bodily boundaries exist – this is not an image of one individual or entity just flowing into another – but what is classed as a “singular entity” can alter at different times. This is dependent upon the effect that this “singular entity” is having in the world. Spinoza therefore produces a framework in which it is possible to think of a human individual both as an individual (albeit one that has emerged as comprised of other bodies, such as bacteria, and ideas from other minds) and as forming a singular entity along with different bodies and minds, at any given point. As Spinoza puts it: By singular things I understand things that are finite and have a determinate existence. And if a number of individuals so concur in one action that together they are all the cause of one effect, I consider them all, to that extent, one singular thing. (Ethics II.D7) We can be involved as part of a singular thing either actively or passively. If passively, it may be either joyful or sad depending upon whether our powers of acting are increased or decreased by the encounter. This marks the difference between a slave, who obeys for the master’s benefit and the child who is asked to obey for his or her own benefit (Spinoza 2007, [195] Chapter 16 §10, 201). As I will discuss further in Chapter 7, it is not possible for us to give up our powers of judgement to others. Sad passions such as fear can make us superstitious and undermine our ability to understand an encounter adequately but this does not mean that we are rendered incapable of doing so. Returning to Hull’s discussion above, to the extent that a consent form makes us believe that we are “autonomous subjects” it is a sad encounter. It diminishes our powers of understanding by giving us the fantasy that we are in control of our privacy or that we have no choice as to whether or not it is lost. A better analysis – as provided by Hull – is to consider the way in which this image of the subject is being created. This does not mean that there is one overarching “ideology” that reproduces a conspiracy nor that we are crudely “determined”. We are “constituted” by such encounters, which we are capable challenging, not by an act of individual will but by understanding how this encounter occurred within the history of a culture. Such an understanding, which we tend to achieve through our interactions with others, increases our autonomy by making us active rather than passive.

Answering Cohen’s questions I will conclude by answering some questions posed by Julie Cohen, whose privacy theory was introduced in the first chapter. Cohen (2012, 109)

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points to three areas that have been neglected by privacy scholars that are relevant to this chapter: first, she argues, they cannot decide whether, ‘autonomy’ denotes an absolute condition or a matter of degree and comments that neither understanding “makes sense in its own terms”; second, privacy theorists do not confront arguments against privacy; third, they offer a poor account of metaphors employed to describe the harms of privacy. I will answer these questions in turn drawing from ideas developed in this chapter. I have focused upon the question of autonomy, illustrating the way that an ability to follow your own (but universal) laws is central to Kant’s image of personhood. The argument that Kant merely describes an “impossible autonomy” does not at all undermine his transcendental claim. I compare the image of Kant’s person with its opposites of his time: the vagabond and the woman. While white propertied men appear closer to this image, this occurs by occluding the work of those who support him. Battersby illustrates how Kant’s metaphysics can be reworked in ways that conceptualise a self as emerging with and through its relations with others (rather than a concept of self that is defined by a cut from the outside). In her analysis of autonomy, Nedelsky produces a view of selfhood that, in its attack on the picture of a self as being bounded from its outside, shares much with Battersby’s position – albeit that Nedelsky is concerned primarily with law rather than philosophy. I draw from Hull to take Nedelsky’s point on privacy further. Nedelsky rightly argues that views of “impossible autonomy”, along with that of the individual as bounded against others (that feeds into our analysis of privacy) detract from analyses of power relationships. Hull shows how this “impossible autonomy” can be viewed, in certain circumstances, as itself a technique of power. We are now encouraged to view ourselves as an enterprise within a market, who must calculate his/her own interests and assess risk accordingly. As Hull illustrates, this example of a behavioural technique has the effect of making individuals feel responsible for signing online privacy agreements, in which they have little choice if the product is valuable to them. He highlights the way in which this “choice” is limited to market terms as “a consumer preference” rather than a political struggle. In posing her question, Cohen states that autonomy cannot be viewed as complete (in that we do need others) but that to talk about degrees of autonomy seems incoherent. She may have in mind a Kantian self, whose will is viewed as the entire explanation for his actions, that is then simply modified to think of this self as somehow also open to some other influences to various degrees. This modification is to claim that sometimes (when, as Friedman asks?) this self is influenced by others. A more coherent conception of self is more radical, such as Battersby’s reworking of Kant, and that of Spinoza – both of whom view selfhood as emerging as a result of our relations with others, and recognise the role of power within

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this process. They both produce coherent frameworks in which to think autonomy that is not absolute. Neither view autonomy as consisting of having boundaries against the “outside” or being cut off from others or otherness. This is also relevant to Cohen’s second point: the complaint that “privacy scholars” do not consider arguments against privacy. I will address the question of how to compare the benefits of free speech against privacy by applying my analysis of Spinoza to this problem in Chapter 7. This is based upon whether or not communication increases sad passions, such as hate speech, compared with the need for free speech, which has the potential to increase our powers of understanding and acting. I argue that Spinoza offers a framework in which the individual will not be sacrificed to the whole. Turning to Cohen’s third question, Cohen only footnotes Nedelsky in her criticism of scholarship that dismisses our phenomenological experience of privacy in terms of boundaries. Nedelsky mainly employs the metaphor in relation to selfhood. Although she extends it to privacy, this is not central to her position. What is important from Nedelsky’s work is that she rejects a view of us as bounded individuals and illustrates ways in which the metaphor has worked to prevent us thinking in more nuanced analyses of power relations. These are both concerns with which Cohen sympathises. For me, the use of a metaphor may have different unforeseeable effects depending on context. In comparison, Nedelsky’s view of selfhood aims to move away from the idea of a self that is not influenced by others. This again is a position that Cohen advocates when she is critical of US privacy scholars who are “deeply resistant, even hostile, to the idea of a socially constructed self” (Cohen 2013, 114) and wants to conceptualise a self that is “shaped by society” but not “dominated” by it (Cohen 2013, 115); an opposition that bears a striking resemblance to Nedelsky’s “constituted but not determined” approach. Both would find Battersby’s analysis fits with their aims, while providing a better image and framework for the conceptions of self that they are interested in. While I also find Battersby’s conceptual framework compelling, I turn to Spinoza to fill in some of the details of how to think of selves and others, emerging though their relations, because of his emphasis on communication. This does not fall into the trap of viewing assemblages in terms of flow but of analysing political power. Balibar (1997) describes this as a “transindividual” in that it is possible to “draw temporary boundaries” around both the individual and also around different bodies (or minds) of which it is a part at different times. As discussed, whether this is the case depends upon whether bodies (or minds) are producing an effect on the world, at that point in time. Hence, Spinoza provides an important alternative to the fixed “bounded” individual. Power is central to Spinoza’s position because he is clear about the distinction between bodies (human and non-human)

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that are passively co-opted and those that actively increase their powers of acting. Israel (2001) has positioned Spinoza as the key hidden figure in the Radical Enlightenment. It is interesting, therefore, to consider his thought as an alternative to Locke’s understanding of privacy and selfhood. Israel does compare Spinoza with Locke, whom he views as more moderate. In contrast, Wim Klever (2012a; 2012b) has provided historical evidence and textual support for the argument that Locke was influenced by Spinoza, particularly in the Essay Concerning Human Understanding. However, an application of Spinozist thought to privacy opens up an alternative path to Locke’s. In the next chapter, I will consider Locke’s influence on the way that privacy is conceptualised, followed by the development neo-liberal views of privacy in Chapter 5.

Bibliography Anderson-Gold, Sharon. 2010. “Privacy, Respect and the Virtues of Reticence in Kant.” Kantian Review 15 (02): 28–42. doi:10.1017/S1369415400002429. Arendt, Hannah. 1989. Lectures on Kant’s Political Philosophy. Edited by Ronald Beiner. Chicago, IL: University of Chicago Press. Balibar, Étienne. 1997. Spinoza: From Individuality to Transindividuality. Delft: Eburon. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Battersby, Christine. 2007. The Sublime, Terror and Human Difference. London: Routledge. Becker, Gary Stanley. 1962. “Irrational Behavior and Economic Theory.” Journal of Political Economy 70 (1): 1–13. Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity. Princeton: Princeton University Press. Castel, Robert. 2003. From Manual Workers to Wage Laborers: Transformation of the Social Question. Edited and translated by Richard Boyd. New Brunswick, NJ/London: Transaction Publishers. Cohen, Julie E. 2012. Configuring the Networked Self: Law, Code, and the Play of Everyday Practice. New Haven, CT/London: Yale University Press. Cohen, Julie E. 2013. “What Privacy Is For.” Harvard Law Review 126 (7): 1904–33. Duhigg, Charles. 2009. “What Does Your Credit-Card Company Know About You?” The New York Times, 17 May, sec. Magazine. www.nytimes.com/2009/05/17/ magazine/17credit-t.html. Ehrenberg, Billy. 2014. “How Much Is Your Personal Data Worth?” The Guardian, 22 April. www.theguardian.com/news/datablog/2014/apr/22/how-much-ispersonal-data-worth. Foucault, Michel. 1977. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. London: Allen Lane. Foucault, Michel. 1982. “The Subject and Power.” Critical Inquiry 8 (4): 777–95. doi: www.jstor.org/pss/1343197.

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Foucault, Michel. 2008. The Birth of Biopolitics: Lectures at the College de France, 1978–1979. Edited by Michel Senellart. Translated by Graham Burchell. Basingstoke: Palgrave Macmillan. Fraser, Nancy. 1996. Justice Interruptus: Rethinking Key Concepts of a Post-Socialist Age. London: Routledge. Friedman, Marilyn. 2013. “Relational Autonomy and Individuality.” University of Toronto Law Journal 63 (2): 327–41. doi:10.3138/utlj.63.2.070812RA. Friedman, Marilyn. 2014. “Relational Autonomy and Independence.” In Autonomy, Oppression, and Gender, edited by Mark Piper and Andrea Veltman, 42–60. Oxford: Oxford University Press. Gavison, Ruth. 1980. “Privacy and the Limits of Law.” The Yale Law Journal 89 (3): 421–71. doi:10.2307/795891. Gilliom, John. 2001. Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. Chicago, IL: University of Chicago Press. Gourevitch, Alex. 2011. “Labor and Republican Liberty.” Constellations 18 (3): 431–54. doi:10.1111/j.1467-8675.2011.00644.x/full. Gourevitch, Alex. 2013. “Labor Republicanism and the Transformation of Work.” Political Theory 41 (4): 591–617. doi:10.1177/0090591713485370. Gourevitch, Alex. 2015. From Slavery to the Cooperative Commonwealth Labor and Republican Liberty in the Nineteenth Century. Cambridge: Cambridge University Press. Hull, Gordon. 2014. Successful Failure: What Foucault Can Teach Us About Privacy SelfManagement in a World of Facebook and Big Data. SSRN Scholarly Paper ID 2533057. Rochester, NY: Social Science Research Network. 10.2139/ ssrn.2533057. http://papers.ssrn.com/abstract=2533057. Israel, Jonathan Irvine. 2001. Radical Enlightenment: Philosophy and the Making of Modernity, 1650–1750. Oxford/New York: Oxford University Press. Kant, Immanuel. 1987. Critique of Judgement. Translated by Werner S. Pluhar. Indianapolis: Hackett Publishing Co, Inc. Kant, Immanuel. 1991. “An Answer to the Question: ‘What Is Enlightenment?’” In Kant: Political Writings, 2nd edn., 54–60. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press. Kant, Immanuel. 1996. The Metaphysics of Morals. Edited by Roger J. Sullivan. Translated by Mary J. Gregor. 2nd Revised edn. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Kant, Immanuel. 1997. Kant: Critique of Practical Reason. Translated by Mary J. Gregor. Cambridge Texts in the History of Philosophy. Cambridge: Cambridge University Press. Kant, Immanuel. 1998. Critique of Pure Reason. Edited and translated by Paul Guyer and Allen W. Wood. Cambridge/New York: Cambridge University Press. Kant, Immanuel. 2006. Anthropology from a Pragmatic Point of View. Edited and translated by Robert Louden. Cambridge: Cambridge University Press. Kant, Immanuel. 2009. Religion Within the Bounds of Bare Reason. Translated by Werner S. Pluhar. Indianapolis: Hackett Publishing. Kant, Immanuel. 2012. Groundwork of the Metaphysics of Morals. Edited by Jens. Timmermann. Translated by Mary J. Gregor. 2nd edn. Cambridge: Cambridge University Press. Kisner, Matthew J. 2011. Spinoza on Human Freedom: Reason, Autonomy and the Good Life. Cambridge: Cambridge University Press.

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Kisner, Matthew J. 2012. “Spinoza’s Liberalism.” Philosophy Compass 7 (11): 782–93. doi:10.1111/j.1747-9991.2012.00521.x. Klever, Wim. 2012a. “Locke’s Disguised Spinozism: Part 1.” Conatus: Filosofía de Spinoza 6 (11): 61–82. Klever, Wim. 2012b. “Locke’s Disguised Spinozism: Part 2.” Conatus: Filosofía de Spinoza 6 (12): 53–74. Lakoff, George, and Mark Johnson. 1980. Metaphors We Live by. Chicago, IL: University of Chicago Press. Lukes, Steven. 2005. Power, Second Edition: A Radical View. London: Palgrave Macmillan. Marwick, Alice E., and Danah Boyd. 2014. “Networked Privacy: How Teenagers Negotiate Context in Social Media.” New Media & Society 16 (7): 1051–67. doi:10.1177/1461444814543995. Marx, Karl. 1976. Capital: Volume 1: A Critique of Political Economy. Translated by Ben Fowkes. London: Penguin Classics. Marx, Karl. 1996. “The Eighteenth Brumaire of Louis Bonaparte.” In Marx: Later Political Writings, edited and translated by Terrell Carver, 31–127. Cambridge/New York: Cambridge University Press. Milgram, Stanley. 2010. Obedience to Authority: An Experimental View. New edition. London: Pinter & Martin. Mill, Harriet Hardy Taylor. 1998. “Violence and Domestic Violence.” In The Complete Works of Harriet Taylor Mill, edited by Jo Ellen Jacobs, 75–134. Indianapolis: Indiana University Press. Mill, John Stuart. 1977. “On Liberty.” In Essays on Politics and Society, edited by John M. Robson and Alexander. Brady. Vol. 18. Collected Works of John Stuart Mill. Toronto: University of Toronto Press. Mill, John Stuart. 1984. “The Subjection of Women.” In Essays on Equality, Law, and Education, edited by John M. Robson, 261–340. Collected Works 21. Toronto: University of Toronto Press. Nedelsky, Jennifer. 1991. “Law, Boundaries and the Bounded Self.” In Law and the Order of Culture, edited by Robert Post, 162–89. Berkeley: University of California Press. Nedelsky, Jennifer. 2011. Law’s Relations a Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. Newburn, Tim, and Stephanie Hayman. 2002. Policing, Surveillance and Social Control: CCTV and Police Monitoring of Suspects. Devon: Willan. Nippert-Eng, Christena E. 2010. Islands of Privacy. Chicago, IL: University of Chicago Press. Pentland, Alex. 2014. Social Physics: How Good Ideas Spread – the Lessons from a New Science. Melbourne/London: Scribe. Pettit, Philip. 1996. “Freedom as Antipower.” Ethics 106 (3): 576–604. doi: www.jstor.org/stable/2382272. Pettit, Philip. 2000. Republicanism: A Theory of Freedom and Government. Oxford University Press. Piper, Mark, and Andrea Veltman, eds 2014. Autonomy, Oppression, and Gender. New York: Oxford University Press. Richardson, Janice. 2004. Selves, Persons, Individuals: Philosophical Perspectives on Women and Legal Obligations. Aldershot: Ashgate Publishing.

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Richardson, Janice. 2007. “The Law and the Sublime: Rethinking the Self and Its Boundaries.” Law and Critique 18 (2): 229–52. doi:10.1007/s10978-007-9010-x. Richardson, Janice. 2011a. “Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby.” Angelaki 16 (2): 143–57. doi:10.1080/ 0969725X.2011.591593. Richardson, Janice. 2011b. “Christine Battersby and the Law.” Women: A Cultural Review 22 (2–3): 192–203. doi:10.1080/09574042.2011.561118. Richardson, Janice. 2014. “Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy.” Feminist Legal Studies 22 (3): 225–41. doi:10.1007/s10691-0149271-3. Rosen, Jeffrey. 2001. The Unwanted Gaze: The Destruction of Privacy in America. New York: Vintage Books. Schoeman, Ferdinand David. 1984. “Privacy and Intimate Information.” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 413–18. Cambridge: Cambridge University Press,. Schott, Robin May, ed. 1997. Feminist Interpretations of Immanuel Kant. Pennsylvania, PA: Pennsylvania State University Press. Skinner, Quentin. 2002. “A Third Concept of Liberty.” Proceedings of the British Academy 117 (January): 237–68. Skinner, Quentin. 2006. “Rethinking Political Liberty.” History Workshop Journal 61 (1): 156–70. doi:www.jstor.org/stable/25472842. Skinner, Quentin. 2008. Hobbes and Republican Liberty. Cambridge: Cambridge University Press. Spinoza, Benedictus de. 2007. Theological-Political Treatise. Edited by Jonathan Irvine Israel. Translated by Michael Silverthorne and Jonathan Irvine Israel. Cambridge/New York: Cambridge University Press. Waldron, Jeremy. 1991. “Homelessness and the Issue of Freedom.” UCLA L.aw Review 39 (2): 295–324. Wharton, Edith. 1904. “The Other Two.” Collier’s Weekly, February 13.

Chapter 4

Locke

Privacy, property in the person, memory and selfhood

Introduction Locke is important for my discussion of privacy for three reasons. First: his work is necessary to think further about the implications of viewing privacy as a type of property; second: his conception of self highlights the relationship between consciousness and memory. This role of memory in Locke’s conception of self, is relevant to any consideration of the arguments over the removal of online private material and “the right to be forgotten”. Third: the relevance of Locke’s concept of self to our understanding of modern conceptions of privacy goes beyond the role of memory. It is useful to position Locke’s concept of self as transitional in the history of political (and ontological) thought in that he envisages an interior private space of the self that is both self-defining and has a duty to God to appropriate in order to continue to exist. This image of a private inner self has implications for how privacy itself is conceptualised. It is useful to consider this in specific detail rather than simply as an instance of a general “liberal self” in that it differs from the position of both Kant and Mill, discussed in the last chapter. However, Locke is also important in terms of the transition to neo-liberalism, which advocates a market approach of commodification of human abilities and attributes that is to be applied to all areas of life, introduced in the last chapter and to be discussed in the next. In this chapter, I will start by looking at Carole Pateman’s analysis of Locke, which has only been mentioned in earlier chapters. She argues that, with Locke, there is the theorisation of a public/private split in which patriarchal power becomes separated from political power. Locke’s argument in the First Treatise (1988a) is progressive in attacking Filmer’s support for the divine right of Kings but also has the effect of separating the power of husbands as heads of household from that of political power. The Second Treatise also moves away from Hobbes’ individualism, in which women are potentially equal in a state of nature, to position women’s subordination within the family as natural. Pateman therefore links Locke with the

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public/private divide, in which the husband’s power in the domestic home is removed from political analysis, viewed as natural rather than political. This was discussed in Chapter 2, in which I considered how husbands’ power was defended in the courts. In this chapter, I will focus upon Pateman’s attack upon self-ownership (otherwise described as property in the person and possessive individualism). In addition, Pateman (2002) argues that it is through contract that relations of subordination are managed in modernity. I will outline her arguments on Locke and then draw out the privacy implications of her position in the first section. After my analysis of Pateman, I want to consider two approaches to Locke, situated within two different areas of philosophy: continental philosophy (Étienne Balibar) and history of political thought (Janet Coleman). The political and ontological aspects of Locke’s thought are often treated separately, with theorists concentrating on either but not both of The Two Treatises of Government, or An Essay Concerning Human Understanding. However, both Coleman and Balibar draw together the two texts in novel ways that I argue are compatible (despite the fact that they do not engage with each other’s work) and useful for thinking about Locke and privacy. Coleman analyses the way in which Locke is an important figure in the transition between pre-modern and modern conceptions of self. Balibar also draws together Locke’s work to produce a subtle analysis of the concept of self, describing Locke – rather than Descartes – as the philosopher of consciousness (2006, 22). I combine elements of their different analyses of how Locke’s political work on property is intimately related to his conception of self and then use this combination to examine our current conceptions of privacy. I argue that this combination is also compatible with Pateman’s analysis because it is an ontology and rather than Pateman’s examination of a political and legal fiction of property in the person. I finish and lead into the next chapter on neo-liberalism and privacy by briefly revisiting Foucault’s lecture on neo-liberalism in relation to law, introduced in the last chapter. Like Balibar and Coleman, Foucault situates Locke as a transitional figure, whose “subject of individual choice” introduces a new and uneasy relationship with the “subject of right”. As the Lockean analysis within the chapter shows, his “subject of individual choice” is not that of neo-liberalism. However, it allows Foucault to trace the legal aspect of its transition, from a subject that should be left alone (liberal homo economicus) to one who can be governed, introduced briefly in the last chapter and expanded upon here. This marks a transition from laissez faire (on the grounds that the details of the market cannot be known to the sovereign) to a neo-liberal subject who is governable by being incited to treat him or herself as an enterprise. This final analysis returns us to Pateman’s critique of neo-liberalism.

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Pateman: Locke, property in the person and privacy In his Two Treatises of Government, Locke asks the question: when does something that I have taken from nature become mine? His famous answer is that I start to own property when I mix my labour with it: Though the Earth, and all inferior Creatures be common to all Men, yet every man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and directly makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other Men. (Locke 1988b, chap. V, §27, 287–288) This argument is based upon the idea that God would not supply the means of our subsistence on Earth and expect us to leave it and starve, while we try to obtain consent from others to take it. However, as Macpherson (1962) points out, in this scenario, Locke assumes that it is possible for a master to own other people’s labour and hence own the product of their labour. So, property ownership is justified by mixing “my” labour with the land in two different senses: the work of my own hands and the work of another whose labour I already own. Locke states: Thus the grass my Horse has bit; the Turfs my servant has cut; and the Ore I have digg’d in any place where I have a right to them in common with others, becomes my Property, without the assignment or consent of any body. (Locke 1988b, chap. V, §28, 289) As Pateman (2002), following (but also extending) both Macpherson (1962) and Marx (1976, 280), argues, there is a political assumption that the master has already bought the rights to every product of the servant’s labour power for the time when the servant is working for him. It is a political (and legal) fiction. This fiction introduces the idea of “property in the person”, the servant’s labour power as a commodity. As briefly mentioned in Chapter 2, Pateman examines how, in modernity, human relationships become structured by the fiction of that property in the person – the human ability to cut turf in this case – can be exchanged for a wage. While it is possible to donate blood by removing it from the human body, Pateman is interested in types of property in the person – our abilities – which cannot be removed. (This is the “property in the person” to which I

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will be referring unless stated otherwise.) The servant cannot exchange this type of property in the person in a one off transaction, such as signing away privacy rights regarding a particular transaction. Instead, workers take part in a relationship in which they are expected to obey orders. Today, it is implied into the employment contract that employees will obey only reasonable orders – although the de facto power is with the employer to decide what is reasonable. In summary: what started with Locke’s initial claim that the master owned those things with which he had mixed his own labour power (that is, the work he does with his own hands), can be extended to include those products of another’s (the servant’s) labour power, which the master owns, in modernity, through contract. Below, I will discuss Balibar’s analysis of the relationship between “my own” and “my self” in ontological terms but Balibar’s analysis does not undermine the fictional status of property in the person. Recall that this fiction is central to understanding the view of privacy most starkly demonstrated by Charles Fried, discussed in Chapter 1, who states: The entitlements of privacy are not just one kind of entitlement among many that a lover can surrender to show his love. Love or friendship can be partially expressed by the gift of other rights – gifts of property or of service. But these gifts without the intimacy of shared private information, cannot alone constitute love or friendship. (Fried 1984, 211; emphasis added) Property and service are viewed as things that you own and can be alienated, that is, sold or given as a gift. Employees own their own labour power and so are able to sell or give it away for limited periods of time. Pateman adds the position of married women to this analysis, thereby extending it. In the “heyday of the worker/breadwinner […] from 1840–1970” (Pateman 1996, 204) housewives were in a similar position to civil slaves: they were not viewed as owning their own labour power; worked in the private sphere of the home for unlimited lengths of time; and were supported financially within the home, given “protection” in exchange for consortium. The common law acknowledged this position in a number of respects, for example by stating that husbands had a right to damages for “loss of consortium” if someone negligently injured a wife such that she could not perform her wifely duties of housework and sex. In the UK, this case law was not extended to women Best v. Samuel Fox & Co. Ltd. (1952)1 (Richardson 2009; 2010; 2007). Pateman broadens and sharpens Macpherson’s position, in her analysis of Locke’s property in the person, to

1

Best v. Samuel Fox & Co. Ltd. [1952] AC 731–732

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include the historical inter-relation between both employment and traditional marriage, along with the assumption of traditional marriage within the development of the post WWII welfare state. There is an irony to this argument because contract is often viewed as the paradigm of a sign of respect for someone. Contract is contrasted with the violence, coercion and hierarchy of feudal and other pre-modern status based relationships. The idea that contract and status cover all the possible ways of thinking human relationships is the corollary of the idea that you must either own aspects of yourself or someone else will own you (as if you yourself were a commodity). As Ellerman (1992, 17; cited in Pateman 2002, 36) puts it: the debate is, “analogous to a debate over slavery where the alternative proposed by the ‘abolitionists’ was the public ownership of the slaves”. It is also worth pointing out the well known arguments over the extent to which consent is coerced when someone is left with little alternative but to accept the terms of an employment contract, or the marriage contract (see Pateman 1989; Cohen 1995, chap. 1 contra Nozick 1974). An historical illustration is useful. Up to the end of the nineteenth century, the common law prevented workers from suing employers for injuries resulting from unsafe working conditions, on the grounds that they had consented to work there from their own free will. The problems inherent in this attitude are recognised, in part, in the law of duress and undue influence. Importantly, Pateman emphasised the continuing problem of subordination (rather than exploitation) and its implications for democracy. To illustrate the importance of subordination as central to Pateman’s argument it is useful to consider her response to Gerald Cohen. In a thought experiment, Cohen (1995) envisages a situation in which two people, who were initially equal, end up in a position in which one is working for the other. Cohen then questions whether the relationship is exploitative. For Pateman, the important point is that of subordination not exploitation: that the sale of labour power as a commodity produces a relationship in which one party is expected to obey another. Hence, subordination would be a problem even if the relationship were one of a “cleanly generated capitalist relationship” discussed by Cohen. A useful illustration of Pateman’s position is her thought experiment of three different types of society. These differ in the extent to which they accept the fiction of property in the person in law. The first society is the end point of neo-liberalism in which everything is viewed as property in the person – everything is up for sale. Law and Economics needs to stop short of this point in order allow the courts to enforce property rights. As Kenneth Arrow pointed out, the courts and police system would not be able to work within a market (Arrow 1972, 357). The point still stands but since Arrow made it there has been an increase in private policing in the US and UK, often associated with the increasing number of gated communities, which reflect the increase in financial disparity.

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A society, in which the fiction of property in the person had no limits, would also allow the possibility of voluntary slavery, a position that would not have been acceptable to Locke for reasons that run to the heart of his conception of self. Locke’s argument against selling oneself into a slave contract is consistent with the above quotations about labour and ownership. God made us and therefore “owns” us with the result that it is up to him when we die. I will discuss the meaning of “ownership” in this context below. Locke does not mean that God can sell us but that he has dominion over us. Given that entering into a slave contract could be suicidal, Locke argues that this is against God’s will. In contrast, Nozick (1974, chap. 9) is willing to follow the line of thought (that treats human abilities and attributes as commodities that we own) to its logical conclusion to argue that a slave contract would be acceptable. Nozick’s position is based upon the (anti-Hobbesian)2 view that such a contract must not be coerced through violence. As mentioned above, this raises problems concerning the question of consent; what acceptable reason could have made someone desperate enough to enter into such an agreement? Nozick is no doubt aware of this concern but is unwavering in his willingness to take any form of non-violent consent at face value. This type of society brings out the concerns of Titmuss, Radin and Sandel (to be discussed in the next chapter): that important aspects of human life are degraded if everything is viewed as having a price. In response, Case argues that sometimes those in a weaker position emphasise the employment contract to avoid being treated in terms of (a less favourable) status, as in secretaries’ demands for wage “raises, not roses” (Kanter 1977, 86; cited in Case 2005, 1135). This is a good point if these are the only options, but not one that undercuts Pateman’s analysis here, because she is considering the possibility of relationships that are not relationships of subordination, on any grounds. Pateman’s first image of a society in which all aspects of property in the person can be alienated does not exist, although there have been moves in that direction. Her second type of society is one that we have now. It is not (legally) possible to buy votes, although US lobbying companies regularly pay homeless persons to stand in queues for them to gain access to the legislature (Sandel 2012). Western societies do not now endorse slavery3 but it is legal to alienate property in the person in a limited way. The classic example of this is the alienation of labour power, assumed in Locke’s argument quoted above. Unlike a slave and traditional wives under the legal doctrine of coverture, this alienation is limited in time, for a wage, and involves an assumption of equality under the law but subordination in the workplace.

2 3

For Hobbes, contracts made under duress are paradigmatic of consent. For the West’s historical relationship to slavery, see Liberalism:a Counter-History (Losurdo 2011).

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What is radical about Pateman’s position is that she adds a third example: a society in which property in the person could not be alienated. Recall that “property in the person” is a politico-legal fiction. An employee cannot really remove his/her ability to work and exchange it for wages but has to turn up in person to work and expect to be given orders. Without this fiction, Pateman argues, the problem of lack of voice in the workplace would be clearer: why should we expect to have democracy in the polis but not in the workplace? In the absence of this fiction, she argues, there would be alternative ways of thinking about and developing a participative democracy. It would open the way to raising expectations that people should be able to participate in decision-making in everyday life. This entails increasing the opportunity to develop social and other skills that are necessary to do so. Why is this relevant to thinking about privacy? There is an argument that our privacy should be viewed in Lockean terms described above, as a type of property that we own and can alienate through sale or gift (property in the person), as illustrated by Thomson and Fried discussed in Chapter 1. This draws upon the fiction that Pateman analyses above. Note there is a difference between the following two points, which should not be confused: a) that “property”, i.e ownership of an object, my hat, is not a relationship between me and the object (my hat) but concerns a social relationship in that private property rights allow me to stop others from using my hat; and (b) that “property in the person” (such as the labour power of Locke’s servant in Chapter 5 Two Treatises of Government) which is a human ability can be treated as if it were a commodity that could be sold or given by gift. Both entail social relations that are created through laws but only the latter creates an ongoing relationship. By extension, privacy and other human attributes can also be treated as commodities. This may underlie continuous relationships, as in Fried’s arguments discussed in Chapter 1 but this is not necessary the case. It should also be noted that there is also a tendency to reference Locke when viewing privacy as associated with non-interference from the state rather than recognising that lack of legal interference is simply another way of regulating a relationship, a point made by Nedelsky (2011), discussed in the last chapter. An example of this approach is that of Volkman (2010, 190) “Commodification and Privacy: A Lockean Perspective”, in which he claims that a “Lockean approach” is neutral as to whether or not there should be a market in “human bodily material”. He suggests that there should not be state prohibition of such a market because those who do not view their bodies as commodities do not need to use it. This is hardly a neutral position. As I will discuss in the next chapter, there is evidence that the introduction of a market changes the way that its object is perceived. Volkman fails to recognise the way that a society – and hence individuals – are altered as a result of the extension of markets into all areas of life. This is illustrated by the way that Pateman considers the commodification of property in the person that cannot be removed from a human being.

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However, in Volkman’s argument, he is concerned with a market in bodily material that can be removed from the body. This removal means that the exchange does not produce an ongoing relationship but that does not prevent it from being exploitative. As I will discuss below, Coleman (2005) argues that Locke would not have found a market in body parts acceptable, in any event, because of our duty to God. The central importance of Pateman’s analysis of Locke’s discussion of property in the person in the quotation above is the resulting relations of domination between the master and the servant who cuts the turf. Throughout this book I argue that power is central to our understanding and contemporary struggles around privacy – its meaning and our experience of it. To explain this in more detail I will look at the broad use of the term, for a moment, rather than in terms purely of ‘informational privacy’, and then link this broad analysis with informational privacy. The area of employment occupies a middle position in the public/private divide when it is considered in terms of “spheres”. The workplace is sometimes viewed as public compared to the intimacy of the home but also as supposedly a ‘non-political’ space of ‘private interests’ in relation to business. To characterise the workplace and its relations of subordination in terms of private interests defined against the state (and in terms of interests of shareholders) has been enacted in ways that have worked against the weaker party to the contract. Employees tend to lose security and suffer a downgrading in employment conditions when companies become private rather than public, a concern that EU attempted to address.4 In addition, such privatisation has left consumers with fewer rights against private companies than against the state when utilities have been privatised (Graham and Prosser 1991). Turning to informational privacy, the lack of workplace democracy (that is “justified” by being framed as a private and hence apolitical enterprise) also situates these conflicts of interest between employers and employees. The actions of employees at work are literally employers’ business but there is a continuing struggle over the extent to which it is necessary to employ a vast array of technology to surveil employees – or to employ data companies to discover the minutiae of their private lives before hiring. It is now possible to produce an electronic Panopticon, such that workers are aware of the constant monitoring, employers hoping that employees will police themselves accordingly. Some aspects of Pentland’s (2014) analysis of ways that employers can alter behaviour, discussed in Chapter 1, can be viewed as a direct descendent of Taylor’s “scientific management” (Taylor 2003; and see also Johnston 2013 discussing Rosenthal forthcoming for the problematic genealogy of scientific management).

4

Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

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So, an appeal to the “private” interests of employers works to disadvantage the weaker party (the employee) whose position, Pateman argues, is created by the exchange of property in the person. In Chapter 2, I detailed the way in which the public/private split – and later emphasis upon privacy of the domestic sphere – was used by judges to maintain a husband’s privilege to beat his wife. In this context, the term “privacy” is associated with domestic sphere or private business, rather than purely informational privacy, to the detriment of those who exchange their property in the person to enter into a subordinate relationship. While there is not yet equality, the position of women in the West has altered from the heyday of the housewife – which Pateman views as ending around 1970. However, wife beating is an area that remains a problem (World Health Organization (WHO) 2005; Johnson, Ollus, and Nevala 2008; United Nations Development Fund for Women (UNIFEM) 2010). Pateman connects freedom with the ability to have a voice; to be able to be part of a decision-making process. However, this is no longer an evocation of the great speeches of ancient Greeks but of individuals having a say on mundane everyday matters; whose importance is cumulative. When employees are faced with increasing surveillance on a daily basis, the mundane matters. Pateman makes an important move in shifting her analysis of participatory freedom from the ‘public sphere’ (as epitomized in political thought by Athenian city square) to the problematic “private” spheres of workplace and the home. It is a shift that challenges the public/private divide itself in favour of focusing upon the actual operation of daily power rather than the way in which these “spheres” are labelled. Pateman’s third type of society (in which there are no relationships based upon the fiction of property in the person) is an ideal, discussed above. It allows Pateman to consider ways in which today’s society could move in that direction, for example by increasing workplace participation such as the EU’s Vredeling Directive (Danis and Hoffmann 1995) and the possibility of a minimum income for all (Pateman 2003; 2004), which increases the weaker parties’ ability to negotiate or leave. Her focus upon participative democracy also brings home the political impact of attacks on individuals such as the threats to women online if they make their voices heard, and also the need for greater transparency of companies’ activities, to be discussed in the next chapter. I will now explore Locke’s conception of self in relation to his political work, by considering first Coleman and then Balibar.

Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Coleman Coleman traces Locke’s concept of self as denoting a pivotal point in answering the question: “when did common decency become a private

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rather than public virtue?” and Balibar argues that it is Locke and not Descartes who is “the philosopher of consciousness”. I will outline their arguments and demonstrate their compatibility (with each other and with Pateman’s arguments about the fiction of property in the person). I will then produce an account that draws the two positions together and consider its implications for how we think about privacy. Although Coleman and Balibar do not engage with each other’s work, they both start by considering the English language and the fact that – unlike continental languages – it is possible to speak of oneself as if one is an owner of one’s self. They do not discuss Pateman (although she is cited elsewhere by Balibar 2013, chap. 2, fn 19). Their analyses of self-ownership both differ from that of Pateman’s in that they focus upon Locke’s ontology rather than upon property in the person as a political and legal fiction. Coleman starts with a discussion of language to pinpoint when Locke’s image of self-ownership came into being. She illustrates the extent to which he is a transitional thinker to distinguish pre-modern subjective rights from modern subjective rights and characterises contemporary discourse as entailing: [An] impoverished, definition of what it means to be a person, not least in collapsing “person” into private, self-conscious, self-identity of self-owners. (Coleman 2005, 128) This is a different view of privacy than has previously been discussed: a concern with a “private self” who has privileged access to his or her own interests and not to a “history that matters, at least to or in, the public sphere” (Coleman 2005, 129). To draw out Coleman’s point, there is a difference between considering your memory of your life – your recall of your identity over time – as a private story and of understanding your story as integrated within a social and historical context. To take Coleman’s point further, it may be possible that some individuals attribute everything that happens to them as caused by their own will. Alternatively, an individual may have some understanding of the historical and social context in which decisions arise.5 Coleman (2005, 131) claims that Locke is the first to argue that individuals are “self-owners” but qualifies this claim in terms of the implications that are drawn from such self-ownership. Coleman demonstrates that Locke’s transitional position still bears some aspects of the earlier dominium in that Locke still emphasises obligations and concern for the lives of others. As discussed, some of Locke’s arguments derive from his

5

In Spinozist terms, to be discussed in the final chapter, this corresponds to inadequate and adequate knowledge respectively.

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Christianity and include the concern that we have obligations to God. On the basis of this duty, we also have obligations to others: to help them preserve themselves. In contrast to contemporary neo-liberalism, he does not justify a “devil take the hindmost” attitude. Locke’s conception of our duty to others can be characterised as pre-modern and follows from his assumption that God gave the Earth to humans in common. Coleman distinguishes modern “self-ownership” from pre-modern dominion or sovereignty in oneself in the following way: To have inalienable rights over one’s own powers to preserve and defend oneself is a long-enduring pre-modern understanding of dominium as sovereignty over oneself not ownership of that self. To have a right, consequent on a duty, to preserve mankind in general, after securing one’s own preservation, does not mean one “owns” mankind. (Coleman 2005, 144, fn. 17) I would add that there is a related argument with regard to God, whom Locke describes as having made us and could – by the same logic – be viewed as our “owner”. Again, this “ownership” does not imply that God is envisaged as having the ability to sell us, but that he has dominium over us, envisaged as caring and commanding within a hierarchical relationship. This is the image of marriage that relied upon an analogy between God and the Church to try to justify the unstable idea of a relationship that is characterised as both loving and unequal, discussed in Chapter 2. In assuming obligations to God and to others, as well as oneself, Locke continues a tradition from the Middle Ages that property is to be used rightfully. Locke’s provisos that, when an individual appropriates property, s/he should leave “enough, and as good left in common for others” (Locke 1988c, chap. V, §27, 288) (and that resources should not be wasted) are motivated by this God-given obligation to others. However, Locke then moves beyond these provisos, to argue that the market produces a way of organising labour such that those who can no longer appropriate goods are still better off (Macpherson 1962, 212). As a result, he aimed to justify the UK Enclosure Acts in which feudal rights in relation to the land that fell below that of copyhold were eliminated. For an analysis of these laws which criminalised many livelihoods in the UK see E.P. Thomson (1977). Similarly, Locke could argue that the proviso of not leaving any food to rot, thereby depriving others of it, is no longer relevant once money is invented (Macpherson 1962, 201–204, 208). Coleman argues that Locke’s envisaged duty to God not to commit suicide (that rules out slavery as a risk of suicide) would also give him reason to argue against the morality of selling body parts. Her point could be extended, in that Locke views God as having dominion over our bodies and hence our body parts, which are therefore not ours to alienate, irrespective of the suicide risks. She does not discuss

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the sale of labour power and other aspects of property in the person that cannot be removed from the body, that are the subject of Pateman’s analysis above. In an important move (that I will focus upon in detail and compare with Balibar’s reading of Locke below) Coleman brings together different aspects of Locke’s work. She argues that we have a duty to God to maintain ourselves (see Locke 1988c, chap. V) and our identity over time (Locke 1975, chap. XXVII). She argues that, the way in which Locke conceives of us as maintaining our identity was new. This is a process in which the self is envisaged as self-defining “to itself”. Coleman argues that Locke envisages a self that, through consciousness and memory of what we have thought and done, is able to know that it is a self. She goes further in drawing together different aspects of Locke’s work in her elaboration of the role of appropriation in Locke’s conception of self. Just as Locke’s justification of property involves mixing one’s labour with the land, in order to take food from the state of nature, so his conception of self is that of an internal “private” self that works on concepts that are outside itself, thereby appropriating them into its self. Both acts involve taking what is external to the self and making them its own, whether it is food or ideas, as a result of labour. In this way, Coleman draws together Locke’s Two Treatises of Government with his Essay Concerning Human Understanding. For Coleman, the idea of a self that is alone in this work of “self-definition” fits with Locke’s Protestantism in which there was no intermediary between the individual and God. It moves away from the pre-modern definition of oneself in relation to others or as associated with one’s status. In drawing this association between appropriation of food and of ideas, both of which are necessary to obey God’s will on Earth, Coleman states of Locke: [H]e expressed the view that while everything each of us thinks has its origin outside us, when things are grasped or mentally appropriated or laboured on by each individual, they become, through reflection, our own inalienable and subjective thoughts. (Coleman 2005, 135) This is the crux of Coleman’s analysis of Locke. As characterised, it brings together the political and ontological elements of Locke’s work. The image is one of an inner realm – one that is the most private. This is still a common view of privacy, imagined as a series of concentric circles moving from inner self outwards to then include family, friends, civil society and then larger groupings and the state. The “inner” self is then able to labour upon ideas about the world – just as we are able to pick and eat food – in order to maintain itself as an identity over time, according to God’s will. Coleman continues:

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Ownership in the external and internal domains is achieved through one defined and independent activity for Locke. Independent labour, appropriation, acts on the outside material world and, in thereby coming to control the world by using obligatory subsistence, Locke describes a process by which each individual is responsible for confirming himself to be a person in perpetuity. (Coleman 2005, 135) Coleman, not only links together aspects of Locke’s work that are usually kept distinct but also highlights a specific area of his thought. This is also the area that Balibar focuses upon when he repositions Locke as the philosopher of consciousness, to be discussed in the next section. The quotation above also demonstrates the importance of labour in the appropriation of both the means of subsistence and of selfhood. Coleman argues that Locke is also transitional in emphasising labour as of central importance to human life, a point taken up by Marx and Engels. This can be contrasted with the ancient Greek understanding that we work only as a means to the good life. There have been recent attempts to challenge the prevailing view of labour. These arguments stress that the opposite to labour is not idleness, envisaged as leisure, but self-directed activity more akin to Marx’s image of unalienated labour (Skidelsky and Skidelsky 2012). Skidelsky and Skidelsky refer back to Keynes’ (1963) prediction that, at this point in time, the West would have solved the economic problem and have a shorter working week; that the problem would be to find such fulfilling self-directed activity. Similarly, for Spinoza, our encounters with other ideas and bodies (such as food) are not “appropriated” but change “who we are”, allowing us to thrive.6 Coleman’s link between the Essay and the Two Treatises does not reference Pateman’s analysis of property in the person. However, Coleman’s portrayal of the Lockean self – as a self that appropriates ideas (as well as food) from outside itself and then makes these its own – is compatible with Pateman’s position because Coleman’s position is ontological whereas Pateman’s is an analysis of a politico-legal fiction. Further, the ontological view of the self as a self-defining individual facilitates the use of such a fiction because it conceptualises the individual as isolated, appropriating

6

For the argument that Spinoza strongly influenced Locke see Wim Klever (2012a; 2012b). Coleman’s argument illustrates that they share a similar focus upon both bodily encounters (e.g. with food) and mental encounters (ideas). Spinoza envisages these encounters as potentially changing us whereas in Coleman’s account, Locke’s appropriations perpetuate ourselves. For Locke, they are brought into an inner self, whereas for Spinoza they alter the self, which is always situated as part of a greater whole, allowing it to increase or decrease its powers of acting. However, the difference may be a matter of emphasis with regard to those mundane encounters that do not change us by giving us adequate knowledge. I will explain Spinoza in more detail in Chapter 7.

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from its outside into its inside. It paves the way for a view of the self that decides its own interests. Coleman argues, that over time the decisions made by this Lockean self will come to be viewed as individual judgements that cannot be questioned by anyone – despite the fact that Locke would never have accepted this claim, given that his Christianity could provide a basis for criticism of certain actions. I will now turn to Balibar who analyses Locke’s ontological position by considering the relationship between the terms “my own” and “my self”. Despite his use of these phrases, Balibar is not analysing the politico-legal fiction of self-ownership that is Pateman’s concern but is covering similar ground to that of Coleman.

Locke’s An Essay Concerning Human Understanding and Two Treatises of Government: Balibar Like Coleman, Balibar starts by explaining a linguistic problem. In Balibar’s case, he was concerned with his translation of Locke’s English text into French. He had assumed that, in English, the terms “my own” and “my self” could be used to refer to the same object, that is: me. He therefore conjectured that the English language facilitated Locke’s philosophical position in relation to self-ownership. For Balibar, this turned out to be a beneficial mistake because it allowed him to uncover the subtlety of Locke’s writing in Chapter 27 of the Essay. In particular, it prompted him to consider the circularity that Locke illustrates between the terms: “identity” and “identify” and “property” and “appropriation”. Like Coleman, Balibar stresses the role of appropriation in Locke’s concept of self. Balibar argues that to view: (1) the self and (2) that which is owned, as exactly the same would be to close down the necessary “uneasiness” that is produced when thinking about the idea of owning my self. He argues that in Locke’s work, this separation of (1) and (2) is more than a performative contradiction. A performative contradiction does occur because the statement that “I own my self” appears to separate the self into two: one that owns and the other self that is owned; and yet, in making a statement that “I own myself”, I am also stating that these two are the same. Locke could easily have stated his position that the criterion for personal identity (and therefore responsibility for an individual’s own actions) is his or her consciousness of having thought and acted in a particular manner (Balibar 2006, 32). However, Balibar argues that through Locke’s “complicated, lengthy, rhetorical and poetic argument” Locke allows a different view of this duality between self and self to emerge (Balibar 2006, 31). To explain this point involves looking briefly at the term “interpellation”. While Balibar does not cite Althusser, one famous aspect of Althusser’s work needs to be recalled to trace Balibar’s argument. Althusser (1971) describes “interpellation” by considering a situation in which a policeman calls “hey you” to someone. If that person stops then s/he is the

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subject of interpellation. “Who that person is” – or at least one aspect of this – comes into being as of a result of his or her response to this call. As a result of this response, that individual is positioned as a subject of social and political power. What is relevant here is that a self (or aspect of self) that was not previously in existence comes into being by virtue of the interpellation. This is different from assuming that the self has a stable underlying essence that is responsible for any decisions s/he makes. Turning back to Balibar, he employs the term “interpellation” to describe my ability to say of myself that “I own myself”, in Locke’s thought (Balibar 2006, 32). In doing so, Balibar examines the idea that I refer to myself in language to bring myself into being. Yet, as mentioned above, there is a contradiction that arises because of the duality between the self that is calling itself into being and that self which is supposed to come into being. The act of interpellation (of calling myself into existence) produces a split between the self that labels itself and that which is labelled but also affirms the claim of “ownership” that states that these are the same. As a result, this split in the self is more than a performative contradiction. Balibar detects a nuance in Locke’s text that points to an “uneasiness” in this relation of self to its own self. It is neither one nor two. As discussed, Balibar claims to have initially missed the “uneasiness” that Locke demonstrates in his writing – of the self that labels and that which is labelled, both of which are the same. In addition, this is a process by which the self appropriates itself to itself. This subtlety was lost when Balibar simply viewed “my self” and “my own” as being the same thing. Balibar suggests that one way of thinking about this relation between self and self (that is neither one nor two) is that of the sexual relation, the couple. The couple – like the self that owns itself – are then paradigmatic of a relationship that is very close but in which there is a difference. This takes up some of Irigaray’s (1985) complex arguments about sexual difference (Richardson 2010). There are some interesting possibilities in this evocation of the (heterosexual) couple, by Balibar, but it also raises problems. The problems are exacerbated by Balibar’s reference to an area of philosophy that clearly engages with Irigaray, while not acknowledging that this is the case (see Stanford 2013). There is a risk that Balibar is demonstrating a relationship between self and self that makes the position of women stand in for any ‘difference’ whatsoever in a way that closes down any appreciation of other types of difference. This (too common) practice has the effect of focusing upon the use of the term ‘woman’ in ways that block feminist analyses of actual women. Balibar fails to consider the extent to which the heterosexual couple (evoked as an illustration of the relationship between the self and self) is not equal. (When he refers to a self that owns itself, we all know who is more likely to be positioned as the object that is owned within the heterosexual couple.) Women have been positioned historically, within a network of

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power that claims to fix what it means to be a woman, in such a way that they are defined against men. In this process men are considered he norm. This is an area in which Irigaray has produced different images of selfhood by thinking of a way of conceptualising a self that is not simply defined by what it is not; by its split from its outside. Instead, she thinks of a self that emerges through a relationship between self and other. This position has been developed by Christine Battersby (1998), discussed in the last chapter, in ways that shift from a psychoanalytic approach to one in which such self and other relations emerge over time in the context of networks of power. Aside from this point, Balibar’s analysis of Locke’s self from the Essay has much in common with that of Coleman. Both highlight the way in which Locke’s self emerges through a process employing both consciousness and memory. However, Coleman stresses the fact that this self appropriates ideas external to itself by thinking about them and – through this work – making them its own. Balibar produces a more complex reading of Locke’s text. As a result he also envisages Locke as describing a process in which the self appropriates itself to itself: So that what I can consider as me, myself, is my self and “my” self is some “thing” that I own or that I must own (confess) is mine, was done or thought by me, has become my own because I appropriated it to me by doing it or thinking it consciously. (Balibar 2006, 27) Balibar’s reference to “owning” as associated with confessing refers to the English language usage of “to own” when it is associated with responsibility for an act, as in the rather dated phrase that someone “owns up” (confesses) to having done something wrong. This concern with responsibility is worth explaining as it is directly relevant to Locke’s discussion of selfhood in Chapter 27 of the Essay. This chapter was written after the rest of the Essay in response to the Church’s concerns that Locke’s Essay could be viewed as undermining Christian doctrine. In adding Chapter 27, Locke therefore aimed to demonstrate when individuals would be held responsible for their actions on Judgement Day. His answer involved explaining what would allow the continuation of individual identity over time such that s/he could bear this responsibility. His answer rejected the idea that each individual’s identity was associated with his or her body (or a particular substance) but that identity occurred through the inter-relation between consciousness and memory. You are responsible for those actions which you could recall performing. Hence, importantly for the right to be forgotten in privacy law, memory becomes central to your self identity. This is also a description of the duty to God, to continue to have an identity that exists over time, described by Coleman above. Both involve specifying how to conceptualise the self that continues over time.

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I want to consider the position of power in Locke’s conception of self and flesh out his image of appropriation of self. Balibar comes closer to Coleman’s image of appropriation in Locke by exploring this “uneasiness”, discussed in Locke’s Chapter 21 “Of Power”. Balibar comments that Locke’s position has similarities to Spinoza in this respect: Locke argues that there is no consciousness without desire. This desire – which Locke defines in terms of “uneasiness” is to escape from discomfort (Locke 1975, chap. XXI Of Power, §32, Desire is Uneasiness, 252). As a result, there is no fixed stable consciousness but “a train of ideas”. Balibar borrows the Lockean term “uneasiness” from Chapter 21 of the Essay and employs it to refer to an uneasy duality that exists between the self that appropriates itself and the self that is appropriated, discussed above. However, the content of Locke’s analysis of uneasiness as desire is useful for my purposes because it brings Balibar’s discussion closer to that of Coleman. For me, Balibar’s subtle and complex analysis of self is compatible with that of Coleman because the process through which the self appropriates itself, as discussed by Balibar, also involves a process that involves reflecting upon ideas from outside the self and working upon them in order to appropriate them, as described by Coleman. This could be viewed as a two stage process, starting with Coleman’s analysis of a self that defines itself by virtue of having appropriated ideas from the world and made them its own by thinking about them. This process corresponds to the process by which the body appropriates food, again with the aim of fulfilling its obligation to God to continue over time. Balibar suggests a meta-level appropriation of the self to itself, which can be viewed in similar terms as the self reflecting upon its own memory of these encounters with ideas (and its own actions) in order to interpellate itself into being. This meta-level appropriation involves producing a story or narrative about oneself; working upon oneself just as Coleman describes working upon ideas. For the reason stated at the end of the last section, I would also view Balibar’s arguments (and my combination of Coleman and Balibar’s arguments) as compatible with Pateman’s analysis of “self-ownership” or “property in the person”. The former are ontological, concerning ways that selfhood over time is envisaged, whereas Pateman is discussing something different: a politico-legal fiction.

Privacy, memory and life stories Both Coleman and Balibar produce a reading of Locke as a transitional figure in whose work the self becomes self-defining. The extent to which this is a shift from older versions of thinking of the self, can be illustrated by a comparison with alternative conceptions of self, that also entail the idea of a narrative of a life. A useful example is proposed by classicist and feminist philosopher, Adrianna Cavarero. She envisages selfhood in terms of one’s

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life story (Cavarero 2000; Richardson 2011). This can be compared with Locke who describes a self as that which remembers having thought and acted and as a result produces a narrative of a life, for which that individual is responsible. Contra Locke, Cavarero’s aim is not to consider an individual’s responsibility come Judgement Day. Instead, she argues that – as part of a human need to view ourselves as an integrated whole – we have a need to hear our life story. The important difference from Locke’s self-defining self is that in Cavarero’s view, we do not tell our own life story, as work upon ourselves. She argues that we cannot tell our own life story because individuals cannot describe their birth. Cavarero reworks the ancient Greek idea that (male) heroes could win a type of immortality through the tales told of their great words and deeds acted out in public. In contrast, Cavarero cuts across the public/private divide (in terms of separate spheres) and considers everyone as needing to hear his or her life story told by others in ways that allow him/her to have a sense of his or her self as an integral whole. She argues that this applies to all of us, particularly those who are not viewed as public figures (Cavarero 2000, chap. 5). Cavarero stresses that such life stories are unique. Drawing from Arendt (1958, 181), this does not entail viewing someone in terms of “what” they are, defining them in terms of particular roles or categories, but as “who” they are, which is unique. Cavarero produces a conception of self that does not fit into the limited binary choice between viewing ourselves in terms of either pre-modern status or a modern self-appropriating self. This gives a different dimension to privacy in which to have a life story told by others involves at least one other person knowing intimate details of your life, although different secrets may not be known by the same person. There is now the possibility of recording the whole of a life (Leckart 2009), assuming the birth was videoed. For example, Gordon Bell has a video recorder attached to himself (Bell and Gemmell 2009). This approach may supplement the memory in the way that Locke envisaged because it would allow the self-defining individual to be prompted to recall emotion and details of events. There may be areas of life that s/he may wish to delete. This illustrates a distinction between Locke and Cavarero as to what is entailed in a life story. What is missing in Locke’s account (and in this recording) is the perspective of others; their memory of the interactions. For most people, what they choose to record may produce very different quality and quantity of information. For example, we are being encouraged to record data on every aspect of movement and sleep patterns for health purposes. This information about the self is less likely to be selfdefining, albeit that the fact of taking such recordings could become meaningful to your life story, as an object of obsession, for example. This is a practice that has resulted in a price being placed upon privacy in that it is possible to pay to avoid your results being mixed with the existing data. It may also start to impact upon medical insurance premiums.

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Returning to Locke, the inner self, as he envisaged it, also has the potential to be cut off from itself. In Chapter 27 of the Essay, Locke further illustrates his position by creating – before Robert Louis Stephenson – the idea of “Jekyll and Hyde” characters within the same body. To demonstrate that selfhood is not associated with the body but with consciousness and memory, he considers the possibility of a consciousness that only remembers its thoughts and actions during the day (the “Day Man”) and one that only remembers those at night (the “Night Man”). In effect, he argues, there would be two different selves within the same body (see Richardson 2010). On Judgement Day, each would only be responsible for those actions that could be remembered as those that particular self had carried out. As Balibar points out, Locke’s original idea fits between the ancient Greek’s idea of migration of souls and the contemporary idea of multiple personalities. In the context of privacy and responsibility, Locke’s description of the Day Man and the Night Man raises the question of cognitive dissonance; of Nagel’s (1998) worry that, if all is to be known about us, then we will lie to ourselves in order to appear to believe acceptable opinions and hence deliberately attempt to repress some memories. This would be a difficult task in any event but, given the extent to which our thoughts and actions are now recorded because of computer mediated communication, such repression, if successful, would result in others having a better memory of our actions than we do. This is already the case with regard to companies that have access to, for example, Google searches and books read from Amazon. This includes any books that were left unread, along with last page read, on kindle. The question would then be: who has access to this information? Is it some faceless company or state official who may take unpredictable action or a close friend of family member? In which case Nagel’s concern becomes irrelevant because repression of the memory will not fool anyone. Viktor Mayer-Schönberger (2009) has argued that – while the issue of privacy is separate from the problem that, for the first time in human history the default position is that information will be remembered – there is an overlap. He gives two examples: “the drunken pirate”, a woman in US whose opportunity to become a teacher was lost because of a picture of her at a party labelled the “drunken pirate”, which was perceived as making her unsuitable as a teacher; and a psychotherapist who was refused entry to the US on the grounds that he had admitted to taking drugs. The admission took place in 1960s in a published article which had later been uploaded to the internet, without his knowledge. Mayer-Schönberger argues in support of the deletion of personal information after a given time period, in part, to avoid such cases. This would be useful but – as MayerSchönberger recognises in viewing privacy as only an overlapping issue – it could also be argued that such cases should not arise; that there is

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unfairness in both procedures that could be tackled differently. The shock that we feel when we see these examples is captured by Helen Nissenbaum (2010), who argues that we should start any analysis of privacy concerns by locating the existing expectations of privacy within a specific context. I would add that these expectations are already a settlement within power relations. Both these examples illustrate our sense of unease when information is moved out of such context. In addition, Mayer-Schönberger has a deeper argument about memory that can be supported by the way that, for Locke, memory is central to “who we are” (the perpetuation of our identity over time, as a duty to God, along with what we are to be held responsible for on Judgement Day). MayerSchönberger argues that, the fact that we have the ability to recall details of life easily using technology, and that this has become a default position, makes it difficult for people to develop. This may not involve responsibility and guilt. For example, it is more difficult to forget an argument if the details can easily (or accidentally) be reviewed. Mayer-Schönberger also draws from contemporary analysis of memory in which it appears that the memory is reconstituted each time it is recalled. It can therefore be altered and – depending upon the importance we give to the memory – with it our identity and sense of self (Mayer-Schönberger 2009, 106; citing Schacter 2001). This new empirical analysis of memory adds a nuance to Coleman and Balibar’s analysis of Locke. The creation of self-identity over time through memory and consciousness will be affected by different interpretations of our memory of events depending upon mood. So, for example, there have been studies (Kolber 2011; Oehen et al. 2012; Doblin 2002) that indicate that when trauma survivors are asked to recall the traumatic incident, they improve by recalling it when in a more positive mood (induced by drugs in the study). The more positive later memory then replaces the earlier memory, helping in the area of Post Traumatic Stress Disorder (Pead, Creamer, and Fletcher 2008; Garcia 2008). I want to consider a few different scenarios. If it is the case that there is a (wrongly) stigmatised image that produces a worry as to public humiliation, for example revenge porn or racist images, then the right to have this removed is obviously important. This publicity itself is problematic (see Richardson 2014), but in the meantime the problem can be helped by a right to be forgotten, as illustrated by European uses of Gonzales v Google Inc. (2014).7 In other cases, the publicity exacerbates an existing trauma. For example in the Australian case of Jane Doe v Australian Broadcasting Corporation (ABC),8 the ABC broadcast the name of a rape survivor after the trial in which the rapist (her husband) had been convicted. The court

7 8

Gonzales v Google Inc. Case C–131/12 (2014) Jane Doe v Australian Broadcasting Corporation (ABC) and Others [2007] VCC 281

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accepted psychiatric evidence that rape survivors often recover after the trial but that the revelation of Jane Doe’s name set back her psychiatric recovery. She succeeded in her case and – as this information was not online – was able to travel to avoid recognition until she had recovered. In this case, the publicity could be viewed as causing two problems: it forced her to recall the rape and also produced social problems. This disruption in her relationships was exacerbated by the revelation being unexpected, giving her no time to prepare those close to her. Following from Coleman and Balibar’s analysis of Locke above, Locke’s view of the self is that it is self-defining. It is the self that – through working on ideas in the world – appropriates them and comes to define its own identity through recall. This allows for a certain disengagement from the world and the emphasis is therefore upon the individual’s memories, which are themselves subject to change. Hence, Locke provides an image of a self that can change through the re-evaluation of memories as well as through loss of memory. This differs from Cavarero’s narrative view of the self in which the life story is provided by significant others rather than worked upon by the person’s own self that is distanced from others. In the next section, I will discuss how this Lockean self can be viewed as also the emergence of a self with an interest.

Law and the governance of the self with an interest I want to end by considering how this conception of self described by Coleman and Balibar can be understood with regard to rationalities of government in ways that set the scene for the next chapter on neo-liberalism. As Foucault points out in his lectures on US neo-liberalism introduced in the last chapter: What English empiricism introduces – let’s say roughly, with Locke – and doubtless for the first time in Western philosophy, is a subject who is not so much defined by his freedom, or by the opposition of soul to body, or by the presence of a source or core of concupiscence marked to a greater or lesser degree by the Fall or sin, but who appears in the form of a subject of individual choices, which are both irreducible and non-transferable. (Foucault 2008, 271) The individual choices are irreducible in that there is an end point that is concerned with the well being of the subject. For Locke, there is an obligation to God to appropriate in order to thrive. As Coleman points out, this involves both the appropriation of the means of sustenance and of ideas, both of which are incorporated into oneself. The individual choices are also non-transferable – not in the sense that one choice could be replaced

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by another, as I could decide to take on someone else’s suffering – but that it concerns my own judgement (Foucault 2008, 272). I would add that, for Locke as discussed, we are responsible for our own judgements come Judgement Day and so discerning our identity becomes important in Chapter 27 Essay. In the last chapter I mentioned the way that Foucault outlines how the social contract is envisaged as turning this “subject of interest” into a “subject of right”. I can now expand upon this point in the context of Locke’s contribution. By this distinction, Foucault refers to the Lockean (and other social contractarian) argument that it is in the individual’s interest to join the social contract and become subject to law. The distinction between the subject of interest and subject of right is used by Foucault in his analysis of the transition from Locke’s self to that of neo-liberalism. The “subject of interest” initially appears as a subject whose commerce should be subject only to laissez faire by government, as part of a liberal form of governing. Foucault questions: to what extent can the subject of interest, or “form of will called interest” (2008, 273), be considered as the same type of will as the juridicial will or as capable of being connected with it? He shows that these are not the same but can be reconciled. So, the jurist Blackstone (1765), following Locke, describes individuals as entering the social contract because their interests were threatened in the state of nature; that is: individuals’ interests are the reason for the social contract. This entry into civil society constitutes the legal subject; the “juridical will”. At this point, for Blackstone, the “subject of interest” becomes a “subject of right” as a result of a “sort of transcendence”. For Blackstone, as for Locke, the subject of right is envisaged as a self who has relinquished some of his natural rights in the state of nature to become part of civil society. In contrast, the subject of interest is never called upon to relinquish his (and later her) interest. There is no transcendence in this alternative story because economists come to view self interested actions as harmonising with the interests of others through the mechanism of the market. As Foucault puts it, referring to the social contract: The market and the contract function in exactly opposite ways and we have in fact two heterogeneous structures. (Foucault 2008, 276) As a result, Foucault concludes that the economic man (the subject of interest) and juridical man (subject of right) have different relationships to political power. As economists come to view the economic man as acting for the greater good when acting in his own interests, he is to be left alone by government. Adam Smith’s invisible hand cannot be calculated by the sovereign (Foucault 2008, 281; Foucault references Smith 2008, bk. IV, Chap. 9). As Foucault puts it:

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Liberalism acquired its modern shape precisely with the formulation of this essential incompatibility between the non-totalizable multiplicity of economic subjects of interest and the totalizing unity of the juridical sovereign. (2008, 282) Whereas the subject of right could argue against the sovereign that the sovereign should not act against the subject’s rights; the subject of interest (“economic man”) claims that the sovereign cannot act as s/he is not able to do so, not knowing the totality of the economic process. Hence, Foucault argues, the fact that subjects of right are also subjects of interest becomes a problem for the art of governing. Neo-liberalism marks a change in that, it is no longer enough to claim that the state should not interfere with the market. Neo-liberalism goes further and uses a market analysis to reverse the roles and interfere with the state itself, from the position of the market: Laissez-faire is thus turned around and the market is no longer a principle of government’s self-limitation; it is principle turned against it. It is a sort of permanent economic tribunal confronting government. Faced with excessive governmental action and in opposition to it, the nineteenth century sought to establish a sort of administrative jurisdiction that would enable the action of public authorities to be assessed in terms of right, whereas here we have a sort of economic tribunal that claims to assess government action in strictly economic and market terms. (Foucault 2008, 247) Similarly, as introduced in the last chapter, the individual is encouraged to view him or herself as if s/he is an enterprise. As Pateman discusses, the individual worker is viewed as having “property in the person”, within liberalism. This is still the case within neo-liberalism, with commodification expanded into other areas of life. Workers are now also viewed as owners of “human capital” for which they receive an income. They – and their parents – are expected to invest in this human capital through education and health, thereby increasing their potential income. So, for example, the extent to which a parent invests time in helping her/his child to develop will increase the child’s human capital, introduced in the last chapter. For Foucault, this way of thinking can be conceptualised as a “grid of intelligibility” that allows for power without coercion.9 Foucault argues that a subject now becomes subject to governmental rationality to the extent that s/he is understood as homo oeconomicus; “that power gets a hold of him

9

See Ewald’s comments in Becker, Ewald, and Harcourt (2012).

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to the extent, and only to the extent that he is homo oeconomicus” (2008, 371). As Hull’s analysis in the previous chapter illustrates, there are various ways which prompt individuals to adopt this way of viewing themselves; to regulate their lives through this conceptual framework. This has implications for their privacy, to be discussed more fully in the next chapter.

Bibliography Althusser, Louis. 1971. “Ideology and Ideological State Apparatuses.” In Lenin and Philosophy and Other Essays, translated by Ben Brewster, 127–86. London: New Left Books. Arendt, Hannah. 1958. The Human Condition. Charles R. Walgreen Foundation Lectures. Chicago, IL: University of Chicago Press. Arrow, Kenneth Joseph. 1972. “Gifts and Exchanges.” Philosophy & Public Affairs, 1 (4): 343–62. doi: www.jstor.org/stable/2265097. Balibar, Étienne. 2006. “My Self and My Own: One and the Same?” In Accelerating Possession: Global Futures of Property and Personhood, edited by Bill Maurer and Gabriele Schwab, 21–44. New York: Columbia University Press. Balibar, Étienne. 2013. Equaliberty: Political Essays. Durham: Duke University Press. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Becker, Gary Stanley, François Ewald, and Bernard E. Harcourt. 2012. “‘Becker on Ewald on Foucault on Becker’: American Neoliberalism and Michel Foucault’s 1979 ‘Birth of Biopolitics’ Lectures.” University of Chicago Institute for Law & Economics Olin Research Paper, no. 614. http://papers.ssrn.com/sol3/ Papers.cfm?abstract_id=2142163. Bell, C. Gordon, and Jim Gemmell. 2009. Total Recall: How the E-Memory Revolution Will Change Everything. New York/London: Dutton. Blackstone, Sir William. 1765. Commentaries on the Laws of England: In Four Books. Oxford: Clarendon Press. Case, Mary Anne. 2005. “Pets or Meat.” Chicago–Kent Law Review 80: 1129–50. Cavarero, Adriana. 2000. Relating Narratives: Storytelling and Selfhood. Translated by Paul A. Kottman. London: Routledge. Cohen, Gerald Allan. 1995. Self-Ownership, Freedom, and Equality. Cambridge: Cambridge University Press. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership Before and After Locke: Or, When Did Common Decency Become a Private rather than a Public Virtue?” European Journal of Political Theory 4 (2): 125–45. doi:10.1177/ 1474885105050446. Danis, Jean-Jacques, and Reiner Hoffmann. 1995. “From the Vredeling Directive to the European Works Council Directive: Some Historical Remarks.” Transfer: European Review of Labour and Research 1 (2): 180–87. doi:10.1177/ 102425899500100204. Doblin, Rick. 2002. “A Clinical Plan for MDMA (Ecstasy) in the Treatment of Posttraumatic Stress Disorder (PTSD): Partnering with the FDA.” Journal of Psychoactive Drugs 34 (2): 185–94. doi:10.1080/02791072.2002.10399952. Ellerman, David. 1992. Property and Contract in Economics. Oxford: Blackwell.

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Foucault, Michel. 2008. The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979. Edited by Michel Senellart. Translated by Graham Burchell. Basingstoke: Palgrave Macmillan. Fried, Charles. 1984. “Privacy [A Moral Analysis].” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 203–22. Cambridge: Cambridge University Press. Garcia, Jane. 2008. “Traditional Trauma Debriefing May Be Harmful.” Government News 28 (3): 10. Graham, Cosmo, and Tony Prosser. 1991. Privatizing Public Enterprises: Constitutions, the State, and Regulation in Comparative Perspective. Oxford/New York: Clarendon Press. Irigaray, Luce. 1985. This Sex Which Is Not One. Translated by Catherine Porter and Carolyn Burke. Ithaca, NY: Cornell University Press. Johnson, Holly, Natalia Ollus, and Sami Nevala, eds 2008. Violence Against Women – An International Perspective. New York: Springer. Johnston, Katie. 2013. “The Messy Link Between Slave Owners and Modern Management – HBS Working Knowledge.” January 16. http://hbswk.hbs.edu/ item/7182.html. Kanter, Rosabeth Moss. 1977. Men and Women of the Corporation. New York: BasicBooks. Keynes, John Maynard. 1963. “Economic Possibilities for Our Grandchildren.” In Essays in Persuasion, 358–74. New York/London: W.W. Norton & Company. Klever, Wim. 2012a. “Locke’s Disguised Spinozism: Part 1.” Conatus: Filosofía de Spinoza 6 (11): 61–82. Klever, Wim. 2012b. “Locke’s Disguised Spinozism: Part 2.” Conatus: Filosofía de Spinoza 6 (12): 53–74. Kolber, Adam. 2011. “Neuroethics: Give Memory-Altering Drugs a Chance.” Nature 476 (7360): 275–76. doi:10.1038/476275a. Leckart, Steven. 2009. “Microsoft Researcher Records His Life in Data.” WIRED, August 24. http://archive.wired.com/culture/culturereviews/magazine/17-09/ pl_print. Locke, John. 1975. An Essay Concerning Human Understanding. Edited by Peter Harold Nidditch. Oxford: Clarendon Press. Locke, John. 1988a. “First Treatise.” In Locke: Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press. Locke, John. 1988b. Locke: Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press. Locke, John. 1988c. “Second Treatise.” In Locke: Two Treatises of Government, edited by Peter Laslett. Cambridge: Cambridge University Press. Losurdo, Domenico. 2011. Liberalism: A Counter-History. Translated by Gregory Elliott. London/New York: Verso Books. Macpherson, Crawford Brough. 1962. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Clarendon Press. Marx, Karl. 1976. Capital: Volume 1: A Critique of Political Economy. Translated by Ben Fowkes. London: Penguin Classics. Mayer-Schönberger, Viktor. 2009. Delete: The Virtue of Forgetting in the Digital Age. Princeton, NJ: Princeton University Press. Nagel, Thomas. 1998. “Concealment and Exposure.” Philosophy & Public Affairs 27 (1): 3–30. doi: www.jstor.org/stable/2672839.

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Nedelsky, Jennifer. 2011. Law’s Relations a Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. Nissenbaum, Helen Fay. 2010. Privacy in Context: Technology, Policy, and the Integrity of Social Life. Stanford, CA: Stanford University Press. Nozick, Robert. 1974. Anarchy, State and Utopia. New York: Basic Books. Oehen, Peter, Rafael Traber, Verena Widmer, and Ulrich Schnyder. 2012. “A Randomized, Controlled Pilot Study of MDMA (±3,4-Methylenedioxymethamphetamine)-Assisted Psychotherapy for Treatment of Resistant, Chronic Post-Traumatic Stress Disorder (PTSD).” Journal of Psychopharmacology, October, 40–52. doi:10.1177/0269881112464827. Pateman, Carole. 1989. The Disorder of Women: Democracy, Feminism and Political Theory. Cambridge: Polity Press. Pateman, Carole. 1996. “A Comment on Johnson’s Does Capitalism Really Need Patriarchy.” Women’s Studies International Forum 19 (3): 203–5. doi:10.1016/02775395(96)00012-X. Pateman, Carole. 2002. “Self-Ownership and Property in the Person: Democratization and a Tale of Two Concepts.” The Journal of Political Philosophy 10 (1): 20–53. doi:10.1111/1467-9760.00141. Pateman, Carole. 2003. “Freedom and Democratization: Why Basic Income Is to Be Preferred to Basic Capital.” In The Ethics of Stakeholding, edited by Keith M Dowding, Jurgen de Wispelaere, and Stuart Gordon White, 130–48. Basingstoke: Macmillan. Pateman, Carole. 2004. “Democratizing Citizenship: Some Advantages of a Basic Income.” Politics & Society 32 (1): 89. doi:10.1177/0032329203261100. Pead, John, Mark Creamer, and Susie Fletcher. 2008. “Ten Challenges in PostTraumatic Mental Health.” Journal of Occupational Health and Safety, Australia and New Zealand 24 (6): 531–39. Pentland, Alex. 2014. Social Physics: How Good Ideas Spread – the Lessons from a New Science. Melbourne/London: Scribe. Richardson, Janice. 2007. “Contemporary Feminist Perspectives on Social Contract Theory.” Ratio Juris 20 (3): 402–23. doi:10.1111/j.1467-9337.2007.00367.x. Richardson, Janice. 2009. The Classic Social Contractarians. London: Ashgate Publishing. Richardson, Janice. 2010. “Feminism, Property in the Person and Concepts of Self.” British Journal of Politics and International Relations 12: 56–71. doi:10.1111/j.1467856X.2009.00393.x. Richardson, Janice. 2011. “Untimely Voices: Rethinking the Political with Adriana Cavarero and Christine Battersby.” Angelaki 16 (2): 143–57. doi:10.1080/ 0969725X.2011.591593. Richardson, Janice. 2014. “Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy.” Feminist Legal Studies 22 (3): 225–41. doi:10.1007/s10691-0149271-3. Rosenthal, Caitlin. forthcoming. “Slavery’s Scientific Management.” In Slavery’s Capitalism, edited by Seth Rochman, Sven Beckert, and David Waldstreicher. Philadelphia, PA: University of Pennsylvania Press. Sandel, Michael. 2012. What Money Can’t Buy: The Moral Limits of Markets. London: Penguin. Schacter, Daniel Lawrence. 2001. The Seven Sins of Memory: How the Mind Forgets and Remembers. Boston, MA: Houghton Mifflin.

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Skidelsky, Edward, and Robert Skidelsky. 2012. How Much Is Enough?: Money and the Good Life. London: Allen Lane. Smith, Adam. 2008. The Wealth of Nations. Adelaide: The University of Adelaide Library. Stanford, Stella. 2013. “Introduction. The Incomplete Locke: Balibar, Locke and the Philosophy of the Subject.” In Identity and Difference: John Locke and the Invention of Consciousness, edited by Stella Sandford, translated by Warren Montag, 9–86. London: Verso. Taylor, Frederick Winslow. 2003. Scientific Management: Comprising Shop Management, The Principles of Scientific Management, Testimony before the Special House Committee. London: Routledge. Thompson, Edward Palmer. 1977. Whigs and Hunters: The Origin of the Black Act. Harmondsworth: Penguin. United Nations Development Fund for Women (UNIFEM). 2010. “Violence against Women and Millennium Development Goals.” www.endvawnow.org/uploads/ browser/files/EVAW_FactSheet_KM_2010EN.pdf. Volkman, Richard. 2010. “Commodification and Privacy: A Lockean Perspective.” HEC Forum 22 (3): 179–95. doi:10.1007/s10730-010-9136-3. World Health Organization (WHO). 2005. “WHO Multi-Country Study on Women’s Health and Domestic Violence against Women: Summary Report of Initial Results on Prevalence, Health Outcomes and Women’s Responses.” http://apps.who.int/iris/handle/10665/43310.

Chapter 5

Privacy as a commodity Richard Posner

Introduction In Chapter 1, I illustrated how some theorists, in particular Judith Jarvis Thomson (1975; 1984) and Charles Fried (1968; 1984) – despite being on different sides of a debate as to whether privacy rights could be reduced to other moral rights – have employed the same image of the individual. This is the view of individuals as owners of their privacy, which is treated as if it were a commodity. This idea of treating human abilities and characteristics as if they were objects that can be alienated by being sold in a market place or as a gift, has a long history, as discussed in the last chapter. I will start by outlining Richard Posner’s (1977; 1984; 1993) arguments on privacy, which is viewed in terms of a market, and Hull’s (2014) critique of them. This is an immanent critique; in other words, Hull questions whether Posner’s conclusions regarding privacy actually follow from Posner’s own assumptions. I will add support to this useful immanent critique and then consider the broader problem of viewing any human attributes as if they are commodities in order to consider what happens when privacy is viewed in this way. This will start with debates around Titmuss’ classic argument that the commodification of blood donation may drive out altruistic motives for giving blood. I consider economics Nobel Laureate Kenneth Arrow’s (1972) review of Richard Titmuss (1971) that draws upon some of the basic tenets of economics. Some of the points Arrow raised in 1971 have been subject to subsequent empirical research, in part motivated by his review. I then apply this analysis to the area of privacy. Whereas Titmuss was concerned mainly with the fact that altruism was undermined by the introduction of a market, Jane Radin (1996) focuses more upon the effect of commodification on the object that is commodified and upon “incomplete commodification”. The employment relationship that has both commercial and non-commercial aspects, provides an example. Whereas Radin emphasises the more human noncommercial side, Mary Anne Case (2005) points to examples when the

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weaker party may try to emphasise the commercial aspect of a relationship in order to try to distance themselves from the other party, to protect themselves from prying. In her examples the only options appear to be either status or contract, with status appearing as familial and intrusive in a workplace setting. More recently, Michel Sandel (2012) has criticised the application of the market to increasing areas of human existence, particularly as it has developed in the US. Finally, these analyses of commodification will inform my broader discussion of how commodification of privacy affects our view of ourselves and our relations with others.

Privacy as property: Posner I will set the scene by briefly recalling the meaning of neo-liberalism of which law and economics is a part. As introduced in Chapter 3 and in the last chapter, neo-liberalism is not simply associated with traditional economic interests, such as support for a free market and the reduction of welfare and financial packages that increase the vulnerability of the third world poor (Harvey 2005). It marks a change in the way that people are governed, by extending a market rationality and techniques, usually employed by companies, both to the state and to individuals themselves (see Foucault 2008; Brown 2003). Individuals are encouraged to treat themselves as if they were corporations, calculating the profit and loss of any interaction, trying to amass ‘human capital’ and assessing risk. Posner starts his application of a market approach to privacy with the following observation: People invariably possess information, including the contents of communications and facts about themselves, that they will incur costs to conceal. Sometimes such information is of value to other people – that is other people will incur costs to discover it. Thus we have two economic goods, “privacy” and “prying”. (Posner 1984, 333–334) To facilitate a neo-liberal economic analysis, in which human relationships are viewed in market terms, he starts with a definition of (one aspect of) privacy: the concealment of information. Posner does not consider privacy as intrinsically good but as of instrumental value. He justifies prying in terms of rational self-interest (Posner 1984, 334) because it enables people to employ their knowledge of others, including their friends and colleagues, in order to evaluate them and to make future decisions concerning them. This fits with his view that there are markets in friendship and marriage as well as employment and that these markets are to be analysed in the same way. This neo-liberal approach marks a shift in framework, from an earlier contractual analysis of rights

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and duties associated with marriage contracts and employment contracts, to the treatment of these contracts (and the relationships that they create) purely in terms of markets. As discussed in Chapter 3, such a market analysis of marriage has much in common with feminist critiques, save that feminists were critical of marriage as a market, holding out the hope of intimate relationships amounting to more than cynical interactions. Pateman also illustrates the way in which such contracts created and sustained subordination, discussed in the last chapter. Posner’s generalised application of market analysis derives from Becker’s extended definition of economics as the study of the distribution of scarce resources. Without recognising the vast diversity of human interests and quirks, Becker expects to be able to rank everyone in order and expects that they will marry/befriend those of an appropriate grade (Foucault 2008, 228).1 Posner’s central argument is that requests that individuals’ privacy should be respected can be understood merely as attempts by individuals to mislead others, by placing themselves in a positive light. He conceives of this as a fraud in the market place of relationships. A piece of personal information is comparable to the description of a car for sale. This is more than an analogy for Posner. Following Becker, Posner really does view friendship and other relationships in terms of a market. For Posner, the effect of such “fraud” – that is the misrepresentation of yourself by keeping some aspects of yourself private – means that the price mechanism of the market in friendship will be skewed, undermining its ability to function efficiently. Following Coarse (1960), high transaction costs can undermine beneficial trades, thereby producing an inefficient distribution of scarce resources (see Scheppele 1988, 38). In this situation, presumably Posner views individuals as rated in their popularity, with the most popular being a scarce resource. By keeping quiet about my ‘warts and all’, I receive a higher rating than is due to me, along with access to more popular people. Such an approach must ignore the fact that someone – who would otherwise be put off – may enjoy my company in ignorance of any unknown warts that would bias them against me. As with Becker, Posner also assumes a very crude view of different aspects of human relations, which are not simply labelled “friend” and “non-friend” and ranked in such a manner. He ignores the extent to which we are quirky and are not always fixed in our interests; that we are influenced by those around us, both in terms of their emotions and their knowledge of the world. These factors undermine the

1

Foucault gives a number of references to the neo–liberal literature: Becker 1976, 169–250; Willis 1973; Leibowitz 1974; Riboud and Iglesias 1977, 240–241; Lepage 1978, 344.

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idea of a single, commensurable, shared popularity scale, particularly one based upon one factor such as wealth.2 Posner argues that law should not assign property rights to those with “guilty secrets” (Posner 1981, 233). In other words, he argues that there is no reason to distinguish between individual privacy and fraud, as both can undermine the efficiency of the market. He accepts that there are some areas of privacy in which this does not apply, giving the example of being viewed naked, and distinguishes this concern for privacy on the grounds that this is not an area that involves a social cost (Posner 1981, 234). He concedes that there are economic grounds for granting privacy rights in a photograph of someone (Posner 1981, 255) rather than allowing it to be treated as communal property. This is based upon the argument that the result would be that the person (for example, an advertiser) who most wanted the photograph would be willing to pay for it. He is envisaging cases in which the person photographed is treating the photograph as property and looking for the best purchaser rather than safeguarding his or her privacy by refusing publication. (This claim would provide an argument against revenge porn – or racially derogatory images – while completely missing the moral and political issues at stake, discussed previously. This renders it politically conservative, not neutral.) Posner also argues that a newspaper should not have a right to publish an image of a man with a deformed nose under an article on ugliness because the article is unnecessary to inform those who know him of information that they need to transact with him (Posner 1981, 258). Note again, that the argument remains market-based, rather than based on a concern for the respect for the individual, with concerns for their well being, or of perpetuating the sort of society in which it is possible to thrive. These concessions by Posner aside, there are plenty of other situations in which people may be unfairly subject to discrimination, if personal information were to be published. Posner recognises this fact but his response is that such discrimination represents an irrational judgement on behalf of those who discriminate. Irrational judgements, he argues, will be weeded out over time because they will be penalised by associated “opportunity costs”. In other words, those whose judgements are biased are not good predictors of others’ behaviour. They therefore miss out by not having

2

In contrast, Spinoza provides a more realistic model in which we are made up of many parts, with diverse interests, which are not fixed but develop in different ways depending upon our encounters. At any given time, we are open to relations with different aspects (or parts) of people (and other things), which cannot be subject to different grades, albeit that some agree with (some or all) of our parts and some do not. This interaction may alter at different times of our lives as we are not “fixed”.

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fruitful relationships with those against whom they are bigoted (Becker 1971; discussed in Scheppele 1988, 28). This, argument, not only shows a willingness to put up with the initial injustice, but is over optimistic as to its correction for two reasons: (1) it does not take into account that unjust stigma can be self-perpetuating in a market place; and (2) such unjust practices can change people, both those who practice it and those who are systematically subject to it, as such they also pollute the culture itself. I will discuss point each in turn. Patricia Williams (1991) provides an illustration of the first point. She was offered a mortgage over the phone for a house in a rich area inhabited by white people in US. Upon discovering that she was black – the information that allowed the discrimination – the cost of the mortgage was raised because there was now (as a result of her application) an increased risk that there would be a drop in property prices. This was a “rational” decision in market terms as the mortgages were factoring into their calculations foreseeable racism by her neighbours. If the woman who lived in fear of being outed as black in a racist society (discussed in Chapter 2) had her secret exposed in these circumstances, then the market mechanism itself would reinforce her fears. As Williams illustrates, her neighbours could effectively treat her as a contagion. They could argue that she should not be allowed to move to the area – not because they were racist – but because she was reducing their property prices (as a result of society’s racism) by living in the area. From the mortgage company’s position, this extra risk would be covered by additional insurance, which was offered to Williams as soon as they knew she was black. Contra Posner, this discrimination would not be self-correcting because the property prices really would drop on the basis of the risk that some white people would continue to be racist. As Williams’ experience shows, the properties would be subject to higher insurance in anticipation of such racism. In this example, the operation of the market as a mechanism has a foreseeable racist effect and as such needs intervention to avoid such discrimination occurring. There is a suitable analogy in both criminal and tort law. Someone who is violent while very drunk does not have to be in the mental state necessary to show that he intends to be violent at the time he commits the violent act. While drunk, he lacks the necessary guilty mind to be liable for the offence. However, the criminal law finds him liable if he knew that alcohol would make him violent when he started drinking. Similarly, a driver who knows that she has epilepsy is responsible for the ensuing car accident if she chooses to drive, even if she did not have the “guilty mind” at the time of the crash because of the epileptic attack. Similarly, I would conclude, some aspects of the market mechanism have foreseeable pernicious effects, such as perpetuating racism, and need to be regulated accordingly. Second, when Posner claims that the market in friendship will correct

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for discrimination and so there should be no bar to the publication of private information that is merely prejudicial (rather than relevant to friendship), he ignores the impact of such ‘initial’ discrimination when it is systematic. Bigoted individual preferences can only be understood within a social history and not as derived from some inner will of the individual as separate from society. There is no evidence that these are easily overcome by a calculation of the “friendship market”. In Spinoza’s terms, bigots are dominated by fear and hatred (sad passions) rather than recognising the reason for their reactions, which in this case involves a social analysis of racism. This example illustrates the way in which rationality in Spinoza’s work differs from mere instrumental calculation of utility. The attempt to understand encounters actually changes the individual and facilitates greater learning and thriving; a positive change in the ability to live well. Bigoted beliefs are difficult to dislodge because they frame the way that others’ behaviour is interpreted. They can also involve circular analysis. For example, suppose some men believe: (a) that women have some unsavoury characteristic (say irrationality as a stereotype); and (b) that to the extent that the women they meet show signs of rationality, they are to be classified as “masculine women”. This bigotry is self-perpetuating. Again, it needs to be understood within the social and historical context that shapes certain passions. As Spinoza comments (from a heterosexual male point of view): One who has been badly received by his lover thinks of nothing but the inconstancy and deceptiveness of women and their other, often sung vices. All of these he immediately forgets a soon as his lover receives him again. (Ethics, V.P10Schol.) There are also a number of mechanisms that perpetuate inequality, derived from the fact that it changes the bigot, the victim and the culture. For example, someone who has been subject to systematic discrimination, such as racism, is less likely to be as assertive or expect to be treated as well as someone raised to feel an arrogant self-entitlement. This is well known in feminist literature. For example, Jean Hampton (2002) illustrates the way that self-belief can be eroded when someone is the subject of systematic discrimination. Similarly, Marilyn Fricker (2007) describes how people who are treated as less credible speakers – either because they are characterised as deceitful or ignorant – will be less likely to have confidence in their own opinions. This is particularly the case when such treatment is systematic, for example being racist or sexist, in that an individual will be subject to such treatment in many different circumstances. In summary, Posner is also too optimistic when he assumes that bigotry is self-correcting. He fails to understand how it is possible to invest in ideas around misogyny and racism – how

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resentment is perpetuated, for example – which will lead bigots to interpret the world in accordance with this prejudiced framework. He also ignores the way in which self belief can be undermined. Turning from Posner’s claim regarding self-correcting discrimination to his view of friendship more broadly, he does not differentiate between the types of knowledge (in terms of levels of intimacy) that are useful for evaluating friends. The example he gives, as to whether a friend is discreet or indiscreet, acknowledges that he views respect for privacy as a positive characteristic. This does not contradict his position that everyone wants to appear in the best light. However, it does appear odd to single out discretion as a quality, given his view that privacy is overrated (Posner 2013). His other example of information that is useful to know about friends is whether they are generous. Both these quality appear easily discernable without any intrusion upon more intimate matters. The very idea of a market in friendship needs more explanation as I doubt that it makes much sense to most people who are not trained in neoliberal economics. In this framework, there is an “opportunity cost” involved in making a friend (as I could be doing something else more profitable). So, presumably the time spend with a friend, who turns out to have a terrible secret that lowers him or her in my estimation, is then viewed as having been wasted. We use the phrase that we “spend time with a friend” but this does not normally bring to mind the idea of undue effort, assuming the time spent was enjoyable prior to the terrible revelation. If this is an accurate characterisation of Posner’s position, then it is a peculiar way of categorising different nuances of relationships in general. (As discussed, it is also a narrow view of ourselves in that people vary as to their many diverse interests and propensities.) I doubt many people think that they have an opening for a friend (akin to a job opening) and classify people accordingly. Different unforeseen directions can emerge from our relationships that are not easily classified. In addition, the idea of constantly viewing one’s time as a scarce resource involves a degree of self-monitoring and pettiness that is likely to interfere with the enjoyment of different encounters. It is difficult to immerse yourself in a particular experience if you are eyeing your watch and filling out a mental time sheet complete with cost-benefit utility calculations. Contra both Nagel (1998), discussed in Chapter 2, and Floridi (2011), to be discussed in the next chapter, Posner does not appear to hold the view that knowledge of a friend or colleague is ever simply “too much information”; that we can also feel our privacy intruded upon when we are told aspects of another’s life that we did not want to know or overhear telephone conversations in public places. Having said this, Posner is correct that there is some information about others that is useful to us and some that intrigues us; that we are curious about the world, which includes curiosity about each other. As already discussed, both Mill and Spinoza are

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sensitive to the idea that we are particularly curious (and learn from) the lives of those who are not stereotypical, or predictable; who experiment with how they live their lives. In contrast, consider Posner’s answer to the interesting question he poses as to why people read gossip columns. He argues that they are educational: Gossip columns recount the personal lives of wealthy and successful people whose tastes and habits offer models – that is, yield information – to the ordinary person in making consumption, career, and other decisions. (Posner 1977, 395–396) Posner does not seem to grasp what is at stake for consumers when he suggests that reading gossip columns is educational. Just as his characterisation of discrimination missed any analysis of the passions involved, his characterisation of followers of celebrities seems wooden. An analysis of passions would involve some consideration of the fans’ desires, either sexual desire and/or the need to feel a part of someone’s life, albeit from a distance. There may also be broader gratifications involved in following the lives of celebrities. Perhaps, for some, it is akin to the desire that twitchers have for spotting birds, or more like a soap opera. There could be many odd motives, which we do not know without further empirical evidence. In any event, while much of the press relies upon such desire, it is questionable whether the creation of desire and the portrayal of celebrities is motivated by its “educational value” or produces it, as Posner would have us believe. Situating his readers in a certain class, Posner supports his argument by claiming that there is no interest in the lives of the poor unless they are “like us but who became poor” (Posner 1977, 396) on the grounds that there is educational interest in such a comparison. Again, his argument regarding educational interest seems implausible and (coupled with the above quote) seems to show deference to the rich. Since his analysis of privacy, there have been popular reality television programs that do focus on the lives of those on welfare benefits in the UK. Although contemporary television may sneer at the poor, others may also be interested in how it is possible to survive in difficult circumstances. The educational value of those Posner mentions would involve – not an analysis of someone’s life choices – but of the economy in which s/he lives, the vast amounts of inherited wealth and whether neo-liberal policies are in place, such as the use of unemployment to weaken organised labour. Without such a historical background, the framework of individual choices cannot be understood but has the effect of situating the individual as the sole author of these choices. This view of the individual ‘free will’ (ripped out of context) is reminiscent of the last nineteenth century cases in which workers were denied

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compensation on the grounds that they had chosen to work in unsafe conditions of they own “free will”.3 Posner criticises Warren and Brandeis’ view that the press manufactured the rise of curiosity about people’s lives stating that: The economist does not believe, however, that supply creates demand […] A legitimate and important function of the press is to provide specialization in prying in societies where the costs of obtaining information have become too great for the Nosy Parker. (Posner 1977, 396–397) This first sentence needs to be examined as it is ambiguous. In the context, it sounds as if Posner means that it is not possible for businesses to produce desire for their products. Given the vast amount of money spent on marketing, there is ample evidence that this is wrong. Why else would chocolate be consistently put in front of till counters in supermarkets? Posner is right to say that “supply creates demand” (Say’s Law) has generally been rejected by economists. However, Say’s Law has a different meaning from the claim that it is possible to manufacture desire as it refers to the possibility of oversupply. As Keynes (1936) in his criticism of Say’s Law points out, people may desire goods but have insufficient money to buy them and so there can be over-supply. (If “supply created demand” then there would be no oversupply in this economists’ sense.) So, this “economists’ rejection” of Say’s Law does not aid Posner’s argument against Warren and Brandeis because Warren and Brandeis are arguing that the press manufactured desire for prurient stories. Warren and Brandeis’ classic argument for legal privacy protection was discussed in Chapter 2. The part Posner is referring to states: In this, as in other branches of commerce, the supply creates demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more. (Warren and Brandeis 1890, 196) Warren and Brandeis argue that intrusions by the press, at the time of the invention of the Kodak camera, were not only hurtful to the individual who was the subject of the publicity but also had a corrosive and corrupting influence on society. They were concerned that the gossip columns created a desire for more gossip by inflating its importance (by virtue of it being in print) and by appealing to a weak side of human nature that is not “wholly

3

In the UK this common law precedent was first reversed in HL in Smith v Baker & Sons [1891] AC 325, mentioned earlier.

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cast down by the misfortunes and frailties of our neighbours” (Warren and Brandeis 1890, 196). Below, I will discuss the corollary of this argument today, in assessing what is lost if a market approach to social relations comes to dominate a society. Turning to Posner’s position on third party conversations, his approach follows from his characterisation of individual privacy. He argues that third party conversations – that expose discreditable information about an individual – are useful in revealing individual “fraud” (Posner 1978, 22; 1984, 339; Scheppele 1988, 39). Note that at this point in Posner’s discussion, his argument depends upon the private information being “discreditable”, rather than prejudicial. Although Posner stresses this element as characterising individual privacy, it is a very narrow view of the areas that individuals wish to keep secret. The equivalent in terms of companies would be protection for whistle blowers, raising the question as to whether – given this logic – Posner would allow them anonymity. In contrast with individuals’ information, Posner argues that companies’ trade secrets should be protected in order to provide an incentive for investment. Whether trade secrecy protection encourages investment is an empirical question, the answer to which cannot necessarily be presumed (Hull 2014). In summary, Posner’s assumption is that individuals’ privacy should not be protected because it will usually consist of guilty secrets, whereas companies will have their creativity thwarted without trade secrets. However, there are plenty of examples in which these positions are reversed. Hull cites evidence that corporate secrets can undermine creativity, for example, when data is not shared in medical research. He cites work by Pasquale: By siloing data, health insurers and providers have impeded the types of large-scale analysis common in other industries. Providers have kept vital information about price, quality, and access secret to maintain a competitive advantage or hide shortcomings. For example, insurers keep secret many of the prices they pay. Each major drug company’s ‘data exclusivity’ may mean that rivals waste vast amounts of money pursuing leads that have already proven to be dead ends. Health information technology systems may not be interoperable, leaving them unable to ‘talk to one another’ and share data. (Pasquale 2013, 683; quoted in Hull 2014) I would add that there are more situations in which the asymmetry of information favour companies rather than individuals, either as consumers, employees or citizens. Litigation has revealed a number of cases, in which companies have sought to hide their testing of products or business practices (see Scott 2012) to the detriment of consumers. In medical cases this can be a serious detriment. The online contracts that involve signing away privacy are characterised by stark informational asymmetry. Similarly,

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citizens may not be aware of the details of lobbying by companies, of governments behind the scenes. Companies are also at an advantage in their negotiations with unions and also have much greater information than individual employees, regarding work contracts. The employment contract, which in common law countries contains an open implied clause that an employee will be willing to obey ‘reasonable’ orders, rarely details all that is required at work. This is particularly the case when employers are scarce and exit costs to the employee high. In these cases, the company is not in the position of the Posner’s “shrewd bargainer” who has invested time in finding out information. It already knows how it operates and so the arguments that Posner applies to the individual are relevant. Within Posner’s framework, this information asymmetry (that was the basis of the argument against support for individuals’ privacy) should be applied to companies. After all, Posner’s own conceptual framework is based upon the treatment of individuals as if they were companies. Therefore, it is consistent with Posner’s own framework that corporate informational asymmetry should be corrected to avoid distorting the market mechanism in this area. Conversely, as Hull points out, in the area of individual privacy there is evidence of much greater possible harm, as a result of humiliating and/or discriminatory information ‘going viral’ (Hull 2014). Some information will prompt unfair discrimination that is prejudicial because it is shocking or unusual, rather than relevant to someone’s character. Additionally, there is no reason why the argument that privacy is necessary to encourage creativity in companies should not be applied to individual’s creativity (Hull 2014). This is one of Julie Cohen’s (2013) arguments, discussed in Chapter 1. Recall, Cohen’s argument has much in common with Mill’s On Liberty: that individuality and diverse ways of living will be circumscribed if they are subject to too much social pressure. Online humiliation would certainly qualify. By ignoring these points, Posner argues that it is a misguided approach for legislators to favour individual privacy and undermine corporate privacy and laments the fact that he views legislation as having progressed in this direction (Posner 1984). There are further situations in which individual privacy furthers social aims. In his work on blackmail, (Posner 1993, 1833) accepts the point that threatening to make public a non-criminal condition, such as impotence, will do nothing to decrease the number of impotent men. On the contrary, it will make the condition worse because men will be discouraged from seeking medical advice. It follows from this analysis that individual privacy will facilitate the positive social aim of ensuring that people seek and receive medical treatment, a point formed one of the arguments in the leading case on UK common law privacy in Campbell v MGN Ltd. (2004).4 4

Campbell v MGN Ltd. [2004] UKHL 22.

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Posner on blackmail It is worth completing this discussion of Posner’s approach to privacy by considering his analysis of blackmail. Lord Lane CJ, in R v Hadjou (1989),5 described the attempt by the defendant to blackmail his ex-lover, by threatening to reveal video tapes of them having sex unless she paid £2,000, in the following terms, while imposing a four year sentence: [I]n the calendar of criminal offences, blackmail is one of the ugliest and it is one of the ugliest because it involves what really amounts, so often, to attempted murder of the soul. Per Lord Lane CJ in R v Hadjou (1989)6 In contrast, Posner (1993, 1818) states that ‘economists’ have a problem justifying the criminal status of blackmail because they are keen on voluntary transactions between consenting adults. This covers the agreement to pay someone for their silence, in order to maintain informational privacy. However, Posner argues that – although it is a voluntary contract – it should be forbidden because “it is likely to be on average wealth reducing rather than wealth maximising” (Posner 1993, 1818). The aim of the blackmailer is a transfer of wealth from the victim to the blackmailer – which Posner compares with theft. It reduces wealth in that there are costs to the blackmailer in producing the threat and the costs to the victim in resisting the threat (Posner 1993, 1820). Posner considers a number of situations in which blackmail may occur, including the situation in which the victim is a criminal whose crime has gone undetected. He gives an economic analysis of the extent to which blackmailers could be viewed as “private law enforcers”. The blackmailer could be the original victim of the crime. There is something naive in this market analysis which ignores the problems that ensued when people did take law into their own hands to produce private justice (and the likelihood of violence involved). This risk of escalation was the reason that tort law has such a long history. In the Two Treatises of Government, discussed in the last chapter, Locke deals with this question in the context of a society without laws. The problem, he famously argues, is that we overestimate the harm done to us and hence an impartial judge is required to dispense justice. This would be the case were the victim of a crime to set the price, which would depend upon the resources of the (presumed) criminal. In contrast with Locke’s state of nature, if this were to occur in the shadow of a legal solution, then presumably the upper limit would be set by the estimation of the legal penalty. This may be modified if the “criminal” blackmailed had

5 6

R v Hadjou [1989] 11CAR(S) 29. For discussion see Alldridge (1993). R v Hadjou [1989] 11CAR(S) 29.

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more to lose, such as public office or reputation. If s/he had committed a serious offence then such “private law enforcement” would effectively be a way of avoiding imprisonment and the idea of a “debt to society”. The public would not be warned of any danger to others. When Posner points out that criminals rarely have the resources to cover the harm that they have caused, he assumes that offences all have a monetary value – a point that is particularly problematic in his example of a “wife slayer” – his dubious description of murder. Note that, in his review of Radin’s book, to be discussed below, Kenneth Arrow (1997) tries to defend economists against the view that they reduce everything to monetary value; that they “know the price of everything and the value of nothing” (Wilde 2005). To summarise Posner’s position on privacy: he argues that property rights should be assigned to an individual/company if to do so would encourage her/him/it to obtain socially useful information but not otherwise. He appears to view the choice of a market approach as morally neutral. Yet this way of conceptualising what it is to be human only makes sense within a market society, a society in which all human endeavours and attributes are commodified. It is in keeping with an impoverished image of the individual that follows from, and yet goes well beyond, Locke’s individual as owner of property in the person. (As I discussed in the last chapter, Locke argued that we have obligations to others.) Posner claims that trade and business secrets should be protected; facts about people generally should not be protected unless obtained through eavesdropping or surveillance, which can only be employed in crime prevention. The analysis so far is an immanent critique – explicitly starting with the presumptions made by Posner, in order to highlight inconsistencies between his treatment of individuals and companies. However, the view that privacy should be seen as property is itself contentious, particularly outside the US. Instead of immanent critique, it is possible to step back and question Posner’s overall aim for which he is assessing privacy. This is not respect for persons or increased happiness – at least not directly – or moral virtue but simply based upon market efficiency. Such an aim is sometimes positioned, by its proponents, as itself being morally neutral. For example, in his book Comparative Law and Economics, Mattei states: Justice is a “subjective” value whereas efficiency is “objective”. (Mattei 1997, 4) Posner, a judge, does not make this comment but it illustrates at least one view of law and economics, that it would replace attempts to do justice with supposedly neutral efficiency. As Foucault (2008) analyses, neo-liberalism can be viewed as a process which can create its own standard of truth. We are understood only within a particular “grid of intelligibility” that seeks to replace all other frameworks and fits all aspects of life within market

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experiences. As discussed with regard to discrimination above, arguments based upon efficiency alone have a number of predictable and negative effects upon society. In the next section, I will consider examples in which the switch from non-market norms to those of the market changes the way in which particular social relations are understood. This raises the question as to whether such a grid of intelligibility has the potential to undermine alternative values and ways of life. It also raises the question: when are the only choices in relationships between status and contract? I will argue that, in many circumstances, people are able to use “double vision” and to interpret relationships within different “grids of intelligibility”. They can attempt to understand and to alter power relations by conceptualising the relationship in different frameworks. Today, the most salient understandings are around whether a market exists but this is not the only potential framework. This understanding affects the imagined “distance” between individuals and the struggle over the extent to which privacy can be protected.

The commodification of privacy: Titmuss and Arrow What would happen if more people adopted Posner’s framework and viewed each other in instrumental terms, specifically viewing human privacy as only a commodity? I will select the work of Titmuss (1971), Radin (1996) and, more recently, Sandel (2012) in order to consider different aspects of the problem of commodification, explaining the literature broadly before drawing out the implications for privacy. Arrow (1972; 1997) has produced influential responses to both Titmuss and Radin in reviews on this subject, twenty five years apart. I will also consider his arguments, while recognising that economists – like contributors to any other discipline – do not speak with one voice. I also find Case’s (2005) response to Radin compelling, despite the fact that it supports arguments for commodification in very specific, non-ideal circumstances, which promote privacy for the weaker party. Titmuss’ (1971) classic study of blood donations in US and UK led him to argue against introducing a market in blood donation into the UK; that it should remain voluntary. Titmuss concluded that those who would otherwise give blood for altruistic reasons would no longer be motivated to do so if a market were introduced. Furthermore, Titmuss pointed out, that there were more cases of blood contaminated with hepatitis in the US because the existence of the market gave people an incentive to disguise the fact that they were ineligible to give blood, that is, to cover up their hepatitis. Volunteers had no such motivation. In addition, the demographic of donors differed between the two countries in that it was predominantly the poor who donated in the US, where there was a market. This demographic included more drug users who were at greater risk of hepatitis.

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In his review of Titmuss’ book, Arrow (1972) argued against Titmuss’ main conclusions. Arrow’s arguments are important, not only do they give clear insight into a Nobel Prize winning economist’s position but they also raise empirical questions that cut to the heart of an economics-based image of what it is to be human. Fortunately, as I will outline, some of the useful questions that he raised have now been subject to much empirical study (Frey and Jegen 2001). I will therefore consider Arrow’s analysis of Titmuss in detail. Arrow’s first argument, is that there is no empirical evidence to support Titmuss’ claim, that those who want to give blood would be prevented from doing so by the existence of a market in blood (Arrow 1972, 350). He goes on to ask: Why should it be that the creation of a market in blood would decrease the altruism embodied in giving blood? … Evidently Titmuss must feel that attaching a price tag to this activity anywhere in the system depreciates its value as a symbolic expression of faith in others. (Arrow 1972, 351)7 Sandel (2012, chap. 3) in his chapter on “How markets crowd out morals” provides a response to Arrow’s question, disputing Arrow’s view that Titmuss was wrong. Sandel’s response is that “commercializing blood changes the meaning of donating it” (Sandel 2012, chap. 3). If there is a market in blood, he argues, then the altruistic donor may hesitate in that such giving could be viewed as an unfair labour practice depriving the homeless of an income. If it is equivalent to money then it may feel preferable to donate money. Arrow rightly pointed out that the answer to his question required empirical study. Since his review of Titmuss’ book in 1972, there have been many relevant experiments, in part prompted by his review. This subsequent evidence undermines his claim that commercialising an activity does not change its “symbolic value”. I will give a few examples to illustrate the point and to explore analogies regarding privacy. The first example is an experiment carried out on students who were collecting for charity (Gneezy and Rustichini 2000a). These were divided into three groups randomly. All were given the same motivational talk about the importance of what they were doing but group 2 was told that they would receive 1 per cent of the amount they collected. Group 3 were told that they would receive 10 per cent. Groups 2 and 3 were also reassured that their payment would not be deducted from the charitable donations themselves.

7

I will leave aside the last phrase in which Arrow assumes that people volunteer to give blood on the assumption that others will do the same if they need it and not for other reasons, for example that they feel a duty to do so, irrespective of the consequences, by applying the Kantian categorical imperative.

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The first group, who were not given any payment, collected the most money. It does not appear that adding payment simply added to the student’s motivation in a neutral manner but that it changed the nature of the activity itself. This experiment is very close to the Titmuss’ example because it involves a change in people’s altruistic motivations when payment was introduced into the activity. It does appear that there are circumstances when altruism is a better motivator than money and that the offer of money drives out such altruism. If there is money involved, we view ourselves as motivated by the money. Another way of describing this is that we tend to categorise relationships in different ways. In this example, the choice is between relationships that are viewed as either commercial or social. The introduction of money makes us re-evaluate the relationship as one in which the mores of commerce take precedence, with a different set of obligations (Ariely 2008, chap. 4). An alternative interpretation has been argued: that someone’s self esteem is devalued when their own motivation is not acknowledged, thereby reducing their incentive to work harder (Frey and Jegen 2001, 594). These are not incompatible. In this experiment, a better way of thinking about the issue of self esteem may be that the insult could have lessened motivation rather than having affected the students’ self esteem per se. Whatever the psychological reason, which may vary in practice, the experiment supports Titmuss’ position against Arrow: that the introduction of payment can drive out altruism. I would like to note, at this point, that the non-commercial relationship (or aspect of a relationship) can differ. In this situation it is altruistic (or social). In those described by Case, to be discussed below, the non-commercial aspect of the relationship is more akin to feudal relations based upon status. Such a change in the meaning of a situation as a result of the introduction of a market can also be seen in circumstances in which there is an actual obligation rather than a supererogatory altruistic activity (Gneezy and Rustichini 2000b). A day care centre in Israel had a problem in that parents tended to be late to pick up their children. This meant that teachers had to stay late and, in an attempt to combat this problem, they introduced a fine. However, the problem greatly increased as a result, with more parents turning up late. The parents no longer felt that they owed the teacher a social obligation to turn up on time because they were paying for their lateness. Importantly, in keeping with Titmuss’ worry, once the fine was removed the number of latecomers did not diminish. This is consistent with the view that parents continued to see the relationship in commercial terms rather than a return to the status quo ante. The introduction of money had changed the way parents understood what it meant to turn up late. In these cases, the quality of the blood and child-care do not necessarily change – although they may – but the human relations and sense of obligation do alter if an activity is commercialised. The exchange of money

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helps us to estimate how the other party views situation and the relationship. I mention that the blood quality may be worse when it is purchased because (as discussed) Titmuss also argued that there would be pressure to suppress information about infected blood if there were a market in it. In this context, Arrow emphasises the need for truthfulness in commercial transactions, recognising that a market depends upon such moral social mores (Arrow 1972, 357). In addition, the standard of childcare may alter, dependent upon motivation. (In this case, the meaning of the child-care was not altered. The carers were attempting to impose a fine for lateness.) Recall Arrow’s question was: “Why should it be that the creation of a market in blood would decrease the altruism embodied in giving blood?” Uri Gneezy’s and Aldo Rustichini’s (2000b) empirical research suggests that the answer is that the introduction of market relations replaced those of non-market relations – thereby removing a sense of obligation. Hence, market relations do not provide an additional motive in these circumstances but alter or replace the relationship itself. I can add personal experience, which is purely anecdotal but is illustrative. I was a student at a university where the library had a policy based upon the insight that eluded Arrow. Anyone who returned a book late was taken into an office. It was explained that there were students at the university with very different incomes. Therefore, a fine for a late book would adversely affect some students and yet not serve as a disincentive for others. It had therefore been decided that anyone who had late books should have it explained to them why returning books amounted to bad behaviour. It was in keeping with the university’s educational aims that an attempt was made to teach students that no amount of money should be able to buy someone out of behaving decently; that behaving fairly entails a respect for others. This may not be effective outside of such an institution, particularly if a neo-liberal belief system, which views all relations in market terms, becomes widely held. As a result, Finland applies an alternative by imposing fines as a proportion of income in order to stop the rich treating fines as fees (BBC 2002; BBC 2004; cited in Sandel 2012, chap. 2, fn. 38). There are a number of psychological experiments of this type (detailed in Deci, Koestner, and Ryan 1999). Frey and Jegen (2001) point out that Becker (1976) who, like Posner, analyses all human relationships in terms of a market mentality, predicted wrongly that fines would increase compliance. If such an analysis produces intuitions about a situation that ignore the possibility of motivations for behaving fairly, then the question arises as to whether the spread of such a “market mentality” itself could become a self-fulfilling prophecy. It remains to be seen the extent to which it could close down areas in which altruistic activity can occur and change the way in which we view each other into one of only instrumentalism. This depends upon a view of what it is to be human and whether it is assumed possible to eliminate sympathy for others, which Adam Smith, for example,

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viewed as natural.8 Given human diversity, the idea of one “grid of intelligibility” alone coming to dominate completely is not one that anyone supports. One aspect of the problem has a Hobbesian logic: that particular areas of life will be diminished if people assume that others are using such a calculus and respond in kind rather than being more generous. If this is to be treated in terms of games, which employs a framework that is already compatible with neo-liberalism, then it should be noted that in repeated exchanges, starting by being generous and then reciprocating is viewed as a winning move. It should not be assumed that people will necessary employ such game playing nor that the introduction of money should always be interpreted in terms of corruption. People are aware of such interpretations and the introduction of money can be interpreted in different ways. I will demonstrate this point by considering an analysis employed by Sandel. In 1993 a Swiss village voted to agree to store nuclear waste, on the basis of having heard their government’s arguments that this was the best place for it to be stored. When the Swiss government tried to sweeten the deal with payment, the vote dropped from 51 per cent in favour to only 25 per cent, with villagers stating that they could not be bribed (Frey, Oberholzer-Gee, and Eichenberger 1996; discussed in Sandel 2012, chap. 3). Sandel describes the villagers’ response in a way that is consistent with the above experiments: [T]he prospect of a private payoff transformed a civic question into a pecuniary one. The intrusion of market norms crowded out their sense of civic duty. (Sandel 2012, chap. 3) However, there is an alternative explanation. The reference to bribes is consistent with an interpretation that the villagers were still being civic minded but that their loyalty shifted to their village rather than their country. The offer of money laid them open to a later accusation (from later generations of villages) that they had betrayed the village in exchange for personal profit. I think this is more consistent with the reference to being bribed than Sandel’s interpretation that the villagers were referring to their votes being purchased. If my interpretation is accepted, this example differs from the earlier two in which individual relations were understood differently. Before leaving these examples, it is worth noting a passing similarity (but important distinction) between the examples of motivation to do work (such as collecting money) and Pentland’s (2014) analysis of motivation,

8

“How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him … The greatest ruffian, the most hardened violator of the laws of society, is not altogether without it” (Smith 2002, 11).

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discussed in Chapter 1. Recall that Pentland attempts to capitalise upon the idea that social obligations provide a powerful motivation for individuals. He argues that these obligations could be employed in the workplace to pressurise employees into complying with policies by offering incentives to their colleagues rather than the individuals themselves for compliance. This plays upon altruism to colleagues but the main beneficiary is the company. In my view, this is likely to be recognised as manipulation and may initially be successful but could also strain workplace relations in the long term. Alternatively, it could waste time spent gaming the system, to achieve the same result as direct bonuses. This differs from the examples described by Titmuss and by Gneezy and Rustichini (2000b) in which the needs were genuine. It ignores the extent to which people are subtle about their relations with others and are able to flip between different salient “grids of intelligibility”. I will apply this analysis to the issue of privacy generally below. However, at this stage, it is useful to consider privacy examples akin to the situations just described. For example, populations fill in a census form on request. Some may be motivated to give information to the government that would allow appropriate decisions to be made about public works. Given that there is an increased market in private information will this put off genuine respondents? From the cases detailed above, it would appear to be a bad strategy for the government to offer payment, which has the potential to drive out civic minded motivations (as, for some, it may be easier to forgo the money than have a conscience about failing to perform a civic minded activity, although others may be motivated by money). Both choices may skew the sample. This is an empirical question about a given culture. The main problem with the existence of a market per se is that there has been evidence that governments seek to profit from individuals’ personal information, for example the UK government has sold medical information. If potential respondents feel that their information is being used for purposes to which they have not consented then this would undermine their willingness to provide truthful information. This is particularly the case if they are also at risk of private information leaking. The question as to whether government should pay for census information raises a question that returns us to Arrow’s analysis of Titmuss: whether the extension of market norms into more areas of life may threaten altruistic and civic values by limiting ways in which it can be expressed. This is of interest because of his assumptions about ethical behaviour. Sandel (2012) point out that, in his response to Titmuss (1971), Arrow (1972) supported two “tenets of market faith”. The first, as discussed, is the view that commercialising something does not alter it. The second is that “ethical behaviour is a commodity that needs to be economised”. In other words, Arrow treats ethical behaviour as if it were a scarce resource to be used only when the market will not work. He states:

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We do not wish to use up recklessly the scarce resource of altruistic motivation. (Arrow 1972, 354–355; discussed in Sandel 2012, chap. 3) Sandel’s response is more persuasive. He argues – drawing upon a tradition of virtue ethics – that ethical behaviour is more like a muscle that will waste away if it is not used. This criticism runs deeper than an interpretation of specific areas of concern. It relates to the question of the prevailing belief system in a society. Hence, Sandel’s worry is that neo-liberal economics itself provides a way of thinking about individuals (along with ways of acting) that may undermine our view of others and hence the ways of life open to us. He reflects on current US culture to add that, not only has there been an increase in the gap between rich and poor, but there are many more ways in which areas of life have been commodified. Money can buy more advantages as areas that were not previously the subject of commodification are opened up. I would add that this includes privacy.

“Contested commodities” In her book Contested Commodities Jane Radin (1996) makes a different case against the commodification of human attributes. In his review, David Archard (1998) distinguishes between Titmuss, who was concerned with motivation (that the altruism that led to blood donation in the UK would be threatened by the production of a market in blood) and Radin, whose primary interest is in the effects of commodification on the object of exchange. It is not always easy to separate these two concerns. For me, what is altered should be view as the human relations; how it is appropriate to act towards another person. In addition, “grids of intelligibility” through which we view our interactions are not limited to two: commercial and noncommercial (defined against the commercial within this framework). This misses the nuances of relationships. “Non-commercial” relationships can be shown to differ, as I will discuss below when considering Case’s examples. Additionally, our attitude to what is commodified and our motivation depend upon our view of what is appropriate to the relationship itself. Radin poses the question as to whether there is a slippery slope in commodification. To take a stark example that she employs: if there were a market in babies, would children who were rated lower on the market be treated differently by the existence of a market itself, irrespective of whether they were objects for exchange within it? At this point, she is not discussing the social and economic disasters that produce the sort of inequality that results in such a desperate market. She acknowledges this inequality but is asking a question about changes in attitudes when different human attributes – or humans themselves – are commodified. She points out that there can be “incomplete commodification”: that there can

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be some goods that can be partially commodified, such as occurs within the employment contract, which always involves personal relationships. Note that this is a different question from that of Pateman (2002), discussed in the last chapter, who asks what it would be for society to allow either complete commodification of property in the person (including voluntary slavery), partial commodification and no commodification at all. Radin is focused upon the commodified object and asks: what happens if it is sometimes commodified. This covers both relationships in which property in the person (that cannot be removed from the body) is exchanged (as in the employment contract) and the exchange of bodily or other objects (such as blood or babies) in a one-off transaction rather than the creation of a relationship. This would cover Titmuss’ example concerning blood and so the experiments in answer to Arrow’s question are relevant. Arrow (1997) also responds to Radin in a book review. He argues that economists do not necessarily treat human attributes as exchangeable for money but do rate them in terms of preferences. He emphasises that economists would not recognise themselves as arguing that many “contested commodities” should be viewed in terms of money (Arrow 1997, 760). Arrow’s concern to distance economists from such a view may reflect a change within economics itself given the extent to which US society commodifies increasing areas of life. It may also reflect the fact that economists do not speak with one voice. The problem of seeing something in terms of a market need not mean that money is involved. Case (2005) references a film, Roger and Me, and gives an illustration of this problem taken from the film, when she describes a sign post advertising rabbits stating: “Rabbits: Pets or Meat”. This “gestalt switch” between viewing a rabbit as a pet or as meat does not rely upon its having a monetary value but upon our emotional attachment, the different relationships we can have with other entities, whether human or not. Similarly, neo-liberals have argued that marriage is a contract to regulate an ongoing relationship, thereby reducing transactional costs. This provides additional examples of non-monetary exchanges. To illustrate this, Foucault (2008, 358) uses the example of a husband saying that he will work on his wife’s fields if she will have sex with him. This type of exchange already assumes that sex will not be concerned with female desire and employs the fiction of property in the person, a point Pateman also analysis (discussed in the last chapter) but without her critique of subordination. Radin recognises that some types of personal property are “bound up with the self in ways that we understand as morally justifiable”. She argues that there is a continuum between such types of property and those that are fungible (Radin 1996, 55; Arrow 1997, 760). She then draws from Nussbaum’s (1988; 1992) discussion of human capacities to consider what may be alienable without damage to the self. Radin is also concerned that something important is lost when the discourse of economics dominates,

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such that we view everything in market terms, citing a particularly pernicious example of this in Posner’s work: his characterisation of rape in terms of theft, as an interference with a woman’s property right (Posner 1992, 218; discussed in Radin 1996, 86). Radin’s central claim is that “contested commodities” are problematic because they involve a violation of personhood. In his review, Arrow cites “commodities” such as one’s vote or the outcome of judicial systems – that cannot be sold. He narrowly defines these as “concerned with the operations of the social system” but does not attempt to justify where the line is drawn. To apply Radin’s approach to private information involves considering what should be classed as personal information (that is so close to “who we are” that commodifying it undermines us). The reference to personhood raises the Kantian issue of respect for others; whereas the conception of self adds the dimension that we could be harmed as well as demeaned in terms of moral worth. This, of course, depends upon the frameworks employed to understand privacy. Where the private information is so intimate that it can be viewed as part of one’s self (and ownership as being more akin to ‘my body’ than ‘my car’, as Floridi 2006, 40 puts it) then it is difficult to consider this change as being possible at all without severely damaging a conception of self. However, while very sympathetic with Radin’s concerns, I am dubious about the idea that we can divide between areas that will be problematic to commodify and those that are not. This may be pragmatic in law, Radin’s aim, but is on shaky ground if assumed to be a fixed interpretation of interactions. It is also the case that our intuitions on which this analysis is based tend to be gendered in ways that bring out important questions of privacy. To illustrate this point I will turn to Case’s examples. Case (2005) responds to Radin’s analysis of human relationships that can be characterised as involving incomplete commodification, that is, they can be viewed within market terms or in other ways. Her examples are useful to think about how different “grids of intelligibility” through which we define relationships can impact upon struggles over privacy. Radin’s position is that we should emphasise the way that, in practice, few relationships degenerate into complete commodification. She gives the workplace as an example expressing the understandable concern that there should be greater emphasis upon the aspect of relationships that are more human; that there is more to employment relationships than exchange of labour power in a market. In response, Case considers situations in which the weaker participant emphasises the commercial nature of the transaction. There are three main examples all of which are gendered and derived from empirical studies. The first is historical. Case quotes from a former black slave, working as a nanny, who compares her treatment in the South in which she is merely seen as a chattel with her treatment in Washington. She preferred being treated as a chattel compared to her employment in Washington because in Washington her employer wanted her to give (what

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we would now term) “emotional labour”, telling her employer that she was attractive, for example (Childress 2012, 19–21, 69). Similarly, another servant also describes attempts to invade her privacy by her employer (Kaplan 1987, 101 quoting the author’s mother, a domestic worker, as saying, “I have to listen to them, but I don’t talk. It’s none of their business. When they ask me how I’m doing, I just say fine. They just want to know my business so that they can tell their friends”). Case’s second example reverses the roles of employee and employer from the last example. In a current day situation, in which privacy issues are clearly problematic, elderly employers emphasise the commercial nature of their relationship with their carers. This can allow them to distance themselves in a power relationship in which they are in a potentially weak position, irrespective of the fact that they are employers. In contrast, the carers like to view themselves as motivated by an ethic of care, which could appear genuine or patronising. Third, Case considers the position of secretaries: Elaborate praise …, coupled with flowery requests for services, also helped bosses reduce … any concern they had about their position of differential authority. When secretaries’ rights organizations began to agitate for “raises, not roses,” they were challenging this notion of what motivated women. (Kanter 1977, 86–87; cited in Case 2005, 1134) The phrase “raises, not roses” was a direct attack on the idea that secretaries wanted love not money for their labour; an idea that was derived from (and potentially reinforced) the way that women continue to be positioned in terms of status rather than contractual relationships more than men. Case’s arguments are compelling in that they show the way that there is discomfort with the idea of women’s abilities being treated as commodities in a workplace. She asks: why we do not view nannies as akin to sex workers? Where the only alternative to being positioned as part of a “family”, in ways that intrude upon privacy, it is no wonder that an emphasis upon the commercial nature of the relationship is a better alternative. This is consistent with Pateman’s arguments discussed earlier, in which she shows how hierarchical status relationships become replaced by contracts for the exchange of property in the person, which also produces another (different) relationship of subordination. Case’s analysis demonstrates how these subordinate relationships differ and the way that the idea of contract and commodification can be used to empower weaker parties. Obviously, the choice is a poor one but Case’s point adds a nuance to the claim that commodification is always corrupting, replacing it with the need to attend to the discourses of status and contract and the way that they are employed in a struggle over the meaning of a relationship. This struggle sometimes

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occurs because of other factors, such as the vulnerability of the elderly. The problem with neo-liberalisms is that they see no other ways of relating, thereby reinforcing the idea of market relations, viewing them as the only alternative to a reversion to feudal status. In positioning themselves as against hierarchical status relationships, they imagine themselves as progressive, while also increasing the gap between rich and poor, increasing inherited wealth and the extent to which money makes a difference as more aspects of human relations become commodified.

Privacy To apply these analyses to the example of private information, involves asking: how does the treatment of different aspects of privacy as commodities alter our relations with others? This question moves us from an immanent critique of Posner’s position on privacy, discussed above, to one that considers the ways of life that are closed down and relationships soured, if privacy is viewed as a commodity. This is in addition to Pateman’s point that contracts in which one party exchanges property in the person are basically ways of creating and organising relationships of subordination in modernity. I am asking: what happens to relationships now that personal data is viewed as the new oil and the market also cashes in on worries about the risks to privacy (Angwin and Steel 2011). While it is understandable that people will wish to be warned about potential threats, Posner’s arguments against respect for individual privacy in general leaves individuals open to potential humiliation that could bias others against them. As discussed above, Posner’s argument, that discrimination is likely to be weeded out, is weak. Shame can be unwarranted but explicable against a background of a history of subordination, in which groups view aspects of themselves in derogatory terms that may be used as a weapon against them. This is not reflected in companies, which may be treated as persons in law but have no shame. The corporate equivalent of shame is subject to a cost benefit analysis in ways that few individuals could ever mimic, even if they wanted to do so. The corporate equivalent of shame has a price tag rather than the pain associated with social humiliation. Neo-liberal economics, as described by Posner, is a technique that can give the feeling of control by training oneself to reduce and manipulate any situation, based upon a narrow view of self interest. I will discuss this phenomenology below. Ironically, from the perspective of an analysis of privacy, the need to count the ‘cost’ of any encounter (in terms of time – and time as money) lends itself to self-surveillance that has its counterpart in the workplace timesheet (and now potential workplace monitoring of keyboard and eye movement). It is also likely that any data that is produced by such self surveillance, that is extended to monitoring sleep or activity, for example, will be insecure. Such data is usually shared but ‘privacy’, to

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the extent that this can be achieved, can be purchased. Self-monitoring of one’s ‘own time’ alters how you live your life by a series of petty decisions that shape who you are. I will discuss this further in terms of work and then illustrate how workplace techniques have moved into our ‘free time’, with the use of self surveillance gadgets. In an empirical study on privacy (Nippert-Eng 2010), the participants described their struggles over access to their time both at work and home. This power struggle over time parallels the perceived need to defend private space. In this context, time itself is commodified and it is possible to think about being generous or mean with your ‘own time’. The position of gender is relevant as women are often positioned as adjunct workers – such as personal assistants – who defend their boss’ time and physical space. Some areas within a workplace can appear as private enclaves, depending upon and reinforcing status. This struggle becomes more obvious when there are ‘demarcation disputes’ over time and when job descriptions are extended to include self-monitoring within the workplace itself, by completing detailed online forms, for example. In this way, compliance monitoring is offloaded onto employees. The self monitoring techniques employed in the workplace have now spread into leisure time in order to ‘maximise the benefits’ of leisure. It is possible to expand upon the consumerism that is associated with these techniques. In the neo-liberal image of leisure time, a loss is sustained because it represents time in which someone could be earning money. Therefore, this ‘loss’ increases as the earning power of the individual increases (Skidelsky and Skidelsky 2012). Adorno (1991) argued that “free time” is defined against work. As it represents relief from work, he argued, it is to be as meaningless as possible. Adorno’s argument may now be updated with the perceived need (especially from the higher paid) to make up for time that could be spend working by increasing their efficiency at leisure activities by the use of as many gadgets as possible (critiqued by Skidelsky and Skidelsky 2012). This efficient use of leisure time can use the techniques of the workplace, including the monitoring of oneself, as described above. People who use gadgets to monitor themselves as part of leisure as well as work could be viewed as employing a technique of working upon ‘the self’. From this perspective, they represent a parody of Stoicism. One aspect of Stoicism is to learn how to behave virtuously; to prepare yourself to cope with disasters by reviewing your day and the decisions made. In contrast, leisure time can now lend itself to a more detailed review, well beyond an analysis of decisions made and involving the production of endless data. This data can include: tracking bodily exercise, food consumption and sleep patterns to assess health. There are a number of behaviours that can be monitored and compared with others in order to nudge you into being more environmentally conscious or adopting different behaviours.

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Pentland (2014) is teeming with imaginative ways of using peer pressure to improve behaviour outside the workplace as well as inside, by employing such techniques that now cross over, from work to the home. Central to these techniques is the ability to create and monitor personal data, for which there is now a market. This personal data can now be employed in big data analysis with unforeseen consequences for the individual. I want to expand upon this analysis of privacy to consider briefly the phenomenology of the ways of living produced by adopting such a view of oneself. This adoption of a “grid of intelligibility” differs from Case’s examples above, in which women have used the idea of a commercial relationship in order to maintain privacy and avoid being viewed in familial terms, which they associated with manipulation. They may have accepted this overall framework but could have just employed it as a tactic rather than as a way of life. In the Phenomenology of Oppression, Bartky (1990) discusses what benefits women may receive in negotiating within relationships of subordination. Bartky illustrates how short term rewards may undermine longer term interests. In some instances oppression may be stark and politically unstable, enforced only by violence. However, she argues that there may be compensations for some, along with double binds that reinforce and naturalise subordination. By analogy, it is worth asking: are there any attractions to thinking of yourself as an enterprise? Why would anyone think and live like this? This is a different question from an evaluation of the arguments, given that the phenomenology is irrelevant to the internal “grid of intelligibility” of market analysis itself. I do not wish to commit an ad hominem fallacy against Posner but to focus upon people outside of Chicago Law School, to try to understand how such a viewpoint could make any sense at all, here and now. For someone living in poverty, with few choices, as a result of unemployment due to neo-liberal policies of ‘accumulation as dispossession’ (see Harvey 2009), it is unlikely that they will feel (or be) ‘empowered’ by viewing themselves as an enterprise. This is despite attempts to describe them as “job seekers”, who are encouraged to view themselves in such terms (Dean 1999; 2002; Fogde 2008). Becker (Becker, Ewald, and Harcourt 2012, 31) has argued that his analysis of human capital is useful for black youths from deprived backgrounds because they can be told the figures of how likely it will be that they will be unemployed, have an unstable marriage and die early if they drop out of college. The aim is to persuade them to stay on in education but I doubt that this information would come as news to them. He occludes the pressures upon them to leave and as such omits the list of statistics relating to their chances of staying in college. They do not need Becker playing the role of a life coach – or an image of themselves as human capital – but solutions that acknowledge the economic and social reasons for their position. However, this way of thinking about yourself may give those who do have

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more choices a sense of greater control than they actually have; the satisfaction that they are – in their own terms – able to behave ‘rationally’, irrespective of the circumstances. This ‘rationality’ is a reversal of that of the Kantian person, discussed in Chapter 3, whose rationality involves treating others with respect as free and equal persons. Instead it provides an approach to others that involves viewing oneself at a distance from them in order to manipulate them. It may involve the feeling of satisfaction and fantasy of power at a time when even middle classes experience financial insecurity. At a time when the threat from outside appears too great, such a fantasy draws upon a desire for “impossible autonomy”. As discussed in Chapter 3, this is often characterised as financial and emotional autonomy. As I will explain in the final chapter, Spinoza provides a conceptual framework through which to understand this market approach. Spinoza’s position may appear to have some superficial similarities with homo economicus. For Spinoza, it is important that we are able to understand what will empower us and to act accordingly. He too stresses self-interest and rationality. However, his view of both the self and of rationality is very different from that of Posner and neo-liberals. Ultimately Spinoza’s image of selfhood takes into account that individuals will not thrive if they are in a society in which others are unable to do so. Before discussing Spinoza, for whom communication is of central importance, I will examine the philosophy of information and its very different approach to privacy and selfhood. Floridi (2006; 2007; 2011; 2013) defines humans as creative beings and as informational organisms for whom computer mediated communication promises great opportunities. These opportunities are illustrated by the creative commons, which depend upon altruism rather than commodification.

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Pentland, Alex. 2014. Social Physics: How Good Ideas Spread – the Lessons from a New Science. Melbourne/London: Scribe. Posner, Richard A. 1977. “The Right of Privacy.” Georgia. Law Review 12: 393–422. Posner, Richard A. 1978. “An Economic Theory of Privacy.” Regulation 2: 19–26. Posner, Richard A. 1981. The Economics of Justice. Cambridge, Mass: Harvard University Press. Posner, Richard A. 1984. “An Economic Theory of Privacy.” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 333–45. Cambridge: Cambridge University Press. Posner, Richard A. 1992. Economic Analysis of Law. 4th edn. Law School Casebook Series. Boston, MA: Little, Brown. Posner, Richard A. 1993. “Blackmail, Privacy, and Freedom of Contract.” University of Pennsylvania Law Review 141 (5): 1817–47. doi:10.2307/3312575. Posner, Richard A. 2013. “Privacy Is Overrated.” New York Daily News, 28 April. www.nydailynews.com/opinion/privacy-overrated-article-1.1328656. Radin, Margaret Jane. 1996. Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things. Harvard University Press. Riboud, Michelle, and F. Hernandez Iglesias. 1977. “La Théorie Du Capital Humain.” In L’Economique Retrouvée: Vieilles Critiques et Nouvelles Analyses, edited by Florin Aftalion and Jean-Jacques Rosa. Paris: Economica. Sandel, Michael. 2012. What Money Can’t Buy: The Moral Limits of Markets. London: Penguin. Scheppele, Kim Lane. 1988. Legal Secrets: Equality and Efficiency in the Common Law. Chicago, IL: University of Chicago Press. Scott, Dayna Nadine. 2012. “Pollution and the Body Boundary: Exploring Scale, Gender and Remedy.” In Feminist Perspectives on Tort Law, edited by Janice Richardson and Erika Rackley, 55–79. Oxford: Routledge. Skidelsky, Edward, and Robert Skidelsky. 2012. How Much Is Enough?: Money and the Good Life. London: Allen Lane. Smith, Adam. 2002. Adam Smith: The Theory of Moral Sentiments. Edited by Knud Haakonssen. Cambridge: Cambridge University Press. Thomson, Judith Jarvis. 1975. “The Right to Privacy.” Philosophy & Public Affairs 4 (4): 295–314. Thomson, Judith Jarvis. 1984. “The Right to Privacy.” In Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand David Schoeman, 272–89. Cambridge: Cambridge University Press. Titmuss, Richard. 1971. “The Gift of Blood.” Society 35 (2): 88–97. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220. Wilde, Oscar. 2005. The Picture of Dorian Gray. Edited by Joseph Bristow. Vol. iii. The Complete Works of Oscar Wilde. Oxford/New York: Oxford University Press. Williams, Patricia J. 1991. The Alchemy of Race and Rights. Cambridge, Mass: Harvard University Press. Willis, Robert J. 1973. “A New Approach to the Economic Theory of Fertility Behavior.” Journal of Political Economy 81 (2): S14–64.

Chapter 6

Philosophy of information and privacy Luciano Floridi

Introduction A breach of one’s privacy is a form of aggression towards one’s identity. (Floridi 2006a, 39) In this chapter I will examine the work of Luciano Floridi, who has made a major contribution to the philosophy of information in many areas. I will concentrate on his theoretical stance on privacy. His insights into privacy will be situated within the wider context of his work, starting with a very brief overview of his ethics. As with the definitions about privacy already encountered, Floridi’s analysis is dependent upon a particular conception of self and ontology. His focus upon information makes his contribution original, in an area that is now well trodden. After summarising Floridi’s ethics, I will explore his work on privacy and selfhood by unpacking the meaning of a particular quotation of his on privacy. I will finish by discussing Floridi’s conception of self, starting with his conjecture on the evolution of information and finishing by comparing Floridi’s homo poesies with Arendt’s homo faber, along with Arendt’ public/private divide.

Floridi’s ethics: background sketch In his extensive work on ethics, Floridi (2001; 2005; 2013) has argued that ethical implications flow from the emergence of information and communication technologies (ICTs) that allows (some) people to alter their (now digital) environment with greater ease than previously. This ability results in a duty to pre-empt ethical problems that may arise as a result of the way the environment is designed. In contrast with neo-liberal approaches to privacy discussed in the last chapter, Floridi recognises ethical duties. He also realises that such duties may not be ones that can be borne by the individual alone. Floridi also differentiates his approach from traditional ethical models. He argues that an ethics that focuses upon the individual – such as virtue

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ethics, which is characterised by individual striving to be a better person by working upon him or herself, or a deontological approach of individual duty – is inadequate in contemporary Western societies. This is because contemporary societies produce complex social problems, such as unemployment or environmental degradation, which cannot be solved by an individual alone. As a result of our greater ability to communicate, we are more aware of global problems but feel inadequate to the moral task of dealing with them. Individuals are also often wrongly positioned as responsible both for their own misfortune and their failure to overcome it. Floridi differentiates himself from Kantian ethics in his stress upon the need to consider the effects of activities upon the person or entity that is the recipient of any action, that is, the patient rather than the agent of an action. This lies in contrast with Kantian ethics which is concerned with duty and the good will of the agent. Floridi’s position can also be distinguished from utilitarianism, in that his position entails respect for intrinsic worth of informational entities rather than a concern merely with the consequences of a choice between actions, when we chose whichever action maximises the welfare of the greater number. From this perspective, Floridi is therefore closer to Kant than to utilitarianism but extends Kant’s argument that there should be respect for personhood. He argues that this respect should be extended – not only to the biosphere, as in environmental ethics – but, by analogy, to the infosphere. In other words, he argues that the environmental movement’s interest in the well being of the biosphere for its own sake, should be extended to “the infosphere”. By infosphere, he refers to all informational entities, to be explained in detail below. Just as we have moral duties to try to prevent the degradation of the environment, Floridi stresses that a loss occurs if information is subject to entropy, that is, if it is destroyed or degraded. While this ethics is in the background, it is not necessary to detail its implications in order to explain Floridi’s views on privacy. It is enough to be aware that he views all informational entities, including human beings, viewed as informational entities rather than as persons, as raising ethical issues. We should consider how they are treated as the patients of our actions. I will explain Floridi’s conceptual framework and draw out privacy issues as I proceed.

Floridi’s conception of privacy In this section I will explain and examine a complex and evocative quotation about privacy: In the same way as the digital revolution is best understood as a fundamental re-ontologization of the infosphere, informational technology requires an equally radical reinterpretation, one that takes into

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account the essentially informational nature of human beings and of their operations as social agents. Such reinterpretation is achieved by considering each individual as constituted by his or her information, and hence by understanding a breach of one’s informational privacy as a form of aggression towards one’s personal identity. (Floridi 2006a, 39; emphasis added) This quotation needs to be explained in order to understand the neologisms and context in which the claim is supported. Unpacking it provides my entry point into an examination of Floridi’s conception of privacy that draws upon his broader ideas regarding the meaning of information and conception of self in relation to it. Analysing its meaning – which involves considering these definitions to explore particular phrases – will structure this part of the chapter. I will break the different phrases into sub-headings from the quotation, starting with “re-ontologizing the infosphere” and then explaining “informational nature of human beings”.

“Re-ontologizing the infosphere”: Floridi, Foucault and architecture The infosphere is one of Floridi’s neologisms and is a central concept in his work. It is based upon – and extends – the term ‘biosphere’ (Floridi 2006a, 37). Floridi defines “infosphere” in the following way: [The infosphere] denotes the whole informational environment constituted by all informational entities (thus including informational agents as well), their properties, interactions, processes and mutual relations. It is an environment comparable to but different from cyberspace (which is only one of its subregions, as it were), since it includes also off-line and analogue spaces of information. (Floridi 2006a, 37) In other words, the “infosphere” refers to the whole of the environment (by analogy with the biosphere) – both offline and online – viewed in informational terms. In an interview, Floridi (2008a) distinguishes between the infosphere, as the environment in which our information is transferred, and the Infosphere (with a capital I). The reference to the “Infosphere” involves a bolder ontological claim. The Infosphere refers to everything that exists; the whole of Being. The claim is that, just as it is possible for materialists to argue that everything can be analysed in terms of its matter, Floridi argues that everything that exists can also be understood in terms of its informational properties, that is, as informational entities. Floridi is making an ontological claim about what exists and not an epistemological claim that we can or should organise our perceptions of the world to view

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it in terms of information. In other words, he is talking about the nature of existence itself as the Infosphere, not the way in which we construct our perceptions of it. The above claim that the infosphere,1 has been ‘re-ontologized’ as a result of the digital revolution refers to the ways that digital technology has fundamentally altered the nature of our informational environment itself. As Floridi argues, Information and Communication Technologies (ICTs) are not merely additional tools that have the effect of speeding up communication. It has always been possible to alter the infosphere offline but the internet offers greater opportunities to change the way in which we communicate. The neologism “re-ontologizing” initially appears contradictory because it raises the possibility of something continuing to exist as an entity while also changing its essence, thereby becoming something else. There are models of selfhood (from Spinoza and from Battersby, for example, discussed in Chapter 3) in which there is no underlying fixed essence as such. However, Floridi is using the phrase “ontologizing the infosphere” differently, in order to emphasise the radical change in the way that we communicate as a result of ICTs. Floridi explains why he employed the term “re-ontologizing” by stating that he is referring to: a very radical form of re-engineering, one that not only designs, constructs, or structures a system (e.g. a company, a machine, or some artefact) anew but one that also fundamentally transforms its intrinsic nature, that is, its ontology or existence. In this sense, for example, nanotechnologies and biotechnologies are not merely re-engineering but actually re--ontologizing our world. (Floridi 2013, 6) To demonstrate what he means by “re-ontologizing”, in terms of such radical change, Floridi (2006b) offers an example of offline changes in the infosphere by envisaging a shared student house in which the walls of the house suddenly become transparent. Given the greater flow of information there is a corresponding reduction in privacy. Privacy is therefore viewed as in inverse relation to the ability of information to flow. As this example highlights, it is necessary to consider the capacities of the agents and the interactions that the environment affords them (and not restrict analysis to the environment itself). This is neatly illustrated by his drawing attention to the fact that, in this example of transparent walls, the student’s privacy would be unaffected if the students were blind. The students could also

1

I am concerned with privacy and so interested in our informational environment (“infosphere”) so will use the small ‘i’, while recognising that this is part of the whole of existence (Infosphere, when viewed in informational terms).

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alter the environment, in response to the change, such as strategically moving the furniture to increase their privacy. The extent of the radical change that ICTs made to our informational environment is stressed by also considering that the students are capable of mind reading in this thought experiment (Floridi 2013, chap. 12). Could there be an ontological change in the environment that is not perceived by the students? This raises a question about the relationship between the environment and informational organisms; that this is an ontology and not an epistemology. The concept of “information flow” seems initially to lead to an assumption that there must exist agents for whom changes in the environment can serve as information at all. In Chapter 4 of The Philosophy of Information, Floridi defines semantic information as “well-formed, meaningful and truthful data” (2011b, 80–108). It is more meaningful than mere data that needs analysis in order to become meaningful. He argues that information as true semantic content is a necessary condition for knowledge; it allows us to build information into a web of knowledge with explanations and accounts that make sense of the available information.2 Again, this raises the question of the role of agents for whom the infosphere can be viewed as providing data and information. In a later section, “Floridi’s conception of self”, I will turn to Floridi’s story of evolution to show how his ontology is envisaged in a way that is not anthropomorphic. While it would detract from my focus upon privacy to go into greater detail, I will briefly explain this story. In Chapter 15 of The Philosophy of Information, Floridi (2011a, 339–371) describes his ontological position as “informational structural realism”, which has been summarised in the following way: information is a separate ontological category, different from both the physical and the mental (Dodig Crnkovic and Hofkirchner 2011).3 Information is therefore envisaged as existing independent of us, as an attribute of what exists. What makes the change in our informational environment as a result of ICTs so radical as to be viewed as an ontological change? To expand upon

2

3

Other mathematical definitions of information transmission, such as that by Shannon (1948; Shannon and Weaver 1949), do not require that the data is well–formed or truthful. Floridi supports his argument but this takes me too far from my focus upon explaining the quotation in order to consider Floridi on privacy. Floridi argues that: “Structural objects (clusters of data as relational entities) work epistemologically like constraining affordances: they allow or invite certain constructs (they are affordances for the information system that elaborates them) and resist or impede some others (they are constraints for the same system), depending on the interaction with, and the nature of, the information system that processes them.” (Floridi 2008b, 249). This strikes me as a position that can be expressed in Spinozist terms: that Information is an attribute of the whole of existence (substance), albeit that there would have to be amendments to this framework to make it coherent with the attribute of Thought.

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this point and to illustrate our greater ability to alter the environment today, Floridi contrasts an online environment with those earlier environments that merely ‘enhance’ our abilities, such as a vacuum cleaner that extends a limb in some way, and those that ‘augment’ us, such as a washing machine, which has its own environment with which we interface when we put in the washing and alter the controls (Floridi 2006b, 137). The difference between these examples and the online environments is that computers offer a “gateway” into which we appear to enter (although, for reasons to be discussed below, it may be better to think that we often draw material into our own domain through this “gateway”). For Floridi, ICTs mark a system change because of the different interactions it facilitates. In an earlier work on ethics, Floridi and Saunders (2005; see also Floridi 2011c; Floridi 2013) emphasise “poiesis”, the creativity that can be applied to changing online environments. Floridi’s examples include: the modelling of interfaces, co-operation over open-sourcing software, digital arts, the creation of home pages and virtual communities (Floridi and Sanders 2005, sec. 4). Floridi views these activities as ethical so it is worth pausing to consider how they could be threatened. In the last chapter I discussed a number of examples in which there is evidence that treating voluntary acts of good will as commercial activities, risks destroying them by changing the nature of the relationships involved. People never like to feel that their voluntary or good will efforts are being exploited. Where this is not the case then they have a greater sense of community and are less likely to count the time spent on such activity as time spent. Associated with the “re-ontologizing the infosphere”, Floridi argues that our ability to change our environment has ethical implications, which apply to both our offline and online environment. (What is classed as online and offline are likely to become more blurred with future technological developments and the “internet of things”). I am generally concerned with the extent to which it is possible to characterise a claim as “ethical” in a way that detracts from the fact that it is actually political.4 This usually works so as to individualise a problem; to pose it as individual duty rather than a political issue about power relations. Fortunately, Floridi’s ethics emphasises the need to consider ethical issues in terms that go beyond individual duty, discussed above. For the rest of this section, I will suggest examples of ways in which our environment is political that fit with Floridi’s aim to point out the significance of environmental change (that is facilitated by ICTs). I will demonstrate that, while raising ethical concerns, these situations that involve architectural change are importantly political. The first examples are from offline but with online implications. I draw out the privacy implications as I go along.

4

Pateman (2002) makes this claim against Rawls.

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First, concerted action by disabled persons has had an impact in highlighting how access to buildings is of political significance. Without such a movement or shared experiences, most of us would be unaware of the way that a familiar environment of public buildings and workplaces prevented others from taking part in everyday activities. It required a gestalt switch to recognise the injustice that was actually built into our environment. Once this is seen from another’s position then their justifiable anger and claim for equality of access to buildings becomes obvious and understandable. This change in the environment, for which they fought, allowed disabled persons to access work and leisure from which they were formerly blocked. There are also implications for privacy and for autonomy in their claim. The environment can be altered to allow greater independence rather than the need for carers who know one’s every move. Note this does have ethical implications in that a better environment can increase information, happiness or fulfil a duty to treat disabled persons with respect but – as they have themselves shown – it is a political issue. Disabled persons were denying a stereotype that disempowered them and was enacted within the designs of the architecture itself. An analogous problem arises online if any groups cannot gain access to ICTs, as discussed in terms of the digital divide. A further example, of many, of the political implications of architecture, has dominated an area of sociology known as “surveillance studies”: the Panopticon.5 While this has now become very well known, it is often ripped out of context. The Foucauldian analysis of governmental rationality and selfhood is useful to compare with Floridi’s emphasis upon the possibility for change offered by online environments. I will very briefly outline Foucault’s (1977) position. In Bentham’s diagram of a Panopticon, there is a centre that is dark – where the guard/observer may sit, hidden from view – and corridors that radiate out. At the end of these corridors are back lit cells for prisoners. This was designed to allow prisoners to be watched but to be unable to see either their observer or other prisoners. Bentham’s hope was that, as the prisoners never knew if they were being watched, they would police themselves and get into the habit of acting as if they were constantly under surveillance. Foucault produces a theoretical intervention. The diagram of the prison exists even though the prison was not built. Instead, Foucault argues, it served as a “program” to produce a certain type of society. Foucault employs the term “program” to distinguish his methodological analysis from that of Weber. The program of the Panopticon is not an “ideal form” of a type of society. Like the computer programs discussed by Floridi, the Panopticon is a program, an algorithm (albeit without such predictable

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The major journal in this field is: Surveillance & Society.

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results) for producing a certain way of life that did materialise (Foucault 1996a). Foucault also describes the Panopticon as a “technique of power”. Another example of a technique of power is that of the factory, school or prison bell that signals when those in an institution should move to another place or undertake another activity, which inculcates habits and a way of life. He critically traces the history of these techniques of power and the ways in which they regulate lives in different contexts. As such, the design of buildings can allow them to facilitate the monitoring of prisoners, workers, students and patients – now aided by the prevalence of CCTV cameras and other technology by which fine details can be subject to scrutiny. Today, the data generated is greater than that which could be produced by guards watching prisoners in numerous Panopticons. Contemporary data analysis reaches inside the body rather than simply watching it. This data potentially includes records of eye movements, key strokes and all bodily reactions. Pentland’s (2014) workplace experiments demonstrate the extent of data that can be produced by employing tracking devices, the possibility of recording conversations as well as access to electronic information. As discussed in Chapter 3, Foucauldian techniques of power can be minor and varied, such as the humble consent form that reinforces the idea that we really are deciding what to do with our privacy, discussed by Hull (2014). Similarly, there are various gadgets that allow self monitoring, discussed in the last chapter. These form part of a governmental rationality in which governance is not conceived as governing top-down though legislation. Instead, it works by “conducting the conduct” of people who are free to act otherwise, thereby shaping their behaviour. (In doing so, I would add that associated ideas act upon our conception of selves, just as daily monitoring of the body changes bodies. As I will discuss in the next chapter, these should not be envisaged as separate processes.) Floridi’s focus upon the informational environment (the “reontologizing of the infosphere”) turns our attention from the politics and ethics of offline architecture to the design of online architecture: that online environments offer greater flexibility for some of ‘us’ to shape (and not just be shaped by) our environment than afforded by earlier technologies. Online environments, such as Facebook, can also produce different ways of life. Like the Panopticon, they can be employed as surveillance mechanisms, thereby raising Foucault’s question: “How much does it cost the subject to be able to tell the truth about itself?” (Foucault 1996b, 245). Foucault’s interest is in the processes – including those in relation to architecture – that produce who we are as subjects. Hence, Foucault’s emphasis is upon the extent to which “who we are” is always something that emerges through operations of power. It is an anti-humanist position in that “who we are” comes into being (in contrast with the idea that it simply demonstrates already existing qualities of the individual)

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through these power relations.6 Floridi has a different conception of self that stresses both human creativity and the idea that we are informational organisms, to be discussed further below in the next section.

“The informational nature of human beings” To understand Floridi’s position on privacy, it is necessary to understand his characterisation of humanity that is summed up in the quotation above as “the informational nature of human beings”. So far, I have mentioned his discussion of humanity as creative, as homo poieticus, and will return to this below. However, there is a more basic description that he applies to humanity: that of “inforgs”. His definition of us as informational organisms (a term he shortens to “inforgs”) prioritises our ability to communicate. When Floridi describes humans as “inforgs” it initially appears that he is singling out humanity on similar lines to those definition of humans as “rational animals”, (Aristotle 2000) or “political animals” (Aristotle 1996), or “symbolic animals” (Cassirer 1972, 26). However, in the Fourth Revolution, Floridi (2014) argues that human beings have been displaced from their dominant position. Just as earlier revolutions removed us from the centre of the universe (Copernicus), from the idea of being separate from animals (Darwin) and from the claim that we were able to control our own thoughts, with knowledge of our own minds through introspection (Freud or contemporary neuroscience), there has been a fourth revolution. The name attached to the Fourth Revolution is that of Alan Turing, and the shift is away from the idea of human beings as having the unique ability to reason logically, now that computers can now perform this task (Turing 1950). In Floridi’s terms “we are no longer undisputed masters of the infosphere” (Floridi 2014, 93). In the above discussion on the meaning of “re-ontologizing the infosphere” the infosphere was straightforwardly envisaged as the environment within which information is transferred. The definition of “inforg” also includes a reference to the “informational entities”, including “informational agents”. By informational entities, artificial intelligence is included, as well as human beings. I will not discuss artificial intelligences as informational agents because their relevance to privacy is only with regard to their abilities and interactions that affect the flow of information. So, I will focus upon Floridi’s analysis of human beings as inforgs. In a number of papers and books, aside from his work on privacy but relevant to it, Floridi has argued that we should not be viewed as owning our information, as we would own a car. Instead, in a phrase I have used earlier,

6

“There is a history of the subject as there is a history of reason. One cannot expect this history of reason to evolve from the initial founding act of a rationalistic subject” (Foucault 1996b, 238).

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he argues that reference to ‘my’ information is used in a similar way to my relationship to ‘my’ body or ‘my’ feelings. In other words, given that we are defined as informational organisms, ‘my’ information is constitutive of “who I am” (Floridi 2006c, 112). This distinguishes Floridi’s position from neo-liberals, discussed in the last chapter, who view privacy in commodified terms. As Floridi points out, his view of our information as intimately related to “who we are”, fits with some of Warren and Brandeis’ arguments, discussed in Chapter 2. Recall that Warren and Brandeis argue that the protection of privacy is not the protection of a property right but more of a “general right to the immunity of the person, the right to one’s personality” (Warren and Brandeis 1890, 33). When he cites Warren and Brandeis favourably, Floridi (2013, 233–244) appears to be sympathetic to arguments based upon Kant that ground this part of their argument; i.e. that an invasion of privacy is morally wrong if it fails to treat individuals as persons, as an end in themselves, rather than a means to an end. However, Floridi’s argument is not based upon the Kantian view of the equal moral worth of personhood, but upon a different (equally universal) feature of ourselves: our ‘informational nature’ that should be respected. As mentioned in the background sketch of Floridi’s ethics above, just as some environmentalists have argued that non-human parts of the environment have moral worth, so Floridi argues that the same is true of informational entities. For Floridi, this “moral worth” of informational entities, discussed in the outline of his ethics, cannot be fully Kantian. It may not override human well being but must be recognised and (potentially) taken into account within ethical decisions. Whether or not this ethics is accepted, Floridi’s view of selfhood – as intimately related to our information – provides him with a strong argument in support of privacy. Floridi claims that to take information about someone from one place to another should be considered by analogy with kidnapping rather than theft. This move relies upon the “informational nature of selfhood” such that some information is so personal as to be part of (or constitutive of) “who we are”. So, the reference to kidnapping conveys the idea that such breaches of privacy are more akin to offences against the person than theft. The image of abduction does more work as I will explain in more detail below. It also conveys the point that the metaphor of breach of privacy as “intrusion into someone’s personal space” may be the wrong metaphor to use; that a better way of conceptualising the “loss” of personal information is that it has been taken to another space. Given the nature of information, it may be copied and made available elsewhere and yet still be accessible to the victim. The harm derives, not from the possibility that the victim cannot use the information, but from the fact that the personal information has been taken out of context and may be seen by others; that it may be employed in unforeseen and exploitative ways, especially when it has been linked with additional personal

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information. The work of companies who data-mine and sell personal information about prospective employees to potential employers and others provides an illustration of this type of exploitation. This has also resulted in one company selling personal information to identity thieves, resulting in considerable loss for individuals (Nissenbaum 2010, 47). Floridi is not talking about financial risks but attacks upon identity that result from private information being made public. If it is accepted that some personal information is constitutive of “who we are” then, he suggests, there may come a time when such actions are illegal. To consider Floridi’s argument further, within my unpacking of the phrase “the informational nature of human beings”, I will compare his analysis with Andy Clark’s work on cognition. I will then explain the background concepts that support the useful argument that the taking of personal information should be viewed as analogous to abduction. After this section, I will explain the metaphor in greater detail.

Extended cognition It is possible to expand upon Floridi’s conception of our being “informational selves” by considering how the philosophy of cognition has reached similar views about the theft of a diary. As a philosopher of cognition, Andy Clark argues that our thinking “ain’t all in the head” (Clark 1997). In other words, he argues that we use the environment as much as possible in order to help us to think. Given the role of the environment in our cognition, Clark argues that it would be wrong to envisage cognition as only taking place within the brain itself.7 So, for Clark, it is not possible to draw a boundary between our thoughts and the environment on which we rely in order to think. This is clear from Clark’s early work on cognition (Clark and Chalmers 1998; Clark 1999a; Clark and Thornton 1997). Clark claims that it is natural for us to draw upon such “scaffolding” from the environment. He provides an interesting analogy from work that arose as a result of experiments with robot tuna (Clark 1999a; Clark 1999b). Tuna can swim faster than would be predicted based upon their bodies and existing currents. They are able to increase their abilities by creating greater currents upon which they then rely. Analogously, persons with dementia extend their memories by “offloading” their memory capacity onto the environment with the use of diaries, notes and online prompts. This works for everyone as we reach “quick and dirty” solutions by manipulating our environment, using pen and paper rather than carrying long mathematical calculations in our memories for example. It follows that our

7

“The idea, rather, is that in the case of some mental processes but not all, part of that mental process – but never all – is made up of factors that occur outside the brain of the subject” (Rowlands 2010, 13; emphasis in original).

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ability to think is greatly improved when the environment itself becomes smart, as Clark puts it “Our brains make the world smart so that we can be dumb in peace” (Clark 1997, 180). There have been debates as to whether the external environment is being used as mere scaffolding to aid our thought processes or whether it is to be viewed as integrated within cognition itself (Rowlands 2010).8 Our environment may be essential to our cognition in two different ways: either it just acts as something that is necessary to help us think (“coupling”) or it is actually part of the cognitive process (“constitutive” of cognition). The debate around what Rowlands (2010) refers to as the “the coupling-constitution fallacy”9 is far from decided. However, if a diary in this example is necessary for cognition, irrespective of whether it is classed as part of cognition, then it is enough for my purposes: to consider Floridi’s characterisation of the removal of personal information as akin to kidnap by comparing it with the reference to the theft of a diary in this extended cognition literature. To explain what is at stake involves explaining some of the extended mind literature, which raises similar questions to those of Floridi. As a result of his theory of “extended mind”, Clark expresses some of the intimacy of our relationship to the informational environment (“infosphere”) that is no longer considered in terms of a bounded self that interacts with a separate environment – having important applications for privacy and resonating with Nedelsky’s image of selfhood, discussed in Chapter 3 (Richardson 2004). Floridi’s analyses of the relationship between our selves and our environment in relation to privacy will be discussed below. Irrespective of whether Clark’s view of extended cognition is accepted, it can be seen that a “smart environment” can facilitate our ability to problem solve, if only because of the additional information that we then have to work on. It also highlights the fact that some environments facilitate such thought and others are “dumb”. By this I do not simply mean that they lack contemporary technology but that they can be structured in ways that undermine our ability to think, irrespective of the technology employed. Given that this concern is raised in the context of technology, the worry about dumb environments may appear to be akin to Plato’s (1997a) argument that the invention of writing would erode memory or

8

Rowlands quotes Adams and Aizawa: This is the most common mistake that extended mind theorists make. The fallacious pattern is to draw attention to cases, real or imagined, in which some object or process is coupled in some fashion to some cognitive agent. From this, they slide to the conclusion that the object or process constitutes part of the agent’s cognitive apparatus or cognitive processing. (Rowlands 2010, 91; quoting Adams and Aizawa 2001, 408; emphasis added). This mistake, Rowlands labels the ‘coupling–constitution fallacy’

9

Ibid.

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Walter Benjamin’s claim that we are no longer able to appreciate music because of a weakened attention span (Benjamin 2008). My concern is different and associated with that of Floridi’s interest in the architecture of the environment, discussed above. Clark has emphasised the ability of smart environments to facilitate our cognition. However, there are examples of “smart technology” undermining cognitive ability. One recent move in workplaces has been to shift the effort of monitoring workers onto the worker him or herself, which becomes increasingly more complex to avoid workers gaming the system. This results in the perverse effects of the “audit society” (Power 1997). Individuals are compelled by a “dumb environment”, which may well include ICTs, to alter their work to ensure they can tick boxes rather than improve the quality of what they are doing. Alan Fox describes the problem of such an approach in areas of high trust. Today monitoring has been recognised as having serious privacy implications (Fox 1991) as well as impacting upon individual’s cognitive abilities. Floridi (2014) dismisses Clark’s (2003) discussion of “natural born cyborgs” as akin to the idea of being augmented, a point that fits with the image that we have of “cyborgs”, with strengthened limbs, for example. However, Clark also raises a different point in his earlier work on cognition that brings his position closer to that of Floridi. Both question how to understand what happens when our information is collected and re-used, without our permission. Recall that when “who we are” includes (or is ‘constituted by’ or even ‘determined by’ Floridi 2006b) our information then, Floridi argues, this capture of our information is more akin to kidnap than to theft. This comment resembles Daniel Dennett’s (Clark 1999a, 14) claim about the implications of Clark’s work: that to steal the diary of someone suffering from Alzheimer’s disease is more akin to an offence against the person than it is to theft. It makes little difference if the diary is envisaged as being online rather than offline. What matters is that it had become a necessary part of that person’s ability to think, either as mere “coupling” or as integrated into the cognitive process itself. The point illustrates the extent to which both philosophers view cognition (and selfhood) as something that is not simply in a bodily container but as part of the environment, an environment that includes others. For a discussion of the relationship between Clark and Battersby’s work, discussed in Chapter 3, see Richardson (2004). I will now move from unpacking Floridi’s quotation and the section on the “informational nature of human beings” to look at Floridi’s image of breaches of privacy as kidnapping in more detail.

Envisaging personal data collection: “kidnapping not intrusion” Dennett’s comment highlights the impact of losing a diary, which, when viewed from the perspective of external cognition, can be assessed as being

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more akin to losing a part of the victim’s memory (and hence thought processes). Dennett’s argument captures the way that – if this is theft carried out deliberately to affect a person’s cognition – it is a more serious crime, an offence against the person rather than property. I would like to extend Dennett’s comment in order to think about privacy and envisage a situation in which the contents of the stolen diary are made public. If, as Floridi maintains, we are informational beings, then removing our information from one place to another is better described in terms of kidnap rather than theft because it affects, not just our cognition, but also “who we are” and our conception of ourselves. This depends upon the type of information, of course, and the way it is viewed by the person concerned. If the example of the theft and publicity of a diary is replaced by information that is not experienced as private – such as name, rank and number (as employed in wartime) (Floridi 2006b, 197) – then Floridi envisages this information as more like dead hair or finger nails than something that is central to “who we are”. As discussed, the kidnapping analogy is useful because it indicates that the theft of personal information is an offence against the person, given that private information is part of “who we are”. In addition, the idea of kidnap explains how it is not necessary to envisage the removal of private information in terms of an invasion of a private space because it is possible to be kidnapped from public as well as private places. What is harmful is the capture of data that is moved and employed out of context.10 There are also more complex reasons for Floridi’s use of the idea that the removal of personal information is to be characterised as kidnap, which depends upon his analysis of telepresence. It is worth quoting in full the current definition of this curious, yet now common, experience. Telepresence is defined by the International Society for Presence Research in the following terms, (quoted in full by Floridi 2013, 37): [1] Presence (a shortened version of the term ‘telepresence’) is a psychological state or subjective perception in which even though part or all of an individual’s current experience is generated by and/or

10

It should be noted that there has been movement towards a recognition of privacy in public streets, in any event. The European Court of Human Rights has already started to recognise that action on a public street or information that is confided in a few people should not be a reason to assume that it necessarily loses its quality of privacy. It may be that someone does not expect that action on a quiet street at night will be publicised to potentially billions of people online (Peck v UK [2003] 36 EHRR 41). Similarly, in Australia the court has refused the traditional claim that sharing information with some close friends and family may prevent a privacy claim (Jane Doe v ABC Corporation and Ors [2007] VCC 281). This position also recognises that confidential discussions with some people may be required as part of freedom of association, for example trade union plans regarding negotiations.

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filtered through human-made technology, part or all of the individual’s perception fails to accurately acknowledge the role of the technology in the experience. Except in the most extreme cases, the individual can indicate correctly that s/he is using the technology, but “at some level” and “to some degree” her/his perceptions overlook that knowledge and objects, events, entities, and environments are perceived as if the technology was not involved in the experience. Experience is defined as a person’s observation of and/or interaction with objects, entities, and/or events in her/his environment; perception, the result of perceiving, as defined as meaningful interpretation of experience. (International Society for Presence Research 2000) For example, it is possible to feel yourself in the same room with the person with whom you are Skyping, without being able to interact physically with anything in that environment. It is possible to “suspend disbelief” and feel as if you are really somewhere else. Floridi argues that the above description of telepresence from the International Society for Presence Research associates the experience with “epistemological failure”; that we mistake being in a place where we are not actually present. However, this does not appear to capture the experience. Floridi sharpens the analysis by substituting a definition of telepresence in terms of successful observation. Someone is telepresent (or absent) for a given observer “at a given level of abstraction”. Levels of abstraction (LoA) is a central idea for Floridi, derived from computer science, in which someone can work on one part of a program while ignoring other parts on which it builds. Very (too) crudely, the idea involves focusing upon a specific perspective and leaving out others. It is enough for the purposes of linking this work to conceptions of privacy to convey the idea through Floridi’s examples: Through LoA, the observer accesses the environment, so a LoA could be, for example, the five senses unaided, a microscope, a CCTV camera, or a Geiger counter”. (Floridi 2013, 41) As I will explain, Floridi’s view of telepresence marks a switch from a definition focused upon the phenomenology of the human subject to that of the observer of that subject. The subject is now only positioned as an object of detection and his or her psychological appreciation of what has occurred becomes irrelevant. Initially, this seems an odd move when it is a phenomenology of the subject that is under investigation, irrespective of the problems of a model of “epistemological failure”. However, in terms of privacy (my concern) this switch is useful, as it provides a basis for thinking about the idea of personal information being abducted. It also has the

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effect of shifting from a model that is concerned with epistemology to one of ontology. In doing so, Floridi’s position is consistent with that of Mantovani and Riva (2001) who argue that the meaning of presence depends on the concept that we have of reality; that different ontological positions generate different definitions of presence, telepresence and virtual reality (Mantovani and Riva 2001, 541; Floridi 2013, 42). This position allows Floridi to go beyond a phenomenology and to distinguish between passive and active telepresence. Any object that is detected – for example by a security system – can be either simply a “static property bearer” (detected by its properties such as its movement or its heat, for example) or a “dynamic source of action/interaction or change” or both (Floridi 2013, 42). Someone who abducts my information is not moving into my space but is extending their “local space” to include mine, just as if they were using a telescope or knocked down a wall. I may not even know that this has occurred and so merely appear as a “static property bearer” in their local space. To spell out this idea further: the position of someone who takes another’s information into their own domain (by expanding their own domain) can be contrasted with the position of someone who can be viewed as moving into the other’s domain in order to interact within the other’s space. To illustrate, Floridi contrasts those who simply watch images of the Mars rover (brought into their domain, by technology akin to the use of a telescope) and those who manipulate the rover from Earth, who are envisaged as “moving into the Mars domain” and interacting with the Mars environment itself. The insight that Floridi has regarding telepresence challenges the usual metaphors of privacy as akin to trespass. The usual metaphor makes it difficult to envisage the problem of data mining our public information. Instead, Floridi draws upon his analysis of telepresence to argue that such data mining should be conceptualised as the removal of information from our own territory to that of another. Hence, the metaphor of kidnap is more appropriate than that of trespass. While it is not as traumatic as actual kidnap, the metaphor is useful in that it conveys the victim’s concern with personal information, as discussed regarding the diary above. Floridi’s analysis of privacy depends upon the extent to which some part of our information is actually a part of our selves.11 I will explore his view of selfhood further, below.

11

It is of interest that Floridi encounters similar questions as those working in the area of extended cognition with respect to what Rowlands (2010) evocatively terms “cognitive bloat”, that is: at what point does the extension of the self into the world stop? This supports my view that these areas are connected. Floridi’s answer is to separate personal from other information, discussed above.

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Floridi’s conception of self To draw out more on Floridi’s conceptions of self, on which his view of privacy is based, I will finish this chapter by considering first his “evolutionary” response to Kant’s transcendental self. Second, I will consider his conception of humans as homo poiesis by exploring this idea in the context of Hannah Arendt’s public/private divide. Floridi (2011d) offers a way of explaining a question which has a long philosophical tradition: “What keeps the self together as a whole and coherent unity?” Floridi (2011d, 549). Kant provides a famous answer (addressing, an earlier version of this question, posed by Hume: what holds together the ‘bundle of sensations’ that we experience). In reply to Hume, Kant postulates the transcendental self. As discussed in Chapter 3, this is a logical construct. Kant asks: what must logically exist in order to for us to do the job of organising our perception of objects in space and time. The “transcendental self” is the name Kant gives to that part of the self that must exist to perform this work. There have been feminist concerns regarding the way that this analysis relies upon a split between the transcendental self and transcendental object, with matter positioned within the framework as passive and inert in ways that block the conceptualisation of birth; of one body that can become two (Battersby 1998). It is also argued that Kant continues a tradition in which matter is not viewed as active and self-forming; in which women are associated with passive matter that is imprinted upon by form, as discussed in Plato’s (1997b) Timaeus. In contrast, Floridi aims to explain the same question in informational terms in a way that does not produce the same sort of view of matter as passive. It is sketched here in order to explain more fully the meaning of “our informational nature” and his view of self. It is speculative but of interest because such a conception of self explains the central importance of personal information and hence of privacy. Floridi (2011d) starts explaining his model by envisaging the world without life in which there is nothing to send or receive information.12 There is only data, by which Floridi refers to the possibility of some difference within the universe, for example alterations in the sun’s rays or the magnetic field of the earth (2009, 18). The development of living things starts with matter, which is envisaged as self-organising. Physical membranes are able to encapsulate and detach parts of the environment into biochemical structures (Floridi 2013, 557–558). These can then become more complex organisms. Employing the same mechanism to consider the way in which selves can exist, Floridi suggests that:

12

Floridi’s model can be usefully compared with that of Dennett (1992, 174–175).

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Selves emerge as the last step in a process of detachment from reality that begins with a corporeal membrane encapsulating an organism, proceeds through a cognitive membrane encapsulating the intelligent animal, and concludes with a consciousness membrane encapsulating a mental self or simply a mind. (Floridi 2013, 558) It is envisaged that at each stage in this evolution there is a greater distance between the entity and its environment. Each membrane is viewed as a defence of the structural integrity of what it contains. So, he starts with the physical membrane that produces simple organisms, the ‘corporeal membrane’, and then considers the move from pre-cognitive to postcognitive systems as occurring when data become decodable. At this point, data acquires a direction from sender to receiver, along with interpretation. In an example – that evokes Rousseau’s image of a state of nature in which our first words “were not love me [aimez moi] but help me [aidez moi]” (Rousseau 1986, 47) – this request can be illustrated by the warning cry or mating call of animals. Whereas previously the stability of the organism against its environment was a permeable physical barrier, stability is now envisaged as a “cognitive membrane” concerned with “internal data within the system and their codification: memory and language” (Floridi 2013, 559). The third and final phase is envisaged as the movement from being aware to being self-aware. The further distance from the environment is described in terms of a “consciousness membrane” that is concerned with the stability of the self itself. At this point, data becomes information that includes conventional meanings, including language. The self, “appropriates and unifies what happens to the corporeal and on the cognitive levels of his or her own experiences” (Floridi 2013, 560). Floridi rejects the idea that Kant’s transcendental self (that unifies all perceptions) is the final answer to the problem of how to think this unification. Instead, he produces an evolutionary story in which we are able to develop a sense of self as a result of our “informational nature”. This reframing of the self also changes how we think of privacy and the harm involved to our selves when our informational privacy is undermined. If we are viewed as informational selves, which is an evocative way of thinking about our interactions online, then it is necessary to consider the way in which information is stored and processed. Given our biological evolutionary history, we do not store and process information in the same way as computers. Computers can enhance our memory but also (as critics have recognised) store memories that would otherwise be forgotten. I have discussed this more fully in Chapter 4 on Locke. Floridi adds some points in favour of the right to be forgotten. In The Fourth Revolution he adopts the idea that “Recorded memories tend to freeze and reinforce the

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nature of their subject” (Floridi 2014, 72) and refers to such external memories as providing “narrative constraints”. This is the case even though the environment is not stable. For example, specialists have sold their ability to game Google’s algorithms in order to try to remove damning publicity that may produce hostile reactions and threats as well as prejudicing others.13 I agree both with Floridi’s concern over harmful publicity (particularly the humiliation of minority groups in contexts that reinforce hate speech) that strongly supports the arguments for the right to be forgotten and also the argument that these can provide “narrative constraints” to self development. Floridi (2013, sec. 11.2–11.3) suggests that both Locke and narrative theories of self are potentially useful as ways of thinking about the persistence of selfhood over time. I have discussed Locke in detail in Chapter 4 and note that Floridi’s reference to the self that, “appropriates and unifies what happens to the corporeal and on the cognitive levels of his or her own experiences” (Floridi 2013, 560), mentioned above, comes close to the discussions of self in Essay Concerning Human Understanding by Coleman and Balibar, discussed in that chapter. Before leaving Floridi’s analysis of self and its relevance for privacy on the basis of our selves being informational, I want to move from Floridi’s evolutionary ideas to his characterisation of humans in terms of homo poieticus. Floridi refers to humans as a species as “homo poeisis”, creative humans, making it plain that he views this creativity as a defining feature of “who we are” that leaves open what can be achieved. As I will discuss below in the final section, this emphasis upon human ability (to bring forth something new) disrupts Hannah Arendt’s division between “zo¯on politikon” and “homo faber” and between public and private.

Homo poieticus, homo faber and zo¯o n politikon In Arendt’s (1958) The Human Condition, she divides the active life into three areas, in hierarchical order: action, work and labour, associated with zo¯on politikon, homo faber and animal laborans. This envisages humans in turn as: political animals, humans as creators or makers of things and working animals. She envisages a clear public/private divide, associated with the ancient Greek polis, in which women and slaves are the working animals who labour in private so that free men have time to act (politically) in

13

www.theguardian.com/technology/2015/feb/21/internet-shaming-lindsey-stone-jonronson For EU’s legal development to remove links to the name of data subjects in google search results that are out of date and prejudicial see Gonzalez v Google Inc (2014) Case C-131/12 Grand Chamber.

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public. Associated with this distinction is the idea that women are envisaged as giving birth to humans rather than to ideas (Plato 1997c).14 The distinctions between these three actors are clearly drawn in the Human Condition and are hierarchical. At the bottom are the animal laborens, the humans whose role is associated with the activity of repeated toil that is necessary to maintain the body, such as washing and cooking. These are repetitive tasks that do not bring anything new or permanent into the world. In contrast, homo faber creates things that persist over time and shape the human environment. For Arendt, the work of homo faber includes the creation of our architecture, for example. The political role of zo¯on politikon represents the pinnacle of human activity. For Arendt, political action is not to be reduced to the administration of human affairs to solve problems of hunger and the need for shelter nor is architecture analysed in terms of its political effects. Action is central to being human. People come together in public to reveal (or, better, to create)15 “who they are” in their individual uniqueness through the virtuosity that they display by their great words and great deeds. With the Greek polis in mind, Arendt describes the ability of humans acting in concert to bring something radically new into the world; to change history and create novel ways of living. This creativity is discussed in terms of “natality” (Arendt 1958). Such a political life is associated with an idea of freedom as associated with status: living as a free man, defined against slavery and the position of women. Floridi’s conception of homo poieticus sounds like Arendt’s homo faber but is not envisaged in the same way. In fact, Floridi’s homo poieticus shares some qualities with both homo faber and zo¯on politikon in Arendt’s framework because of the way that Arendt and Floridi envisage creativity differently. While also creative, Floridi’s homo poieticus differs from homo faber, who produces a world of things in which there is “permanence, stability and durability”. The “world” that is produced online does not necessarily have such permanence. More importantly, the central characteristic of Arendt’s homo faber is that his/her creativity is not open-ended. Arendt envisages the creation of anything from a clay pot to creating a building as a hylomorphic process in which homo faber envisages the object in his/her mind and then acts on passive matter to bring it into shape in a way that is predictable. The image of matter is therefore something which is passively moulded and which can be acted upon with predictable results. This is the view of matter from Plato’s Timeous, which is gendered. Women are aligned with passive matter, which Plato argues, must not be active (Butler 1993, chap. 2: The

14

15

Arendt’s reading of Aristotle has been subject to challenge (Swanson 1992). I am interested in the arguments themselves and their relationship to privacy rather than their attribution. Bonnie Honig (1992) and Andy Schaap (2009) have emphasised this as being a process of creation of “who you are” rather than of revealing your underlying abilities.

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Lesbian Phallus). Matter is given form by the male, ruling out the idea of self-forming matter that is unpredictable. This was never a useful view of matter – particularly living matter that is able to generate life. It has become a cliché that the internet environment also provides a forum in which different (albeit sometimes very poor) qualities can be exhibited. Online creativity by homo poieticus can be viewed as “work” in creating something that exists in the world but it also shares a number of characteristics of Arendtian action: it brings novelty into the world, it lacks permanence, it is not hylomorphic and it is both unpredictable and may involve public exhibitions of virtuosity. The experience of different types of online action is subject to transition. For example, online activity is often experienced as private (Cocking 2008; Richardson 2011) but may be on public view, potentially seen by millions. This mismatch between perception and reality may be altering as the implications of public speech become better known. There is an analogy with action on a public street, that may be public and political (as in a demonstration) but alternatively can now be viewed as private. Courts now recognise that there is a difference between someone being viewed on a public street and being seen by millions on television or online. (For example, in Peck v UK,16 as discussed earlier). The public/private divide as envisaged by Arendt has been criticised as not reflecting Aristotle’s position (Swanson 1992) and re-worked by feminists, in particular Adriana Cavarero (2000). When zo¯on politikon is replaced by homo poieticus, how do we envisage the relationship between individuals that makes up a community, including a global community, state or society? This question is addressed and framed ethically by Floridi’s (2013) response to the inadequacy felt by individuals faced with global problems. In the next chapter I will turn from Floridi’s work to apply my reading of Spinoza to the question of privacy. This involves thinking about information in terms of what can increase our knowledge of the world, which will enable us to act rather than be passive.

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Peck v UK [2003] 36 EHRR 41

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Chapter 7

Spinoza

An immanent ethics of privacy

Introduction At a time when it has been argued that philosophy needs to create new concepts in order to understand the social and political changes involved in ubiquitous computing (Floridi 2011, chap. 1), I want to consider and apply work from the seventeenth century. This is not perverse. Spinoza was creating a new conceptual framework that drew upon the Stoics’ linkage of knowledge and virtue, at a time when there were also radical changes in the way in which we communicate. As Jonathan Israel, who traces the influence of Spinoza as a central figure in the Radical Enlightenment, describes this period (1650–1750): For it was then that western and central Europe first became, in the sphere of ideas, broadly a single arena integrated by mostly newly invented channels of communication, ranging from newspapers, magazines, and the salon, to the coffee shop and a whole array of cultural devices of which the erudite journals (invented in the 1660s) and the ‘universal’ library were particularly crucial. (Israel 2001) Irrespective of whether this had an effect on Spinoza’s arguments, I support the claim that his thought opens up an approach to thinking about privacy that is not considered within the canon of privacy nor within Floridi’s insights, albeit that the conceptual frames share some similarities. One effect of the growing area of philosophy of information has been to re-purpose arguments from the history of philosophy in order gain insight into problems that arise from the impact of information technology today. Spinoza’s influence, marginalised in the Anglo–American tradition, is being rightly reclaimed in other areas of philosophy, as Israel’s work illustrates. Within the twentieth century the political aspects of Spinoza’s work has been influential in the work of continental philosophers of the left and

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feminists.1 To consider the potential that his conceptual framework holds for thinking about privacy involves considering an alternative path that could have been taken. Étienne Balibar describes Spinoza as a “philosopher of communication”: Spinoza’s philosophy is, in a strong sense of the term, a philosophy of communication – or, even better, modes of communication – in which the theory of knowledge and theory of sociability are closely intertwined. (Balibar 1998, 101) For Spinoza, knowledge (and – I would add – information that can form the basis of knowledge) are important because they change “who you are” and the life you lead. This is captured in the following quotation: [For Spinoza] knowledge is more a mode of being than having, not something we possess but some thing we are or become. As Monique Schneider notes, in attaining knowledge we do not attain an acquisition, as if something new were added to an inventory of our possessions, but rather we exist differently. (Yovel 1989, 159; referencing: Schneider 1977; and Schneider 1988; see also Gatens and Lloyd 1999, 127; Richardson 2009, 63) In other words, what is at stake for Spinoza, is not simply a question of epistemology but of ontology. By producing a framework in which knowledge is central to “who we are”, which includes an analysis of human beings as part of the whole of existence, Spinoza’s work from the seventeenth century covers some of the same ground as Floridi’s philosophy of information, discussed in the last chapter. It starts with an ontology, with a way of conceptualising all that exists, and moves from ontology to ethics and politics. Spinoza’s ethics – concerned with an ethos or art of living and its focus upon daily life – is far from the abstract view of respect for personhood in Kantian (deontological) morality. In contrast with Kant’s later image of the free and equal person, discussed in Chapters 1 and 3, Spinoza is critical of philosophers who “conceive men not as they are, but as they would like them to be” (Spinoza 2002a, chap. 1, 680). Spinoza’s conceptual framework is sensitive to the historical and political context of communication. Before starting to explore the role of knowledge in Spinoza’s ontology, it is necessary to explain the distinction between information and

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Louis Althusser (1997), Gilles Deleuze (1990; 1988), Etienne Balibar (1994; 1997; 1998), Warren Montag (1989; 1999) and contemporary feminist philosophers: Moira Gatens (2004), Genevieve Lloyd (1994) and Susan James (1996; 2008; 2012; James, Lloyd, and Gatens 2000).

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knowledge. Spinoza refers to “adequate knowledge” and not “information” and the two terms should not be elided, if Spinoza is to be properly “repurposed” within the area of philosophy of information. I outlined Floridi’s definition of information in the last chapter. He defines information as meaningful and true data (in these two crucial respects it differs from Shannon’s 1948 definition). Information is employed to produce knowledge. Irrespective of the debates within philosophy of information and in epistemology more broadly, I think it is fair to claim, simply for the purposes of this chapter, that the circulation of some types of information may facilitate an increase in Spinozist “adequate knowledge” of the world. The meaning of “adequate knowledge” will be explained below. I will now explain Spinoza’s conceptual framework to illustrate how it can be employed to address a question that is central to privacy today. This question I am addressing is: when should information be classed as private and when should it be communicated? This is not an easy question to answer given that there is information that we need to communicate and some that should be kept private so erring on the side of caution is not an option (see Richardson 2014a). To answer this question involves exploring Spinoza’s argument that, in order to be more free and virtuous, we must increase our powers of acting in the world and help others to do the same. To employ Spinoza as guidance draws upon Spinoza’s analysis of the ethical importance of the spread of “adequate knowledge” rather than sad passions. I will now start by explaining the meaning of adequate knowledge, which requires an outline of Spinoza’s ontology. This will illustrate the central importance of the communication of knowledge in society, which forms the basis of my argument about privacy and free speech. To do so involves considering some of the ways in which Spinoza’s arguments prefigure Mill’s (1977) On Liberty, while adopting a very different image of selfhood and ontology. I also examine some of the areas in which the communication of important information is blocked as a result of different prejudices and laws (both of which function at the level of the imagination and are associated with sad passions, in Spinozist terms). I then explain what is at stake in Spinoza’s immanent ethics and its political implications for freedom and free speech. Finally, I apply Spinoza’s immanent ethics to the following question of privacy: “what should be classed as private and what should be communicated?”

Spinoza’s ontology and adequate knowledge Spinoza explains both inadequate and adequate knowledge in terms of our encounters with other things in the world. For Spinoza, all that exists is one substance. This is in contrast to Descartes who viewed mind and body as two different substances. Instead, Spinoza describes Thought and Extension as

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different ways of comprehending the same thing: substance/God/Nature. (By Extension he means physical matter that “extends”, that is takes up space in the world.) As a result, Spinoza does not have the Cartesian problem of explaining how a human mind and body are able to interact because both mind and body are different ways of comprehending the same ‘thing’, in this instance, a human being. I will return to this below. Spinoza refers to all of existence – that is comprised of this one substance – as “God or nature”, by which he means that the two are synonymous. So, Spinoza closes down the idea that there is anything outside of nature/God/one substance (meaning “Being” or any term that you wish to apply that refers to “all that exists”, which I will refer to as “nature”). He can therefore be viewed as an atheist – as the Churches were quick to realise – because there is no separate God that judges us from on high, outside of nature. By viewing God and nature as the same thing, that is, the whole of existence, Spinoza thereby loses the idea of a God as an external legislator, something anthropomorphic that judges us from a separate realm. This has implications for his understanding of law. Prior to human law, the only laws are those of nature, such as gravity. These laws are not breakable. In Spinoza’s system this is a rigorously anti-anthropomorphic move. So, in summary: Nature/God/whole of everything is comprised of one substance that expresses itself in different ways. As part of all that exists, which Spinoza refers to as “finite modes” (or modifications of nature), we are affected by other bodies and other minds. I will focus upon bodies for a moment, although the same arguments apply to minds. We could not survive without interacting with other bodies. As human beings we are also composed of other bodies, such as bacteria in the gut (the ‘microbiome’) and (according to one theory) the mitochondria in every cell, which is the descendent of a once separate organism (see Margulis 1970; 1993). Similarly, we are part of a number of larger bodies. As discussed at the end of Chapter 3, whenever bodies act together in order to produce an effect, those bodies are acting as one body. As Spinoza says: By singular things I understand things that are finite and have a determinate existence. And if a number of individuals so concur in one action that together they are all the cause of one effect, I consider them all to that extent, one singular thing. (Ethics II.D7)2

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All references to Spinoza’s Ethics use the Curley translation (in Spinoza 1985). References are by Book, then axiom, definition or proposition, then the corollary or scholium that follows the proposition. So a reference to proposition 21 of the first book of the Ethics would be: Ethics I.P21

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The same is true of each individual thing: it is comprised of other things and is in turn part of a greater whole. Spinoza views the whole of existence in terms of parts that make up other bodies extending to the whole of existence in the following manner: And if we proceed in this way to infinity, we shall easily conceive that the whole of nature is one individual, whose parts, that is, all bodies, vary in infinite ways, without any change to the whole individual. (Ethics II.P7Sch.) Nature consists of an “infinity of attributes” Ethics I.D6, of which Thought and Extension are only two. The image of humans as parts of nature has implications for Spinoza’s conception of social relations, as I will discuss below. It is now possible to consider what happens when bodies encounter each other, in more detail. The most important example, for privacy, is the interaction between a human being and other human beings, although the same principles apply to our encounters with everything. These encounters with other bodies (or minds) can be sad or joyful for us depending upon whether they decrease or increase our conatus (by which Spinoza means: our power of acting, or ability to thrive and survive). So, to take a simple example, my encounter with a crocodile that bites off my arm would be sad for me, in that it diminishes my power of acting, but would be joyful for the crocodile in that it gains a food source. Similarly, my encounter with ideas (others’ minds) may be sad, if it carries the message that women’s bodies are shameful, for example, and has the effect of diminishing my power of understanding. (It would not be a sad encounter were I unaffected, of course.) Both mind and body are different ways of describing the same thing – the human being – and so both mind and body will, in parallel, be affected by anything that increases my powers or diminishes me. (My power of acting is my power of understanding comprehended through the attribute of Extension or Thought, respectively.) This description of bodies or minds encountering each other leads to a framework that makes communication central. This proposition is based upon the fact that at the first stage of knowledge, what Spinoza calls the imagination (“inadequate knowledge”), our imaginative impression of another body or another mind (an idea) is accompanied by an emotion, such as sadness at losing my arm to the crocodile in the previous example. Inadequate knowledge facilitates a number of common errors in our understanding. We tend to assume mistakenly that the reason we react with sadness or joy to an encounter is because the other party is evil or good. I label the crocodile that ate my arm as ‘evil’. These feelings stay with us, along with the imaginative impression of the encounter, even when we are able to move to the second stage of knowledge (“adequate knowledge”): that of being able to understand the encounter. The imagination and our

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feelings are not faulty in that they do tell us something about the world. It is just that they are partial or, as Spinoza describes them, “inadequate” (for discussion see, Gatens 1995). Additionally, it is an error to characterise Spinoza as disparaging emotion (West 1993). Spinoza emphasises the need to increase our joyful encounters of the world and reduce sadness by being able to understand what agrees with the way in which we are composed. This involves considering the bodies that constitute us and their characteristic speeds and slowness in relation to each other. For example, radical alterations in our heart rate will result in decomposition of the whole and death, the ultimate sad encounter. This emphasis upon not merely surviving but also thriving involves being able to increase the types of ways that we can encounter the world, our ability to associate with different bodies and ideas that enrich our lives. Such enrichment is understood as further increasing our power to expand these connections with others that agree with our constitution; to open up new ways of living. This includes an aesthetic dimension that applies to both women and men: It is the part of a wise man, I say, to refresh and restore himself in moderation with pleasant food and drink, with scents, with the beauty of green plants, with decoration, music sports, the theatre, and other things of this kind, which anyone can use without injury to another. For the human body is composed of a great many parts of different natures, which constantly require new and varied nourishment, so that the whole body may be equally capable of all the things which can follow from its nature, and hence, so that the mind also may be equally capable of understanding many things at once. (Ethics IV.P45Sch.) It is by gaining adequate knowledge, our ability to be able to “understand many things at once”, that we can seek out encounters that agree with us. Given that we are finite creatures, we cannot always understand our encounters adequately. In addition, Spinoza argues that we cannot have an a priori clear and distinct idea of our minds through introspection (Ethics II.P28 and II.P28Sch) nor of what our bodies are capable of doing (Ethics III.P2Sch), a claim that he makes prior to Freud and neuroscience. We can only try to work out knowledge about ourselves through our awareness of the effect upon us of interaction with other bodies or minds. In summary, our ability to understand an encounter allows us to go beyond labelling something evil or good in itself (because nothing is) and to working out why a specific encounter either increased or decreased our powers of acting. In my simple example, I learn the relevant parts of the biology of my body and that of crocodiles and understand why the crocodile disagrees with my constitution. With regard to the idea that women’s

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bodies are shameful, adequate knowledge would involve ideas of the history of women’s subordination and the forms it takes in our society. This would involve understanding some of the entities (my society with its own history in this example) of which I am a part. This society is not fixed, nor are we only a part of any one grouping (larger body). As discussed above, bodies (or minds) are viewed as a singular entity to the extent that – at any given time – they have combined to have an effect on the world. We can form a “singular entity” with non-human things. However, humans are more useful to us in gaining adequate knowledge and hence increasing our conatus, that is, our powers of acting/understanding. As I will discuss below in the context of Spinoza’s arguments for free speech, it is important to note that Spinoza does not view the individual as subordinate to society, or any other greater whole of which she or he may be a part. In addition, he focuses upon encounters between different bodies and different minds (ideas) as his starting point.3 Drawing from his ontology, Spinoza is concerned with daily encounters in our lives and with the ways in which they can transform “who we are” by diminishing or enriching us. It is useful to underline the role of the passions in more detail because there is joy involved at different levels of knowledge, illustrating that it is incorrect to characterise Spinoza as rejecting passion for dry reason. Spinoza states: We see, then, that the mind can undergo great changes, and pass now to a greater, and now to a lesser perfection. These passions, indeed, explain to us the affects of joy and sadness by joy, therefore, I shall understand … that passion by which the mind passes to a greater perfection. (Ethics III.P11Sch.) This increase in our power of understanding and acting (“to a greater perfection”) refers to our ability to be more active in finding those parts of existence that allow us to thrive.4 In addition to the passion that accompanies this first type of knowledge (inadequate knowledge, associated with the imagination), we experience an increase in adequate knowledge about the world (the second form of knowledge, when we understand an encounter) as in itself joyful. So, this experience of joy that we feel when we gain adequate knowledge allows us to gain greater joy (and to be active in avoiding sad encounters) in the future. In other words, adequate knowledge

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This aspect of his thought can be compared with Locke’s description of an individual’s appropriation of food or ideas, as a result of working on them, discussed in Chapter 4. Spinoza’s description of encounters does not envisage an individual bringing things into itself but encounters that change “who we are”. I have avoided the term “flourishing” to avoid association with Aristotle, who provides a different conceptual framework (Aristotle 2000).

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allows us to thrive in ways that would be otherwise closed to us. This is not a teleological development and can produce different ways of living, depending upon all the encounters that we can have. In summary, such practical knowledge about our world enables us to be active and involves much more than amassing a number of facts. It allows us to judge and to live a life of wisdom; to become more virtuous by seeking out bodies and minds that enable us to thrive. Spinoza’s debt to the Stoics and to Socrates is clear, illustrated by the relationship between knowledge and virtue. Just as there are (for example) gymnastics and medicine that will allow the body to thrive; there are also encounters that will allow the mind to thrive; so that we become different (more “perfect”) people (Sellars 2013). Writing at a time when the body was disparaged and associated with sin, Spinoza did not simply refer to the ability of the mind to thrive, by encountering new ideas, but also the ability of the body to extend its abilities. In a phrase now made famous by Deleuze (1988, 17), Spinoza states: [N]o one has yet determined what the body can do, that is, experience has not yet taught anyone what the body can do from the laws of Nature alone, insofar as Nature is only considered to be corporeal … For no one has yet come to know the structure of the body so accurately that he could explain all its functions – not to mention that many things are observed in the lower animals which far surpass human ingenuity, and that sleepwalkers do a great many things in their sleep which they would not dare to awake. (Ethics III.P8Sch.)

The importance of the transmission of adequate knowledge Spinoza’s politics are based upon the idea that human bodies are similar enough to each other that what people know (adequately) of their encounters with the world is useful for one another. Others can help me survive by explaining to me why and how I can avoid crocodiles but can also help me to develop wisdom and live a better life; to thrive as well as survive. This advice would not be helpful were our bodies and minds not sufficiently similar. If I were a cloud of gas then I would have nothing to fear from crocodiles. As Spinoza states: Among individual things nothing is more useful to man, than a man who lives in obedience to reason. (Ethics IV.P35Corr.1) There are a couple of points to understand about this quotation: (1) the ambiguity about gender; and (2) the concept of reason. First, the reference

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to the male as somehow both gender neutral and sexed often produces ambiguity in old political texts. Sometimes this ambiguity is actually doing some necessary work, by disguising when a conceptual framework is predicated upon women’s exclusion, or even an ambiguity in their position, as illustrated by Battersby (1998), whose reading of Kant is discussed in Chapter 3. However, in this case, there is strong textual evidence that Spinoza’s argument includes women. In his discussion of Adam in the Ethics he states that: the man having found a wife [uxore] who agreed completely with his nature, he knew that there could be nothing in nature more useful to him than she was. (Ethics IV.P68Sch.)5 Spinoza recognises that human bodies are similar but not identical. His claim is that we are useful to each other, not that, for example, all cures will apply to all human bodies, in exactly the same way. For example, there have been tragic consequences when medical researchers have tested drugs on men that were then aimed at pregnant women (Scott 2012). My second point about the above quotation is that Spinoza views reason as our ability to understand specific encounters with other bodies and minds. These encounters are situated historically, in a particular cultural context. Spinoza’s definition of reason is neither abstract nor facultative, but always concerned with specific encounters, which give us insights into ourselves and the world around us. This embodied view of reason should not be confused with the dominant view of reason as instrumental calculation, beloved of neo-liberalism, nor is it the view of reason that Kant describes. Kant’s view of reason is of a faculty, which allows us to think of Ideas (of things not in the world, such as the moral law) and which differs from the faculty of understanding, which involves bringing our sensations under a concept. In contrast, Spinoza does not distinguish between our ability to reason and our ability to understand an encounter adequately. To reason is to understand; to gain adequate knowledge of an encounter. The importance of the communication of information such that we can attain adequate knowledge has political as well as ethical implications. I may be a tyrant, keeping my subjects in a state of fear (i.e. as dominated by inadequate knowledge, associated with their images of me). In turn, fear encourages superstition, which prevents my subjects from becoming active by understanding why encounters have the effects that they do. However, this makes me (the tyrant) worse off because I lose the benefit of living in a society with others who are wise. At a basic level, I would increase my

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For discussions of this, see Richardson (2009), Lord (2010), Sharp (2012).

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potential survival if others were able to find medical cures that I need. I would also live without being in fear of my subjects revolting. However, the constraints of having a society based upon fear go beyond this risk. My ability to thrive depends upon living in a society in which all parts are active in increasing their powers of acting/understanding to thrive in unforeseen ways, in both body and mind. This is an insight that escapes neo-liberal thinkers, whose image of human beings is based upon atomistic individualism. On the other hand, Spinoza does not sacrifice the individual to society, as communitarians would do if they appeal to the idea of a noncommodified society held together by women’s unpaid labour and subordinate status. I will return to support this claim about Spinoza’s thought below. Spinoza prefigures John Stuart Mill (discussed in the first and third chapters) by pointing out that both individuals and society will be diminished if we are afraid to communicate our ideas or experiment with different ways of life because of social pressure to conform. To give a contemporary example with respect to privacy, conformity is likely to emerge if we are constantly monitoring the impact of our actions on our online profile or “data doubles” (on this point see Los 2006). Writing around two centuries before Mill’s On Liberty, Spinoza’s writing in the Theological–Political Treatise has passages that are very similar. Both are worried by the aim of religious groups to restrict speech and to diminish the scope for enlightened argument. While Spinoza does not have a teleological notion of progress, there is a sense that we can thrive only in a thriving society; that attacks on free speech have the potential to diminish both the individual and society. Chapter 20 of Theological–Political Treatise starts with the chapter description and aim: Where it is shown that in a free state everyone is allowed to think what they wish and to say what they think. (Spinoza 2007, 230) In Chapter 20 of the Theological–Political Treatise, Spinoza stresses that it is impossible for a sovereign to totally control what people think and say. Any who try will be required to use violence against their subjects, which undermines “their natural right to live and to act without harm to themselves or to others” (Spinoza 2007, 252). For Spinoza, this “natural right” refers to their ability to do so and nothing more; that it is not possible for a sovereign to impose such control (see Richardson 2009). Spinoza differs from Mill in the above quotation in that he does not accept individuals’ right to harm themselves, save in situations when it is the least worse option, for example, in which we need to amputate a limb in order to survive. This derives from the conception of self that differs from that of liberals. For Spinoza, the individual is part of society (and part

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of other bodies and minds, which are part of the whole of existence) – a “transindividual” (Balibar 1997) – rather than an atomistic separate individual. Spinoza does not view us as naturally ever wanting to harm ourselves and if this occurs it is because we have been overwhelmed by a sad encounter with an external body or mind (idea). A society in which some of its parts fail to thrive is itself diminished – a point that has been employed in both Marxist and feminist readings of Spinoza.6 This raises the question of whether individuals or groups could be sacrificed for the greater good. So, for example, could the privacy of some individuals or minority racial/religious groups be sacrificed for greater security of others? Contra Kisner (2011), I will argue that this is inconsistent with Spinoza’s position, in the section on free speech below. In the next section I will explain what it means to have an immanent ethics of privacy, extend this to an examination of the political implications of Spinoza’s ethics and then apply the ethics to specific areas of privacy later in this chapter.

An immanent ethics of privacy It is necessary to explain what it means to claim that there is some information that should be shared and some that should be kept private, when understood within a Spinozist framework (see also Richardson 2014b). As discussed, there is no transcendent God or universal moral law within Spinoza’s metaphysics that serves as the basis of this normative claim. All imperatives are hypothetical, none are categorical. With no God outside of nature (all that exists), there is nothing that can take the place of an anthropomorphic judge or legislator. The nearest to a ‘judge’ that we have is nature, which – in accordance with natural laws, such as gravity – destroys those humans who try to fly unaided from twelve story windows. This destruction and these laws of nature are not willed by an anthropomorphic God but just describes ‘how things are’ in our world. When we work this out, we actively seek out new encounters that are likely to allow us to thrive and try to avoid defenestration. In addition, different societies develop knowledge and culture in diverse ways, while taking into account these laws of nature. Different ways of life and different values cannot be rated in a hierarchy in accordance with a universal moral standard – a point that prompts value pluralism.7 The only underlying ethics is that of individuals striving to thrive, which necessarily involves recognising that others’ also need to do so. This ethics is not relativist because, for Spinoza, it is still possible to judge that some

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See fn1. There is an irony here, given Berlin’s value pluralism and the fact that the English reception to Spinoza may have been coloured by Berlin’s criticism of his view of freedom (James 2012, 208 fn. 3). Berlin’s points are important and will be discussed below.

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societies are more ethical than others, given that neither oppressive societies, nor their members would thrive as well as those societies that allow their members to thrive (see Gatens 1995). I will return to defend this point in the next section, because this reading of Spinoza is contestable and is relevant to the question of whether it is possible to think of the sacrifice of the privacy of individuals or groups for the greater whole, a position that I argue against. To underline the way in which Spinoza’s work marks a shift from an analysis of evil (with its connection to transcendence) to what is merely bad for one of the parties of the interaction, it is worth giving an illustration. Deleuze (1988) draws attention to Spinoza’s helpful illustration of his immanent ethics, that appears within Chapter Four of the Theologico–Political Treatise (Spinoza 2007). In the story of Genesis, it may appear as if God, acting as an external legislator, commands Adam not to eat the apple. However, there is no transcendent claim to morality involved in Spinozist ethics. Instead, Spinoza’s interpretation is that this “command” is actually simply advice that eating the apple would disagree with Adam’s constitution, that is, it would make him ill. In other words, to say that the apple should not be eaten does not mean that there is an anthropomorphic God, external to nature, who forbids eating the apple but serves as a warning that to do so would reduce Adam’s powers of acting. By diminishing the power of Adam’s body to act, as a result of food poisoning, the apple diminishes Adam himself, just as an idea (in his mind) that he is sinful would diminish Adam as a whole entity. Recall, this is because Adam’s body and mind are simply the same thing conceived under the different attributes of Thought and Extension (and not different substances as they were thought to be by Descartes). Our mind is the idea of our body and not something separate to it (for contemporary support for Spinoza’s position on this see Damasio 2003; Ravven 2003). Writing in the social contract tradition, Jean Hampton contrasts two approaches to ethics: what she calls (as a Kantian) Hobbes’ quasi-ethics and Kantian ethics (Hampton 1997; 2002; 2007). Spinoza falls outside both positions but a comparison with both is useful to illustrate his originality, applying the example to privacy. Kantians employ the categorical imperative (“Act only according to the maxim whereby you can, at the same time, will that it should become a universal law”) to answer the question as to what must be kept private, based upon respect for personhood. In comparison, for Spinoza, rules that function only at the level of the imagination, by re-enforcing fear and superstition, can be viewed as attempts to separate someone from his/her powers of understanding and acting. Spinozist ethics therefore appear closer to Hobbes’ image of all individuals calculating what is in their best interests and acting accordingly. Spinoza initially appears to provide an inauspicious framework on which to base an ethics in relation to privacy.

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The distinction between Spinoza and Hobbes is important to my application of Spinozist ethics. As I will explain in detail below, my application of Spinozist ethics (to the question in relation to what should and should not be communicated) prompts the following answer as guidance: whether the communication increases or decreases our powers of acting. While this sounds Hobbesian, the difference in approach to ethics lies in the ontology; the meaning of “our” in this sentence. Unlike Hobbes, Spinoza does not characterise humanity in terms of isolated, competing individuals who are the sole cause and explanation of their own actions. He does not envisage us as merely calculating our own interests in competition with others but – like all parts of nature – of trying to thrive. In place of the Hobbesian individual, Spinoza envisages us as (what Balibar (1997) terms) “transindividuals”. I have mentioned this term before but it needs to be explained in more detail. It not only distinguishes Spinoza’s ethics from Hobbes’, but also illustrates how radically Spinoza differs from the liberal tradition’s individualism from Locke onwards, discussed in Chapter 4. Balibar uses the term “transindividual” in order to highlight that persons can be viewed both as individuals and as parts of other bodies, if “together they are all the cause of one effect” (Ethics II.D7). A society can be treated as a singular thing, just as a human being is comprised of different parts, such as bacteria in the gut, to the extent that it has effects. Spinoza’s “transindividuals” are themselves parts of nature (all that exists), just as is any other finite “singular thing”. Hence, the same arguments about transindividual striving can be applied at each level of analysis. This is the strong sense in which the individual is actually part of society that is not accepted within the methodological individualism of Anglo–American readings of Spinoza, which view any reference to a social body as merely a metaphor (critiqued by Montag 1999).8 I will discuss the implications of this in the next section.

Freedom, free speech and adequate knowledge Spinoza has an account of freedom, which equates it to living virtuously. We attain greater freedom, and live more virtuous lives, the more we are able to gain adequate knowledge of the world and thrive as a result. It could appear that Spinoza’s framework leads him to claim that if the state has adequate knowledge then it should impose this upon the individual in order to get the individual to thrive – or that they could be forced to attain

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For arguments that the treatment of the state as if it is an individual, in Spinoza, should be treated only as a metaphor, see: Den Uyl (1983; 1985; 1987), Rice (1990) and McShea (1969); on the opposing side in this controversy, see: Matheron (1969), Balibar (1998) and Gatens (1995).

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a “higher self” as Berlin (2002a) states in his attack upon Spinoza. In the context of invasions of privacy today, this does not even require a tyrannical state. In a less authoritarian state, it is easy to image a society in which the government leaves it to companies to monitor individuals. For example, details of our health can be forwarded to insurance companies and to ensure compliance we can be nudged in a number of ways that, while not strictly authoritarian, leaves little room for manoeuvre. The question of whether Spinoza produces a philosophical framework that can be manipulated by authoritarian governments to justify interference with citizens (Berlin’s claim) ties into another problem, mentioned above: whether Spinoza would justify the sacrifice of individuals or groups for the good of society as a whole. In the context of privacy, this would involve undermining the privacy of some for the (purported) good of others. In this section I will consider these two points separately, taking the latter first. (a) Sacrificing individuals or groups, for the greater whole First, I will consider the question of whether Spinoza’s work justifies the sacrifice of individuals or groups for the greater good of the whole. In privacy terms, this could include systematic privacy intrusions on some groups based upon racial or religious profiling for the (supposed) security of others. This may appear to be a dated concern to the extent that there is now evidence of mass surveillance (Greenwald 2014). However, there are decisions to be made about the extent to which the details of an individual life will be subject to scrutiny after the mass data is collected and stored. Spinoza’s framework provides arguments against the sacrifice of some individuals for the security or social welfare of others, even if it is assumed that Spinoza viewed the nation state as something with its own body and conatus (powers of acting/understanding). This is the harder case because it sounds as if the state, if envisaged as having its own conatus, is likely to be in potential conflict with the conatus of its citizens. However, when viewed in this way, its mind and body are comprised of the minds and bodies of all its parts. As discussed above, if some are unable to contribute adequate knowledge because they are held in fear (sad passion) then the state is weaker than it would be with their contribution. This analysis draws upon the idea discussed in the section on Spinoza’s ontology: that all things are comprised of parts. Different bodies will have different types of conatus. It should not be assumed of those individuals who claim “L’etat c’est moi” that they (as representatives) are actually the state. The state should not be rarefied. As mentioned, the mind and body of the state will emerge as a result of individuals’ minds and bodies acting in concert in certain specific encounters. The way that minds/bodies can be viewed as a singular thing is discussed in Ethics IID7, quoted above. This occurs when minds/bodies act together to produce an effect. Not everyone

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in a society does so at any given point but both laws and culture emerge as a result of complex interactions that can be seen in terms of many encounters, some passive and exploitative and some active. To return to my question: can some thrive at the expense of others in the way that utilitarianism allows individual sacrifice for the greater good? The answer as I suggested above, is “no” because of Spinoza’s view of the transindividual. We do not increase our powers of acting in isolation and are all capable of increasing our understanding of our encounters such that no insight should be lost. As he states: [N]othing is more useful to man in preserving his being and enjoying a rational life than a man who is guided by reason. (Ethics IV.App.IX) In addition, as Montag points out, in his discussion of Spinoza on Adam and in reference to the Ethics, freedom for Spinoza does not set individuals against each other: The freedom that the first man lost, the freedom to persist in his own being by increasing his power, cannot be for Spinoza, as we have established, a freedom that sets one individual against another. The man who is free according to the definition above will, as Spinoza says in the conclusion to the scholium to proposition 68,9 part 4, “desire the good for all men which he desires for himself.” And the effect of so doing, Spinoza explains in proposition 37, part 4, to which he refers the reader at the conclusion of the scholium to proposition 68 in Ethica 4, is that “a good to which a man aspires for himself and which he loves, he will love with a more constant love if he sees that others love it”. (Montag 2009, 70) We want to increase the powers of acting of those similar to us for potentially two different reasons: reason and passion, associated with the different stages of knowledge. Either we recognise the importance of living with wise people and that it is impossible to develop much wisdom (that is to thrive) while living in fear of the state; or we feel sympathy for the pain of someone who is living in such fear. For Spinoza, it is better to help others as a result of our ability to reason than to feel pity. As Spinoza explains in Ethics IV.P50: “Pity, in a man who lives according to the guidance of reason, is evil of itself and useless”. It is evil because it is a sad passion that diminishes us and it is useless because the need to help others arises from our understanding, if we are wise. Someone who neither understands the need

9

Montag refers to proposition 67, which is corrected both times in the quotation.

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to help others nor feels pity “seems to be unlike a man” (Ethics IV.P50 Sch.). This last point references Ethics IIIP.27. It is not pejorative rhetoric but is based upon the imitation of the affects (that is, if we imagine someone like us to feel an emotion then we will be affected in a similar way). Someone who does not feel pity for others who live in fear is therefore not like us, by virtue of not feeling the imitation of the affects. To allow some citizens to have their privacy sacrificed for the ‘greater good’ by the state (and hence to live in fear) is also inconsistent with Spinoza’s view of the reason for the existence of the state. Below I discuss Spinoza’s view of the reasons that people want to live in a state: freedom and security. Both of these aims are severely undermined if any individuals are to be sacrificed for the whole or for other groups of citizens. This can emerge from self-interest, which I will explain crudely (at its most extreme): a) they may – with a lab and education – help to cure your cancer or contribute to your society (and you should not allow bigotry cause you to underestimate the extent to which others can thrive in the right circumstances; this thriving can also include you, at times when you act/think in concert to produce an effect in the world); b) if the state is capable of doing this then they may come for you next. Associated with the last point, the way in which the question is posed: “should a minority suffer from the monitoring of their lives on the grounds that it may increase security for others?”, is insidious in that it wrongly makes it appear as if there is a benevolent state that is then occasionally able to sacrifice some of its parts and carry on, still benevolent, regardless. Given Spinoza’s emphasis upon considering “men as they are” (and its applicability at different levels of analysis) the question this raises is: what sort of state would emerge if it had the mechanisms in place to sacrifice either individuals or particular groups for the “greater good”? Consider the state as a transindividual, with a mind that can include the current laws (Gatens 1995), with a history and with an interaction of bodies. The state alters over time as a result of its encounters and as a result of the re-composition of its parts. The development of a surveillance society may be targeted at particular groups with the aim of security for others and yet this realignment involves developing procedures and mechanisms that will have a chilling effect on all speech. The sacrifice of some individuals undermines freedom because it undermines some parts of society by keeping them in fear and anger (sad passions), thereby threatening their ability to form and communicate adequate knowledge of the world. Once the state develops in such a way, by undermining the rule of law, for example, everyone is subject to fear and sad passions – an analysis that Spinoza shares with Locke. Finally, with regard to groups who are treated as subordinate within a society, it is useful to note Spinoza’s view of essence does not derive from a fixed characteristic that could serve as the definition of a subordinate’s

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essence. The essence of any finite thing is defined as its conatus: what it does to thrive and survive. There is therefore no fixed underlying essence of what it is to be female or black etc. This means that when Spinoza claims that women cannot be citizens at the end of the Political Treatise (Spinoza 2002a, chap. 11, §4), the only meaning of this within his system is that women did not, at that point in time, have the ability to force others to make them citizens (Richardson 2009; Lord 2011). However, once they are able to do so then they have the right to be citizens, simply by natural law. (b) Berlin: Spinoza as justification for imposing adequate knowledge Second, the idea that the state (or particular groups or individuals) may feel that they can impose “adequate knowledge” upon others in order to improve their lives is a criticism that Berlin (2002b; 1993) levelled at Spinoza. Berlin’s famous worry was that Spinoza provides tyrants with an argument for the imposition of their beliefs on their subjects in the name of reason or their higher selves. Berlin’s argument can be expressed in terms of adequate knowledge, discussed above. Does Spinoza justify the following claim by a government: we have adequate knowledge and are going to impose it on you so you can live better lives? In the instances that rightly concern Berlin, what is considered is not an education program but an attempt to impose beliefs by force. I believe that this argument misses its mark in that it misunderstands Spinoza’s “adequate knowledge”. If we could be brainwashed to believe something then we would not have adequate knowledge, even if the belief really was both true and good for us (for example, the need to have a good diet and to exercise). Adequate knowledge – by its own definition – cannot be imposed from outside through force or manipulation because it involves someone understanding an encounter. This distinction is similar to Mill’s argument that we need to engage actively with a belief and its contraries rather than imposing something as dogma.10 Another way of thinking about this point is to focus upon the relationship between activity and passivity in Spinoza’s work. To impose adequate knowledge would be a contradiction because someone with adequate knowledge is the active cause of their actions. If someone has a good diet and exercise imposed upon them (through Pentland’s (2014) scheme of

10

“There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right” (Mill 1977, 231).

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nudging others in the right direction, which is currently popular) the object of this concern may well improve his or her powers of acting and joyful passions but s/he would still remain at the level of inadequate knowledge. S/he is not solely responsible for the good diet without the prompts – rather like someone who can swim only with arm bands (Deleuze 2003; Rubin 2003). However, in the case of the use of force or manipulation, it is less likely that these joyful passions will lead to the attainment of adequate knowledge because the experience of having a state employ coercion tends to create sad passions, fear and resentment, for example. This is in contrast with a non-manipulative education program. Whether or not the state is actually capable of imposing beliefs is a different question from whether such beliefs could be classified as “adequate knowledge”. Ways in which the state has tried to persuade have included the inculcation of superstition, such as the belief in the state as a higher power. This belief conveys inadequate knowledge, with accompanying passions. With regard to the human ability to withstand state pressure, Spinoza changes his mind, becoming more pessimistic after the death of the De Witt brothers at the hands of a mob (Deleuze 1988, 11–12). In the earlier Theological Political Treatise Spinoza makes the rather frosty comment that: For as we have proved, the right of sovereign authorities is limited by their power … No one, therefore, can surrender their freedom to judge and to think as they wish and everyone, by the supreme right of nature, remains master of their own thoughts. It follows that a state can never succeed very far in attempting to force people to speak as the sovereign power commands, since people’s opinions are so various and so contradictory. For not even the most consummate statesmen, let alone the common people, possess the gift of silence. (Spinoza 2007, 251) The idea of the state imposing its image of the good would be the opposite of Spinoza’s position. He is clear: It is not, I contend, the purpose of the state to turn people from rational beings into beasts or automata, but rather to allow their minds and bodies to develop in their own ways in security and enjoy the free use of reason, and not to participate in conflicts based on hatred, anger or deceit or in malicious disputes with each other. Therefore, the true purpose of the state is in fact freedom. (Spinoza 2007, 252) In his final work, the true purpose of the state becomes more Hobbesian: that of security. This is still consistent with the framework of the Ethics. It

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may simply indicate that after the murder of the de Witt brothers and the return of the House of Orange, Spinoza doubts that many individuals can attain adequate knowledge. If we were wise, we would know that our powers of acting and understanding (and hence virtue and freedom) are increased when we live with (and learn from) others who are wise. However, as we have inadequate knowledge and – as a result – suffer sad passions (such as fear), we therefore hope to gain security rather than freedom by living with others. Recall that Spinoza’s reference to freedom does not refer to the right to be left alone but of the practice of increasing powers of acting by increasing adequate knowledge of our encounters with the world. Although Spinoza endorses – what are viewed as liberal rights of freedom of speech and conscience – his argument in support of such rights are not those of liberals, who envisage atomistic individuals as rights owners. Spinoza’s arguments derive from a view of what transindividuals are physically able to do – as a matter of natural law. In his earlier more optimistic work, the state must not try to stop free speech simply because it is against natural law, that is, it is unable to do so. Despite the fact that Spinoza provided a potentially different trajectory from liberal thought, he does have some arguments on free speech that share some of Mill’s later concerns. This leaves him open to an odd line of attack: Berlin’s argument against Mill. I will explore this line of thought to illustrate further the role of free speech for Spinoza. Berlin (2002c) elucidates his arguments in support of value pluralism by pointing out a difficult choice for Mill. Mill assumes that all his values are compatible. Suppose (Berlin asks) that the individuality that Mill admires emerges from more restrictive societies than the liberal ones he values? Mill would then be faced with a “cruel dilemma” (Berlin 2002b, 175) between his different political goals, rather than assuming that they are compatible. Spinoza also wants individuals to thrive, applying Berlin’s question to Spinoza – suppose this thriving occurs in a society without the laws concerning free speech that Spinoza also advocates? Spinoza is able to defend himself against this argument by giving an explanation why – for him – a society with laws that facilitate free speech cannot be separated from the ability of its citizens to thrive; that Berlin cannot claim that there could be a society in which they are opposed. This derives from the discussion above. Spinoza’s transindividual thrives only as a result of increasing his or her powers of acting and understanding. Any society that attempts to constrain them will undermine their abilities to act for the two reasons described above: first, the outcome would be inadequate knowledge (even if the state imposed a good diet and thereby produced joyful passions); second, to impose beliefs involves force which increases sad passions and superstition and hence a state of inadequate knowledge.

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Manipulation to inculcate belief is distinct from genuine education in which a citizen learns why a good diet is important and actively adopts it in his or her everyday life. Is this difference too subtle? Spinoza produces a way in which we can understand superstition (or ‘ideology’) that does not depend upon a crude view of manipulation of beliefs. For example, consider life in a society, let us call it Posner World, in which everything appears to have a price, such that we relate to others in instrumental terms, as part of a network rather than as friends. Such poisonous ideas will have the effect of closing down many areas of joyful encounters. Human development is open, given the infinite number of encounters we can have as parts of nature. Ideas that reduce our powers of acting do not deform us – in the sense that we fail to reach a particular end point of development – but they may constrain our abilities in certain areas, undermining our ability to thrive. The solution requires different exposure to other ideas about human worth in order to recognise the limitations of this idea. Does this mean that such arguments should be banned, an argument discussed by Radin (1996)? In contrast with mere hate speech, humiliation and bullying (which could undermine communication and, in any event, do no more than increase sad passions, to be discussed below), conceptual frameworks, such as those of Posner, which encourage an instrumental view of humanity, have potential uses. They allow others to consider the extent to which they provide an impoverished view of humanity. The problem is that a neoliberal conceptual framework is the idea (or ideas) that impacts upon the mind and is the correlate of certain ways in which the physical world is organised that impacts upon the body. This could be viewed as partial (inadequate) knowledge of such a system (Althusser and Balibar 1977, 258). This extension of Mill’s argument to Spinoza works on the grounds that even arguments that employ an impoverished view of humanity (in contrast with hate speech) may be potentially useful. For Spinoza, it is impossible to have a complete stranglehold on thought or speech in a society, irrespective of the way a dominant framework may be reinforced as common sense in mundane, repeatedly petty and vicious ways. In his defence of Spinoza against Berlin, David West turns the tables on Berlin to show that Spinoza provides an argument in support of freedom that is more able to defend against “cultural, ideological or psychological manipulation” than that of negative freedom (West 1993, 296). Negative freedom is concerned only with lack of interference with what an individual desires to do and is not concerned about whether that desire took root as a result of manipulation. In contrast, for Spinoza, someone who has been manipulated cannot form adequate knowledge, which requires understanding, discussed above. This means that Spinoza’s thought is able to register and criticise such manipulation of desires. In comparison, those who view freedom as negative freedom (simply the right to be let alone) are without resources to criticise the way in which desires are formed. West’s

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analysis of Spinoza is linked with republican arguments against negative freedom as only concerned with the absence of interference (Skinner 2002). Republicans are interested in the psychological impact upon individuals who are subject to the whim of another. However, it is not a sensitivity that is unique to republican thought as the breadth of feminist philosophy illustrates, see for example Pateman (2007). A final point is relevant to both questions addressed in this section. From Gatens’ position, the oppressive society will also be deprived of “better fictions” – progressive images of the world derived from the initial encounters of those who are in a subordinate position. Gatens’ discussion (James, Lloyd, and Gatens 2000) makes this argument based upon the fact that it is difficult to form adequate knowledge. I agree, but would stress that Spinoza would emphasise the need to use reason in order to thrive, by working out why some encounters are joyful and some sad. Recall that this is a view of reason that differs from reason as a Kantian faculty (or alternatively as merely instrumental calculation) because our analysis is always situated, involving our ability to understand a particular encounter in terms of what allows us to thrive. Having made this point, one powerful way of thinking about better fictions is that of the image of human individuals as free and equal persons; of equal moral worth (Lord 2014a; Lord 2014b). This claim re-situates Kantian morality – for example that privacy should be respected as part of respect for personhood, discussed in Chapter 1 – within a Spinozist frame as a “better fiction”.

Applications of immanent ethics to privacy From Spinoza’s ontology, I have shown the central importance of communication of adequate knowledge for our ability to increase our conatus, which makes us virtuous and free, thereby altering “who we are”. This is an ontological rather than merely an epistemological change that in turn opens us to wider joyful encounters and the ability to actively thrive, extending ourselves in unforeseen ways. Any ideas or practices that block such a spread of adequate knowledge are therefore a serious type of sad encounter. My application of Spinoza’s thought to the question of what information should be communicated and what should be kept private therefore involves considering the importance of communication for our ability to increase our powers of acting and understanding. On the one hand, if information or knowledge involves merely increasing sad passions – such as inappropriate shame and fear that draws upon and reinforces prejudice, as in hate speech – then it should not be published. On the other hand, information which increases our adequate knowledge of the world should be communicated. Note that any idea that has the effect of blocking the spread of adequate ideas is pernicious because it goes further than a one-off sad encounter,

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such as that between an individual and a crocodile. Ideas (understood in terms of an encounter of another mind with my mind) that undermine the communication of adequate ideas potentially have wider implications. They undermine the social body and, along with it, all transindividuals who are a part of it by blocking the spread of adequate ideas themselves. I therefore want to look at this problem in detail. My first examples consider areas of subordination: the idea that some are not equal to others and why this perpetuates sad passions and undermines the communication of adequate ideas. My second examples are of laws that can block the transmission of adequate knowledge. (a) Subordination and its effects on the transmission of adequate knowledge If some individuals, for example those of a particular race, gender or sexuality, are not taken seriously when they speak, then their ideas may be lost to society. This is a problem of the communication of information. It may be that other individuals lose the chance of employing the useful ideas of a particular group whose views they belittle. However, it could be worse because living in a society in which such ideas (say that black persons and women are either ignorant or mendacious and so should not be listened to) are dominant, will produce sad encounters for those who are subject to such prejudice. These sad encounters, which communicate the idea that one’s arguments should not be accorded any authority, could have the further effect of diminishing these individuals’ abilities to form adequate knowledge. They may find that others’ estimation of their ideas undermines their own confidence in their abilities, including their own judgement (Fricker 2007). This is particularly pernicious if it discourages individuals from fulfilling their educational potential, a point that raises issues of class as well as gender and race. This last point refers to the problem of subordination in terms of the way some ideas block the communication of adequate knowledge. It is also possible to think about subordination and its relationship to privacy in the context of areas of knowledge that should not be disseminated. Again, the way that I view Spinoza’s framework as providing useful guidance is that it focuses us upon the question of whether information facilitates the spread of adequate knowledge (which should be communicated); or is merely neutral (and so there is no reason not to communicate it); or only has the role of increasing sad passions and inadequate knowledge. In particular, some types of inadequate knowledge may undermine the communication of adequate knowledge (and should remain private.) Where information simply increases prejudice and superstition (or bullies) it merely perpetuates sad passions of fear and anger (and may also threaten free speech itself) then it should not be disseminated. I will give some examples.

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The first example picks up a discussion from Chapter 2. In Gatens’ (2004) nuanced analysis of privacy, she addresses Sally Morgan’s experiences, as described in her autobiography My Place (1987). Morgan describes her bafflement about her grandmother’s concern with privacy. This was extreme and involved isolation on the grandmother’s part, along with worry that her grand-daughter would bring anyone to their shared home. It transpired that Morgan’s grandmother lived in constant fear because she was ‘passing’ (that is, pretending) to be white when she had been classified as black in racist society. To tell her story is important because it drives home the injustice of racism and the pathos of its effects on daily lives; the sad passions of fear and even of shame that it engendered. While this story should be told because it may contribute to the creation of an adequate knowledge of a racist society in ways that could allow it to advance, it would only perpetuate sad passions to give the actual name and details of this woman; to expose her in the way that terrified her. This would be an outcome that many would think appropriate for a number of reasons. What is useful about Spinoza is that his framework provides a different way of thinking about this problem than the liberal approach of posing it in terms of either protecting this woman from harm, or respecting her as a free and equal person. For Spinoza, to expose Sally Morgan’s grandmother (despite the fact that we feel that it is wrong that she should be made to feel ashamed) is simply to increase sad passions. It would humiliate her without increasing anyone’s knowledge of how a society can create the injustice she suffered. As discussed above, to do so would also impact upon other transindividuals. There are a number of similar types of exposure that may arise as a result of different motivations but retain and reinforce sad passions and inadequate knowledge. Another example of this type is the case of a student’s suicide when his homosexual activity was secretly recorded and uploaded online. Again, the fact that this has occurred, tells us something of the injustice of a homophobic society and may lead some to greater adequate knowledge and hence social change. It allows us to consider the history of oppression and potentially the mechanisms by which this works. However, the act of identification itself, can only be viewed as perpetuating sad passions, made worse by the video portraying intimate acts. In this case, the encounter with the idea of his exposure was so intense that it resulted in his suicide. In Spinozist terms,11 he was overwhelmed by minds (ideas) that did not agree with him, an extreme sad encounter. Again, the exposure was wrong but the later reporting of the type of case, had it excluded the

11

“No one, therefore, unless he is defeated by causes external, and contrary, to his nature, neglects to seek his own advantage, or to preserve his being. No one, I say, avoids food or kills himself from the necessity of his own nature. Those who do such things are compelled by external causes, which can happen in many ways.” Ethics IV.P20Sch.

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unnecessary identifying details, was right – not in the sense of an appeal to right and wrong (as a judgement that lies outside of our world) but in terms of what will allow both the individual and society to thrive. The individual – as a transindividual – would not be sacrificed for the greater good, if these were in conflict. Spinoza was not a utilitarian and neither does he view us as atomistic individuals with competing interests. A similar argument can be made with regard to revenge pornography, the practice of men uploading intimate pictures and videos of ex-partners in order to humiliate them for revenge. In all three of these cases, concerning race, sexuality and gender, there is exposure of an historically subordinated group based upon their identity. I will examine all three together from a Spinozist perspective. It could be claimed that in these malicious cases, in which privacy is invaded in order to humiliate someone, the ensuing sad passions are only experienced by the victim. It could be argued that the perpetrator has been gratified by his or her desire to humiliate; to give vent to hatred. However, the perpetrator has not gained any adequate knowledge by this action and is not living a more joyful life as a result (see Richardson 2014b). On the contrary, if s/he were motivated by prejudice (say racism, homophobia or misogyny) then s/he is no closer to explaining the encounters that produced this prejudice and the sad passions associated with it. This attempt to understand the perpetrator’s motivations involves both an analysis of his or her history of sad encounters and also as part of the same analysis the history of the society of which s/he is a part (For Spinoza’s discussion of “evil” see the Letters to Blyenbergh, 18–24, 27 in Spinoza 2002b; and the discussion in Deleuze 1988, chap. 3). How is it possible to move to adequate knowledge of these types of privacy invasions? To gain adequate knowledge of why exposure associated with a subordinate identity can cause such pain, it is necessary to analyse this history. From this viewpoint it is possible to conceive of the idea that it is possible to transform into a society in which such hate speech did not occur as it was meaningless. (b) Laws that undermine the communication of adequate knowledge The second example of ways in which the communication of adequate knowledge (or information on which it can be based) can be undermined, depends upon arguments that Spinoza shared with Mill: the problem of religious laws that limit free speech. Both give subtle analyses of religious groups and their struggle for power in their own societies, along with criticism of the laws that they employed. Today, in the West, there is a struggle over the way in which information is envisaged in an “information capitalist” society. Participants in this struggle are less likely to employ blasphemy laws. The role that these laws played in blocking free speech has been

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replaced by other laws that have a chilling effect on free speech. The laws relating to copyright, which also have pernicious effects on privacy provide an example (Doctorow 2014). Similarly, in the UK, companies have employed defamation laws to try to stem any public criticism, which can have a chilling effect upon such publicity and can raise privacy issues in the conduct of the cases. The most notorious case of this kind is McDonald’s Corporation v Steel & Morris [1997],12 to be discussed further below. Both of these ways in which laws are employed (copyright and defamation) can undermine the dissemination of adequate knowledge and are also strongly tied up with actions that prompt privacy concerns. In other words, they can be viewed as playing a role akin to blasphemy laws in undermining the communication of adequate knowledge. I will outline the implications of these laws (and proposals) briefly. Firstly, I will examine the way that the entertainment industry has altered technology, making it more vulnerable to attack and loss of data. Doctorow has shown how digital rights management (DRM), that disobey the owner’s orders by refusing to save copyrighted material, endanger privacy. To make DRM work, the owners cannot be given the code of the DRM as they would then be able to circumvent it. However, the fact that this code is hidden within computers causes greater problems in that it prevents computer literate owners from correcting its bugs that can be exploited to access private material: The upshot of this is that, in order to make sure we watch TV in the proscribed [sic] manner, every device with a browser based interface is about to become a reservoir of long-lived, illegal-to-report bugs that can be exploited to attack us in every way imaginable. (Doctorow 2014, 164) In comparison to this example, the privacy breaches associated with the investigation of defamation actions (my other example) look old fashioned. This involves a common legal practice that is incidental to the case law itself. It is not unusual for litigation to involve the use of private investigators, if only to assess the claims regarding the extent of injuries. In McDonald’s v Morris and Steel (1997),13 McDonald’s hired private investigators to infiltrate the political group to which Morris and Steel belonged. In this case, McDonald’s also gained information about them from the Metropolitan police, for which Morris and Steel sued in 1998 and received a settlement and apology in July 2000. It has now come to light that the police themselves had an informant within the London Greenpeace group of which Morris and Steel were members. (As an aside, it is difficult to think

12 13

McDonald’s Corporation v Steel & Morris [1997] EWHC QB 366. Ibid.

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of a greater intrusion upon private life than the situation in which uncover police have long term sexual relations and, in a different case, fathered a child with an activist.) Associated with the problems of the communication of adequate knowledge is the idea that information is a commodity, which itself can reduce the sharing of information that could result in adequate knowledge. I discussed this neo-liberal framework in Chapter 5. The above examples in parts (a) and (b) raise concerns regarding factors that prevent the communication of adequate knowledge (or information that can lead to it), either by failure to respect the person who is conveying the information, discussed in the first section, or by different operations of law (with blasphemy laws replaced by laws such as copyright and defamation, that carry with them methods of technological enforcement or investigation that have adverse affects upon privacy). The protection of privacy also involves worries about increased communication of private information. The examples are well known from the Snowdon leaks (Greenwald 2014), that confirm the existence of mass surveillance of all electronic communications by the security forces. Whereas in the past, particular individuals may be targeted, today all electronic communication can be stored and subject to data mining if there is interest in that person. Surveys (Nippert-Eng 2010) have shown that the knowledge that individuals are subject to surveillance has prompted much anxiety (a sad passion in Spinozist terms, associated with inadequate knowledge). There are a number of ways in which this can be charactered: For Peter Watts, (2015) drawing from biology and evolution, the idea that we are watched by others makes us feel like prey. There are many other ways of looking at this. Given that we are encouraged to view ourselves as if each of us were an enterprise in which we invest, discussed in the last chapter, such fear of privacy invasions prompts risk analysis, along with the emergence of companies whose business is to encourage and profit from this sense of insecurity. It is unsurprising that the consequences of the state and commercial prying into our every electronic communication makes us concerned by the risks, of exposure and humiliation, of fraud and of exploitation. In both cases, they are producing fear and other sad passions. For Spinoza, these passions may be necessary but are not inevitable (Dennett 2004, 56).

Bibliography Althusser, Louis. 1997. “The Only Materialist Tradition, Part 1: Spinoza.” In The New Spinoza, edited by Warren Montag and Ted Stolze. Minneapolis: University of Minneapolis Press. Althusser, Louis, and Étienne Balibar. 1977. Reading Capital. Translated by Ben Brewster. London: New Left Books. Aristotle. 2000. Aristotle: Nicomachean Ethics. Translated and edited by Roger Crisp. Cambridge/New York: Cambridge University Press. Balibar, Étienne. 1994. “Spinoza, the Anti-Orwell: The Fear of the Masses.” In

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Masses, Classes, Ideas: Studies on Politics and Philosophy before and after Marx, 3–38. London: Routledge. Balibar, Étienne. 1997. Spinoza: From Individuality to Transindividuality. Delft: Eburon. Balibar, Étienne. 1998. Spinoza and Politics. Translated by Peter Snowdon. London: Verso. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Berlin, Isaiah. 1993. “A Reply to David West.” Political Studies 41 (2): 297–98. doi:10.1111/j.1467-9248.1993.tb01408.x. Berlin, Isaiah. 2002a. “From Hope and Fear Set Free.” In Liberty: Incorporating Four Essays on Liberty, edited by Henry Hardy, 2nd edn., 252–79. Oxford: Oxford University Press. Berlin, Isaiah. 2002b. “Two Concepts of Liberty.” In Liberty: Incorporating Four Essays on Liberty, edited by Henry Hardy, 2nd edn., 166–217. Oxford: Oxford University Press. Berlin, Isaiah. 2002c. “John Stuart Mill and the Ends of Life.” In Liberty: Incorporating Four Essays on Liberty, 218–51. Oxford: Oxford Paperbacks. Damasio, Antonio R. 2003. Looking for Spinoza: Joy, Sorrow and the Feeling Brain. London: Vintage. Deleuze, Gilles. 1988. Spinoza, Practical Philosophy. Translated by Robert Hurley. San Francisco, CA: City Lights Books. Deleuze, Gilles. 1990. Expressionism in Philosophy: Spinoza. Translated by Martin Joughin. New York: Zone Books. Deleuze, Gilles. 2003. “DELEUZE/SPINOZA Immortality and Eternity.” Translated by Jon Rubin. Pli 14 Spinoza: Desire and Power: 1–20. Dennett, Daniel Clement. 2004. Freedom Evolves. London: Penguin. Den Uyl, Douglas J. 1983. Power, State and Freedom. Assen: Van Gorcum. Den Uyl, Douglas J. 1985. “Sociality and Social Contract: A Spinozistic Perspective.” Studia Spinozana 1 (January): 19–52. Den Uyl, Douglas J. 1987. “Passion, State, and Progress: Spinoza and Mandeville on the Nature of Human Association.” Journal of the History of Philosophy 25: 369–95. Doctorow, Cory. 2014. Information Doesn’t Want to Be Free: Laws for the Internet Age. San Francisco: McSweeney’s. Floridi, Luciano. 2011. The Philosophy of Information. Oxford: Oxford University Press. Fricker, Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press. Gatens, Moira. 1995. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge. Gatens, Moira. 2004. “Privacy and the Body: The Privacy of the Affect.” In Privacies: Philosophical Evaluations, edited by Beate Rossler, 113–32. Stanford, CA: Stanford University Press. Gatens, Moira, and Genevieve Lloyd. 1999. Collective Imaginings: Spinoza, Past and Present. New York: Routledge. Greenwald, Glenn. 2014. No Place to Hide: Edward Snowden, the NSA and the Surveillance State. Penguin. Hampton, Jean. 1997. “The Wisdom of the Egoist: The Moral and Political Implications of Valuing the Self.” Social Philosophy and Policy 14: 21–51.

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Conclusion

In the introduction, I started with a phrase written on a toilet wall: “transparency for the powerful, privacy for the people”, which reflects contemporary concerns about the way that our privacy is threatened, in the mundane roles of employees, consumers and citizens, as well as other, more vulnerable groups. This book is a theoretical intervention into the philosophy of privacy that draws upon different areas of philosophy (political, continental, feminist, history of political thought and philosophy of information). I have demonstrated how our understanding of privacy owes a historical debt to liberal modern political theory of Locke, Kant and Mill but that these perspectives have a challenger in neo-liberal approaches in the US. I have also traced the ways in which our conceptions of privacy are based upon the images we have of “who we are”, our view of selfhood in relation to others and to society. Struggles to defend privacy are therefore embedded in power relationships and are political. Analyses of what is being protected by privacy law still draw upon a gendered image of the domestic home and intimacy, while shifting concern away from the home to focus only upon informational privacy. I consider how philosophy offers fruitful alternatives to modern liberal thought for conceptualising privacy: Floridi’s philosophy of information and my application of Spinoza, the historically marginalised philosopher of communication. As I have now described Spinoza’s philosophy, to demonstrate how his work can produce guidance for thinking about privacy, it is possible to return to summarise earlier arguments and to consider how these positions can be accounted for in Spinozist terms. I also think that there are compatibilities between Floridi’s philosophy of information and Spinozist metaphysics but this will only be touched upon briefly, as their compatibility is complex and removes the focus from privacy.

Setting the scene In Chapter 1, I set the scene by showing how the arguments of a selection of the most influential privacy theorists can be found within the modern

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political thought of Locke, Kant and Mill. It is useful to trace this diverse liberal heritage in detail because, as I show in later chapters, these modern philosophers have different conceptual frameworks, including different views about what it means to be a self. This fuller analyses illustrates the basis for their arguments regarding privacy and what is potentially being ‘bought into’ if any position is accepted without qualification. While these can be crudely described in terms of ownership of privacy (contentiously associated with Locke),1 duty to respect personhood (Kant) and individualistic “experiments in living” (Mill), the more complex elements of their conceptual frameworks are described in later chapters. I started with Judith Jarvis Thomson and Charles Fried. Despite being on different sides of an argument as to whether privacy rights can be reduced to other rights, both share a view of individuals as owners of their privacy. The question of what is at stake if we think of individuals as owners of “property in the person” runs through the book, drawing from Pateman’s argument that it is through contractual exchange of our abilities (treated as if they were commodities) that relationships of subordination are managed in modernity. This is relevant to privacy and surveillance issues in the workplace. It has also shaped the image of the domestic home. In contrast with Thomson and Fried, Ferdinand Schoeman and Edward Bloustein were shown to be in conversation with Kant, drawing upon his argument that respect for privacy is derived from respect for personhood. By analysing this, I was able to question what is entailed in this complex conceptual framework in which personhood refers to the possibility of a self that is fully rational and autonomous (later in Chapter 3). Finally, in Chapter 1, I looked at more recent theorists, Julie Cohen and Alex Pentland, to illustrate how, in very different ways, they are in conversation with Mill. Pentland shares Mill’s aim to increase happiness, along with his insights regarding the strength of peer pressure but envisages the diametrically opposite approach to achieving this aim. Both Mill and Pentland (understandably) consider experimentation important for social progress. Mill famously wanted to minimise legal and social pressure to conform, on the grounds that we can learn from each other as to the benefits and burdens of diverse life choices; with the only constraint being that we do not harm each other. In contrast, Pentland suggests that these experiments are performed on individuals, whose every movement and communication can be analysed by virtue of big data algorithms. As a result, Pentland provides empirical evidence (were it needed) for Mill’s assumption that peer pressure is powerful but employs this insight by

1

For the argument that Locke is wrongly characterised in terms of self–ownership see (Lamb 2010). I consider Locke’s more complex position in Chapter 4.

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suggesting that our colleagues could be employed to nudge us into complying with workplace regulations, or friends could be used to prompt us to live healthily, or be environmentally conscious. As I discuss later in the Spinoza chapter, this may (or may not) produce the required behaviour but it would not increase our adequate knowledge of the world. This is the case even if such “nudging” produced happiness (or joy) because we would remain at the first stage of knowledge, behaving only passively. In the second chapter, I continue to set the scene by considering legal rather than theoretical analyses of privacy in order to understand the idea of domestic life as a separate private sphere. I consider the famous article in favour of privacy protection from Warren and Brandeis (1890), which influenced the US common law, and then examine early common law and codified legal conceptions of privacy, which set the scene for today. Warren and Brandeis, prompted by the development of the Kodak camera and its use by the gutter press, argue for the development of the common law to protect the development of finer sentiments. However, this reference to civilisation and protection of the body ignores some of their contemporaries’ practices involving race and gender that directly related to their arguments. They were examining the precedents to a tort of privacy, available in common law, but failed to mention the existing laws that protected husbands’ privacy at the expense of their wives safety from their husbands. Tort laws, the subject of their concern, followed the criminal laws in employing privacy as a defence to assault and battery in the domestic home, the very “sanctuary” that Warren and Brandeis called upon the law to protect from the gutter press. I also consider the way that race was relevant by drawing upon Osucha’s (2009) analysis of the distinction between portraiture (in which someone is portrayed as self possessed) and the consumption of derogatory images of black persons. Osucha argues that this consumption produced a context in which exposure of white bodies in the press were understood. After tracing the development of the common law, I turned to the European codified tradition to describe Portalis and Savigny’s struggles to portray an image of marriage that was contractual enough to be subject to state power (rather than that of the church) and yet not purely contractual, to avoid the idea that divorce was possible (Vogel 2000). Both draw from the philosophy of their times (Rousseau and Hegel respectively) to argue that marriage was a special sort of contract, thereby ‘squaring the circle’. This ambiguous positioning of women between status and contract can be seen today and rejected in secretaries’ claim for “raises not roses”, to illustrate that women want to be treated as equal workers rather than patronised as office wives, that I discussed later in Chapter 5.

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Autonomy and privacy Having set the scene by examining both the roots of privacy theory in modern political thought and the public/private divide in law, I considered the relationship between autonomy and privacy by returning to examine Kant and Mill in Chapter 3 (which is followed by an analysis of Locke in Chapter 4). I focused upon Kant by comparing his image of independent personhood with his counterparts: the vagrant and the woman. The vagrant, characterised by Castel (2003) as a “negative individual” had a completely private life (and did not answer to anyone) but his/her struggles with nature were not the stuff of the Kantian sublime, with its depiction of a person who can stand up to the might of nature, to follow reason and the moral law. Today’s equivalent of the vagrant is more likely to inhabit the cities and have little privacy, as illustrated by Waldron’s (1991) analysis. In contrast, women are positioned as less autonomous, along with certain tradesmen. I then turned to Battersby’s (1998) analysis of Kant in which she shows that he has an image of a self that is defined by its cut from outside as illustrated by the portrayal of a self that is threatened by (but can stand up to and be separate from) the might of nature. As an alternative, she proposes a conception of self and other as emerging over time. Battersby’s position provides a useful metaphysics for Nedelsky’s (2011) relational autonomy. I examined Nedelsky’s criticism of an image of autonomy, such as that by Kant, and then showed how such an “impossible autonomy” can function as a technique of power in the context of privacy by drawing upon Hull’s Foucauldian analysis. Hull (2014) asks why it is that we have online contracts to give away our privacy that do not actually function as recognisable contracts. It is difficult to say that the parties both accepted the contract – that they were ad idem – when it is clearly impossible for one party read the whole contract. His answer is that these online consent forms reinforce neo-liberal claims that we have such impossible autonomy and that this claim is associated with the treatment of ourselves as if we were companies, owners of our human capital. In Spinoza’s terms, such a view of ourselves as having “impossible autonomy” can be understood as an idea (a fiction) that diminishes us by blocking our powers of acting. However, it is necessary to avoid crude views of ideology. Ideas can be viewed as made up of different parts and so their political impact may be different in different encounters. For example, Kant’s conceptual framework can be radically re-read in Spinoza’s terms. Kant’s view of autonomy may be employed in ways that diminish us, as Hull illustrates in his example of privacy contracts. However, within the same framework, Kant produces arguments that, rather than feeding into neoliberalism, can stand against neo-liberalism. There are central Kantian arguments, such as the idea of duty and respect for others, including the

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privacy of others, which I would characterise as “better fictions” in Spinozist terms. Ideas that help us to increase our powers of acting without adequate knowledge can be characterised as “better fictions” (James, Lloyd, and Gatens 2000). The notion of a “better fiction” can be employed to incorporate Kant’s argument that privacy should be respected on the grounds that this is what is entailed to respect persons. Kant employs a transcendental argument as to how a fully rational being would act. The claim that his vision of autonomy does not exist (and that it can be employed as part of technology of power) does not undermine this argument. This transcendental morality can be replaced by Spinoza’s immanent ethics in which some of Kant’s ideas (about respect for others) could produce joyful encounters, if they help us to live together and increase our powers of acting. However, these ideas do not represent adequate knowledge. They therefore fit within Gatens’ conception of a better fiction, to the extent that they increase our powers of acting ‘on the ground’. This does not prevent the idea of an “impossible autonomy” also acting as a technique of power as described by Hull. In Spinozist terms this would entail a sad encounter between the mind of the person “consenting” and the idea of him/her as having “impossible autonomy”. I end Chapter 3 by briefly introducing an alternative view of relational autonomy, derived from Spinoza (who does not discuss autonomy as such). Recall Spinoza’s image of the transindividual can both function as a singular thing (itself, already made up of other entities) or as part of a singular thing when acting in concert with others. Where the different (temporary) boundaries are drawn therefore depends upon the extent to which this self is participating with others to have an effect on the world (Ethics II.D7). The political question is then whether we are passive or active; whether this grouping increases or decreases our powers of acting. This can be illustrated by returning to the “impossible autonomy”, discussed by Nedelsky. This idea is associated with the image of a man who is not financially or emotionally dependent upon others but arises as a result of unacknowledged debts to others of a different class and gender. He can appear as a single entity while depending upon others who are co-opted in support. Historically, women and workers were not viewed as autonomous because of their positions in terms of status and a power structure which is maintained while also transformed when relations are perceived through contract.

Privacy as property: Locke and Posner The issue of status and contract is taken up in the first part of Chapter 4, on Locke. I explain Pateman’s analysis more fully by considering the fiction of “property in the person” from Chapter 5 Two Treatises of Government (1988). Pateman situates her argument within political theory of self

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ownership, which is the same as “property in the person” and possessive individualism. She argues that these concern the exchange of human abilities (such as labour power and wives’ consortium, i.e. sex and housework) that is exchanged for a wage or protection. Such contracts can only be performed by the individual him or herself and thereby constitute a relationship that is one of subordination. These differ, in that wives were not viewed as owning their own labour power, which belonged to their husbands, historically. Again, this returns us to the question of status and contract, how both involve subordination when property in the person is exchanged, but also differ. Both are intimately related to struggles over the privacy of the weaker party. This struggle can be envisaged in terms of current worries that employers can access employees at all times of day, as illustrated by Nippert-Eng (2010), in which employees detail their attempts to draw lines in the sand, such as avoiding emails or phone calls at weekend. The question of access occurs within the workplace itself in which women are often in the position of adjunct workers who control access to a higher status employee. Historically, Virginia Woolf’s claim for a “room of one’s own” can be viewed as a privacy claim, given that the “private sphere” of the home was not private for wives. In the context of the domestic home, the issue of rape within marriage is more serious but it can be also viewed as the highest level of privacy violation; of access to a person at the most intimate level. As Nedelsky argues, in the context of her analysis of autonomy and law, the state is not neutral when it fails to intervene to stop violence within the domestic home. It is simply regulating the relationship by another means. I then explored Locke’s conception of self by bringing together two philosophers from different areas of philosophy: history of political thought (Coleman 2005) and continental philosophy (Balibar 2013). They independently draw upon both Locke’s political work and his view of selfhood from the Essay Concerning Human Understanding (1993) to produce nuanced positions on Locke’s selfhood. I demonstrated that their analyses of Locke are compatible and useful for thinking about privacy. Employing both positions, Locke’s self can be described as having a duty to God to survive by appropriating both food and ideas by working upon them (Coleman). This self also appropriates itself to itself (Balibar). Balibar describes a subtle performative contradiction in Chapter 27 of Locke’s Essay that demonstrates the idea of a self that appropriates and one that is appropriated, while also being the same self. The appropriation of the self is the work that is done by the use of memory to produce a narrative of what one is conscious of having done and thought. I combined these ontological positions and argue that they are also consistent with Pateman’s analysis of “property in the person”, which is a politico-legal fiction rather than a conception of self.

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Locke produces a curious image of boundaries and of privacy in his image of selfhood. Given that selfhood is established as a result of memory and consciousness (rather than what any entity does to survive and thrive, as in Spinoza), Locke envisages the possibility of two selves within one body: the Day Man and the Night Man. Like the later Jekyll and Hyde, the Day Man can only recall what he does during the day and has no access to the consciousness and memory of the Night Man and vice versa. Whereas Kant may draw a boundary against the outside, discussed in the previous chapter, Locke opens up the idea of internal boundaries – the possibility that parts of oneself (or consciousness) cannot access other parts. This “internal privacy” speaks to Nagel’s (1998) concern that we may police ourselves to such an extent that we suppress our view points, although the argument is now viewed in psychoanalytic terms. Today, when memory is extended by technology resulting in memory being a default position for the first time, this idea raises the possibility of others having a more reliable memory of someone’s life story (Mayer-Schönberger 2009). Locke’s image of the individual who appropriates both food and ideas into itself is envisaged in terms of a movement from the outside to the inside of the self. This can be compared with Spinoza’s image of encounters between other minds and our mind, other bodies and our body. Spinoza’s encounters are envisaged as central to our thriving, performing the same work as Locke’s view of appropriation. However, unlike Locke and his duty to God to preserve ourselves, Spinoza stresses the importance of change as we gain greater adequate knowledge (of why encounters increase or decrease our powers of acting) allowing us to combine with others (and other things) in joyful ways that further increase our powers of acting and understanding. Coleman concludes that Locke’s image of a self as an individual appropriator, who still has a duty to others, can retrospectively be viewed as transitional from earlier views of common decency as a public rather than a private virtue. Locke would not agree with the neoliberal ‘devil take the hindmost’ approach based upon the free market. For Locke, the market was supposed to fulfil our duty to others by increasing the common wealth. It should not be used to argue that we can allow others to starve, given our duty to God to preserve others as well as ourselves. In Chapter 5, I turn to neo-liberal conceptions of privacy, in which any Lockean duty to others has been dropped. Posner, as part of the law and economics movement, applies his view of human relationships and their abilities as if they were commodities to privacy, an application which is already present in liberalism. The difference – aside from the lack of any moral concern – is that there is an extension of the areas of life that are subject to market analysis. With Becker (1962; 1976), the market “grid of intelligibility” comes to be applied to all areas of human relationships. Posner (1978) envisages a market in privacy and one in prying, which leads him to justify, “transparency for individuals and secrecy for corporations

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and the powerful” to misquote the call with which I introduced the book. I argued against his idea that prejudice is self-correcting, which forms part of his justification for the continued communication of prejudicial information about individuals. I also looked at the extent to which individual privacy and corporate openness can be argued from within Posner’s own framework before turning to criticisms of the framework itself. His position on privacy is inconsistent with diverse ethical positions, of course, but I concentrate on the implications of extending commodification into more areas of life. This marks a concern that also raises issues of status and contract. While generally sympathetic with Radin’s (1996) argument against commodification, I also find compelling Case’s (2005) illustrations of situations in which women have emphasised their professional role to avoid being treated worse in accordance with status. These examples are important in that they involve struggles over privacy in relation to women’s ambiguous position, something that falls from view if concerns over privacy are defined such that the historical public/private divide concerning the domestic sphere is no longer viewed as relevant to privacy. The fact that this background is still relevant is shown by the example of secretaries’ claims for “raises not roses”; that they are not to be viewed in terms of the status that linked them with the home. This is not merely reflective of employer’s power against employees. For example, the elderly may try to preserve their privacy (and dignity) by stressing a contractual rather than familial relationship, when their privacy is threatened by their employed care workers. These cases show that people do not live in strictly delineated worlds of commodified (public) and non-commodified (private) spheres of life, as Radin’s analysis of “incomplete commodification” shows. People try to employ these different ways of viewing relationships to preserve their privacy from those who threaten it. Similarly, I provide an alternative possible explanation to Sandel’s (2012) analysis of the case when a Swiss village, which initially voted to take a nuclear waste site in their community but who refused when money was offered. Contra Sandel, I argue that they did not necessarily shift from a clear motivation based upon duty to a commercial relationship (although there are plenty of examples when this occurs). It was more likely – given their stated concerns about bribes – that these villages were worried that later generations would think that they sold out their village, if they accepted money to have the nuclear waste site. In other words there was a shift of allegiance from their expressed duty to the country to one of the village. My point is that there are situations when people do not want money but are concerned with other values. They can also use the idea of a commercial relationship to protect their privacy or to avoid being belittled as “office wives” as in the case of secretaries. It is not so simple as to think that money just shifts relationships from one fixed commercial

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framework to one that is uniformly non-commercial. This said, the concerns of Titmuss, Radin and Sandel are valid and important in that greater commodification has more of a detrimental effect on those with less money and changes the nature of relationships often for the worse. This point is important to consider in terms of privacy because the interplay between discourses of the market and status – and the possibility of other ways of relating – is intertwined with struggles over privacy.

Spinoza applied to commodified views of privacy Having looked at Spinoza in more detail, I now want to consider how Spinoza’s thought is useful to consider in the context of Posner’s market mentality, discussed in Chapter 5. Neo-liberal thought, which applies the market to all areas of life, is not false. It is a partial knowledge and represents a way in which it is possible to think about oneself in this society. However, it is not the only way. Adequate knowledge would require an explanation of why that is the case, along with the fact that there are many alternative ways of viewing ourselves. Spinoza allows us to think about the correspondence between the ideas of neo-liberals (such as those of Posner on privacy) and the corresponding bodily actions that we take. Recall that, for Spinoza, mind does not cause the body to act or vice versa. Ideas impact upon our minds and bodies upon our bodies. Both types of encounter alter our ability to thrive as a whole entity. It therefore makes sense to someone in a market society to think of themselves as human capital because this idea corresponds to his or her daily actions. The market mentality does not cause the individual to take certain actions within particular material conditions or vice verse. They act in parallel, just as mind and body are separate attributes of the same substance. This provides a different way of thinking of ideology, which does not envisage it as false consciousness but as encounters of minds with minds and corresponding bodies with bodies.2 My application of Spinoza provides grounds for criticising Posner’s market approach that differs from those of Titmuss, Radin and Sandel discussed so far. To recap and simplify, all have good points: Titmuss was concerned that commodification drives out altruism; Radin, that a market in which more things are commodified will adversely affect the objects that are commodified and by extension what it is to be a person. She adds that there are relationships of incomplete commodification, which could be humanised. Sandel (2012) has summarised his concern that the extension of markets into some areas of life will have two effects: first, it will be unfair because the poor will be adversely affected, for example by having the rich

2

For the application of Spinoza to situate “political economy”, as imaginary, at the first stage of knowledge, see Balibar’s work in (Althusser and Balibar 1977, 258).

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queue jump in areas of health (an empirical claim for which there is evidence); and second, that it is corrupting to introduce the market into certain areas of human life. In this, he follows Titmuss and relies upon the experiments discussed to illustrate how non-market motivations can be “crowded out”. The term “corruption” is an interesting choice. The image is of finer motives being sullied by the market and with them the possibility of behaving decently to each other. In place of Sandel’s view of corruption, Spinozist thought would situate his analysis in terms of our ability to thrive (and in some cases to survive), which are undermined by certain ways of life; that neo-liberalism produces both ideas and actions that diminish our powers of thinking and acting. This is more hopeful in that it is both reversible and highlights daily encounters rather than a blanket ideology. In contrast to the idea of corruption, Spinoza thinks of us as constantly trying to increase our powers of acting (and hence our freedom and ability to be active rather than passive in the world) and sometimes failing. What Sandel terms as “corruption” is borne of inadequate knowledge of ourselves, as part of nature and part of other social relations. From a Spinozist perspective, Posner provides an argument that undermines the transfer of information of companies that may be important in gaining adequate knowledge, such as medical cures. Conversely, humiliating people in ways that are associated with hate speech may perpetuated sad passions without increasing adequate knowledge and in Spinozist terms therefore perpetuate irrationality (see Richardson 2014). As such, neoliberalism functions, with regard to privacy, in the same way as superstition. It has the potential to block people from their powers of acting and understanding. The question arises as to whether a market mentality has the potential to drive out other ways of thinking. Given that such a society does not allow the majority to thrive then, like superstition, it is necessarily unstable. The minority (who only appear to be the winners in neo-liberal terms, such as the rich) also suffer when others are blocked from thriving, as explained in Chapter 7.

Reconceptualising privacy In the final two chapters, I started with Floridi (2011; 2013; 2014) and then moved to Spinoza (2007; 1985; 2002) to consider fruitful conceptual frameworks through which privacy can be rethought today. I explained Floridi’s ontological framework in order to understand his approach to privacy. As with modern political theory, his conception of privacy depends upon his conception of self in relation to others, which is captured by his analysis of our having an “informational nature”. The idea that personal information is part of “who we are” allows him to employ a different way of thinking of “invasions” of our privacy. Instead of the metaphor of trespass that is

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associated with “invasion” of privacy, he characterises attacks on our privacy as akin to kidnap. I find this analysis compelling. Some personal information is so linked to our selves that to take it out of context can be devastating. Once this view of ourselves as informational is demonstrated, such an action is more akin to an offence against the person rather than theft. In this situation, someone’s image or information is copied and placed out of context. Drawing from his analysis of telepresence, Floridi envisages someone pulling the victim’s information from the victim’s realm into their own. In this situation the problem is not that the victim is deprived of their information but that part of their self is copied, taken and exposed elsewhere, outside their domain. This scenario can be contrasted with theft of an important diary on which someone with early dementia relies. In this case, it is the deprivation of something that is either scaffolding for, or a part of cognitive processes, that is the offence. If this were to be published then both ‘offences’ would occur. In his illustration of how architecture (offline as well as online) can change our informational environment, Floridi draws together the idea of privacy as: (1) the inverse of flows of information; and (2) the idea of privacy associated with domestic space. His thought experiment is of a student house in which the walls become transparent. This example also highlights the relevance of human abilities that interact with the environment, given that a house of blind students would not be affected by the walls becoming transparent. I end by discussing Floridi’s conception of self, starting with his evocative conjecture on the evolution of information, which resonates with Dennett’s (1992) analysis of consciousness, and by also comparing Floridi’s homo poesies with Arendt’s (1958) homo faber. There are important linkages between philosophy of information and Spinozist framework, some of which takes me outside this focus upon privacy, to think about the possibility of a conceptual framework in which Information is treated as an attribute of substance, akin to Thought and Extension. This requires a separate paper, to deal with a number of problems that arise regarding the way that adequate knowledge employs information. This is problematic, given that modes of different attributes cannot affect each other. To ensure compatibility may involve altering the way that we think about ideas and information. I feel that this would be a useful move in thinking about Floridi’s structural realism.3 Floridi focuses upon the importance of information flow and our “informational nature” whereas Spinoza can be viewed as the philosopher of communication (Balibar 1997). It is important to recognise that Spinoza’s “adequate knowledge” should not be viewed just in epistemological terms,

3

For an analysis of Floridi and Spinoza see Hongladarom (2008). Floridi recognises the link between his work and that of Spinoza (2013). This will be the subject of a later paper.

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such that we just increase our store of knowledge. Adequate knowledge changes us, allowing us to thrive, to be more virtuous and free. This is not the negative freedom of the right to be let alone (that acts as both a definition of freedom and Warren and Brandeis’ definition of privacy). In place of the idea that autonomy is based upon our separation from others, Spinoza produces a framework in which freedom is based upon our ability to increase our powers of acting in the world; our adequate knowledge of our encounters. To achieve this, nothing is more useful to us than each other. Hence, anything that blocks our ability to communicate adequate knowledge is particularly serious, whether this blockage arises from laws or social relations such as prejudice that silences particular groups or prevents them from being heard. In contrast with Locke’s image of appropriation of food and ideas, discussed in Chapter 4, these parts of nature (under the attributes of Extension and Mind) interact with us and change us, either diminishing us or helping us thrive. The different ways in which privacy has been conceptualised can be situated in Spinozist terms. For Spinoza, there is no mind/body split. Instead, ideas including the ideas of what privacy means are the mental correlates of our bodily actions. This framework was applied to neo-liberalism above and can be applied more generally to privacy theories. It is not that we envisage privacy in a particular way and alter our material practices accordingly, nor is it that our ideas simply derive from material practices as if they could be separated. Spinoza undercuts the conception of an individual who could use will power to tell their body what to do. Spinoza’s position answers the concerns of both Nedelsky (2011) and Julie Cohen (2012) that we cannot be envisaged as completely independent of our culture but nor are we simply manipulated by others. Spinoza can therefore provide a way of conceptualising “ideology” that does not rely upon an image of someone crudely being subject to mental manipulation. The more that we are able to communicate adequate knowledge or information, the more we are able to increase the encounters with others that further help us to thrive through change. This Spinozist framework offers guidance of how to approach struggles in relation to privacy, by asking how we can think about and (in parallel) act out privacy, in ways that increase our powers of understanding and acting.

Bibliography Althusser, Louis, and Étienne Balibar. 1977. Reading Capital. Translated by Ben Brewster. London: New Left Books. Arendt, Hannah. 1958. The Human Condition. Charles R. Walgreen Foundation Lectures. Chicago, IL: University of Chicago Press. Balibar, Étienne. 1997. Spinoza: From Individuality to Transindividuality. Delft: Eburon. Balibar, Étienne. 2013. Identity and Difference: John Locke and the Invention of

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Consciousness. Edited by Stella Sandford. Translated by Warren Montag. London: Verso. Battersby, Christine. 1998. The Phenomenal Woman: Feminist Metaphysics and the Patterns of Identity. London: Routledge. Becker, Gary Stanley. 1962. “Irrational Behavior and Economic Theory.” Journal of Political Economy 70 (1): 1–13. Becker, Gary Stanley. 1976. The Economic Approach to Human Behavior. Chicago, IL: University of Chicago Press. Case, Mary Anne. 2005. “Pets or Meat.” Chicago-Kent Law Review 80: 1129–50. Castel, Robert. 2003. From Manual Workers to Wage Laborers: Transformation of the Social Question. Edited and translated by Richard Boyd. New Brunswick, NJ/London: Transaction Publishers. Cohen, Julie E. 2012. Configuring the Networked Self: Law, Code, and the Play of Everyday Practice. New Haven, CT/London: Yale University Press. Coleman, Janet. 2005. “Pre-Modern Property and Self-Ownership Before and After Locke: Or, When Did Common Decency Become a Private rather than a Public Virtue?” European Journal of Political Theory 4 (2): 125–45. doi:10.1177/ 1474885105050446. Dennett, Daniel Clement. 1992. Consciousness Explained. London: Allen Lane. Floridi, Luciano. 2011. The Philosophy of Information. Oxford: Oxford University Press. Floridi, Luciano. 2013. The Ethics of Information. Oxford: Oxford University Press. Floridi, Luciano. 2014. The Fourth Revolution: How the Infosphere Is Reshaping Human Reality. New York/Oxford: OUP Oxford. Hongladarom, Soraj. 2008. “Floridi and Spinoza on Global Information Ethics.” Ethics and Information Technology 10 (2–3): 175–87. doi:10.1007/s10676-008-9164-8. Hull, Gordon. 2014. Successful Failure: What Foucault Can Teach Us About Privacy SelfManagement in a World of Facebook and Big Data. SSRN Scholarly Paper ID 2533057. Rochester, NY: Social Science Research Network. 10.2139/ssrn.2533057. http://papers.ssrn.com/abstract=2533057. James, Susan, Genevieve Lloyd, and Moira Gatens. 2000. “The Power of Spinoza: Feminist Conjunctions.” Hypatia 15 (2): 40–58. doi: www.jstor.org/stable/ 3810654. Lamb, Robert. 2010. “Locke on Ownership, Imperfect Duties and ‘the Art of Governing.’” The British Journal of Politics & International Relations 12 (1): 126–41. doi:10.1111/j.1467-856X.2009.00397.x. Locke, John. 1988. Locke: Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press. Locke, John. 1993. An Essay Concerning Human Understanding. Edited by John W Yolton. New edn., abridged/abridged and edited by John W. Yolton. London: Dent. Mayer-Schönberger, Viktor. 2009. Delete: The Virtue of Forgetting in the Digital Age. Princeton, NJ: Princeton University Press. Nagel, Thomas. 1998. “Concealment and Exposure.” Philosophy & Public Affairs 27 (1): 3–30. doi: www.jstor.org/stable/2672839. Nedelsky, Jennifer. 2011. Law’s Relations a Relational Theory of Self, Autonomy, and Law. New York: Oxford University Press. Nippert-Eng, Christena E. 2010. Islands of Privacy. Chicago, IL: University of Chicago Press.

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Osucha, Eden. 2009. “The Whiteness of Privacy: Race, Media, Law.” Camera Obscura 24 (70): 66–107. doi:10.1215/02705346-2008-015. Posner, Richard A. 1978. “An Economic Theory of Privacy.” Regulation 2: 19–26. Radin, Margaret Jane. 1996. Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things. Harvard University Press. Richardson, Janice. 2014. “Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy.” Feminist Legal Studies 22 (3): 225–41. doi:10.1007/s10691-0149271-3. Sandel, Michael. 2012. What Money Can’t Buy: The Moral Limits of Markets. London: Penguin. Spinoza, Benedictus de. 1985. The Collected Works of Spinoza, Volume I. Edited and translated by Edwin M. Curley. Princeton, NJ: Princeton University Press. Spinoza, Benedictus de. 2002. “Political Treatise.” In Spinoza: Complete Works, edited by Michael L. Morgan, translated by Samuel Shirley. Cambridge: Hackett. Spinoza, Benedictus de. 2007. Theological-Political Treatise. Edited by Jonathan Irvine Israel. Translated by Michael Silverthorne and Jonathan Irvine Israel. Cambridge/New York: Cambridge University Press. Vogel, Ursula. 2000. “Private Contract and Public Institution: The Peculiar Case of Marriage.” In Public and Private: Legal, Political and Philosophical Perspectives, edited by Maurizio Passerin d’Entreves and Ursula Vogel, 177–99. London/New York: Routledge. Waldron, Jeremy. 1991. “Homelessness and the Issue of Freedom.” UCLA L.aw Review 39 (2): 295–324. Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220.

Index

adequate knowledge 163–86, 201–2; laws that undermine the communication of 184–6; state position on 177; transmission of 168–71, 182–4 Adorno, Theodore W. 131 aesthetics 166 Agamben, Giorgio 46 alcohol abuse 34–5 Althusser, Louis 93 altruism 121, 122, 123 animal laborens 156 Anthropology (Kant) 57 anthropomorphism 164 appropriation 24 Archard, David 126 architecture: political implications of 143 Arendt, Hannah 53, 58; active life 155–6; human relations 65 Aristotle 156n14 Arrow, Kenneth 84; blood donation market 121, 122; commodities 128; defence of economists 119; economists’ view of human attributes 127; ethical behaviour as commodity 125–6; truthfulness in the markets 123 art: dynamic sublime 56–7 artificial intelligence (AI) 145 attributes, human: commodification of 15, 119, 126–30 audit society 149 autonomy 4–5, 194–5; courageous displays of independence 57–8; of humans 20–1; influence of dominant culture 54; Kantian view 55–6, 56–60, 61–2, 63; masculine 64;

Mill’s view 55, 58; socialisation 64; see also relational autonomy Baier, Annette 23 Balibar, Étienne 3, 5; appropriation in Lockean concept of self 93, 96; interpellation 94; Lockean self 93–6, 196; on Spinoza 162; transindividuals 75, 173 Bartky, Sandra Lee 132 Battersby, Christine: Kantian autonomy 56–60, 194; selfhood 19 Becker, Gary Stanley 70; human capital 132 behaviour: commodification of ethical behaviour 125–6; impact of financial incentives, case studies 121–3, 124 Bell, Gordon 97 Benjamin, Walter 149 Bentham, Jeremy: Panopticon 143 Berlin, Isaiah 174; state position on adequate knowledge 177; value pluralism 179 Best v. Samuel Fox & Co. Ltd. (1952) 83 big data 28–9 bigotry 112–13 Birth of Biopolitics, The (Foucault) 68 blackmail 118–20 Blackstone, Sir William 101 blasphemy laws 184–5, 186 blood donations 120–1, 122, 123 Bloustein, Edward J. 192; “An Answer to Dean Prosser” 23; gendered invasions of privacy 23; human dignity and individuality 24–5, 25–6, 27 bodily boundaries 73 body: integrity 13; property rights 12–13

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Index

boundary metaphors 64–5, 66, 67, 75 Brandeis, Louis D. 23, 24; development of common law 41–2; feelings, protection of 41, 42; press intrusion 42, 115; privacy in the family home 37, 193; reputation, protection of 41, 193; tort law 33, 37 bribery 124 Brown, Wendy 63 Campbell v MGN Ltd. (2004) 117 canon law 46 capital: human 102, 132 capitalism: characteristics of the subject 27 Case, Mary Anne 85, 107–8, 198; incomplete commodification 128–9; market need and money 127 Castel, Robert 48, 50; vagabond 61; waged labour 62–3 categorical imperatives 21, 55; rationality of 56 Catholic Church: and marriage 45; marriage as sacrament 46 Cavarero, Adrianna 96–7, 100 CCTV cameras 62 celebrity lives 114 census: government paying for information 125 charity: pre-industrial France 61 Chicago Law School 69, 132 Christian church: and marriage 46; marriage as sacrament 46 citizens’ rights 37 civilisation: development of 42 Clark, Andy 147–9 class: covering differences in power 39; press intrusion 42; shame of wife beating 39; social disgrace of middle/upper class men 40–1 cognition 147–9 cognitive dissonance 98 cognitive membrane 154 Cohen, Gerald 84 Cohen, Julie 202; autonomy 74–5; liberal subject 27; liberty 27–8 Coleman, Janet 3, 5; Lockean concept of self 88–93, 197; modern selfownership 90; role of appropriation in Locke 91–2; self-ownership 43–4 commodification: blood donation market 120–1, 122, 123; of ethical behaviour 125–6; of human

attributes and endeavours 15, 119, 126–30; of human relations and obligation 121–3; incomplete 126–7; market approach to privacy 108; new markets 126; objects for exchange 126–7; and time 131; see also markets; Posner, Richard; Titmuss, Richard commodities: and privacy 130–3 commodity fetishism 61–2, 64 common law: development 41–2; privacy in 34–8 common shareable attitude 39 companies: defamation law 185; employees’ timesheets 130–1; employment contracts 117; information asymmetry 117; lobbying 116–17; manipulation 125; selling employees’ personal information 147; trade secrets 116 Comparative Law and Economics (Mattei) 119 computers: information storage 154 conatus 165, 167, 174 consciousness 96, 98 consciousness membrane 154 consent: in marriage 46–7; online consent forms 54 constitutive relationships 64, 65 contemporary discourse 89 contested commodities 126–30 contracts: employment 83, 117; marriage 46–7, 48–9, 193; online 68–9, 70–1; slave 85; subordination 50 Copernicus 145 copyright 185 corporeal membrane 154 coupling-constitution fallacy 148 courage 57 creativity: human 156; online 157 crime: Kantian approach 21 Critique of Judgement (Kant) 56 Critique of Pure Reason (Kant) 58 culture: dominance over individuals 54 cyborgs 149 Darwin, Charles 145 data: collection 28, 29; inside the body analysis 144; rights to private data 71 Day Man 98, 197 defamation 41, 185 Deleuze, Gilles 168, 172

Index democracy: workplace 86 Dennett, Daniel 149–50 Descartes, René 163 de Witt brothers 178, 179 digital rights management (DRM) 185 digital technology: impact on the informational environment 140 dignity 21, 39; Bloustein on 24–5, 25–6, 27 disabled persons 143 disaffiliation 61 discretion 113 discrimination 110, 111; unfair 117 divorce 46, 47; law in Prussia 48 Doctorow, Cory: digital rights management (DRM) 185; sabotage 7 domestic home see family home domestic violence: husbands immunity from prosecution 34 Douglas v Hello! Ltd (no 8) (2007) 25 duty: and autonomy 55 ecclesiastical law 47 echo chamber 29 economic man 101–2 economics: Foucauldian analysis 70, 101–2 Eighteenth Brumaire of Louis Bonaparte, The (Marx) 65 Elements of the Philosophy of Right (Hegel) 49 employees: ownership of labour power 83; owners of human capital 67, 70, 102; self-monitoring 130–1; selfownership 44; voicing opinions 88 employers: surveilling employees 87, 88 employment: contracts 83, 117 Enclosure Acts 90 Enlightenment: characteristics of the subject 27; development of civilization 41; Radical 76, 161 enterprise: individuals viewed as 71, 74, 81, 102, 132 entertainment industry 185 environment: altering 141, 142; built-in injustice 143; and cognition 147–8; dumb environments 148–9; information 140; online 142; political issues 142–3 An Essay Concerning Human Understanding 3

207

essence 176–7 ethics 137–8, 142; immanent 171–3, 181–6 Ethics (Spinoza) 164–5, 166, 168, 169, 175 European Court of Human Rights 67 European law: individual consent 46; meaning of marriage 45 evolution 153–4 existence 164–5 experimentation in living 28, 55 exploitation 147 extended mind theory 148 Extension 163–4 Facebook: monitoring disclosures 71; surveillance mechanisms 144 family government 38 family home: loss of privacy 36; privacy in 35; Rousseau’s view 47 feelings 41, 42, 60 feminist philosophy 3; women’s subordination in marriage 45 Filmer, Robert 80 fines 122, 123 finite modes 164 First Treatise (Locke) 80 Floridi, Luciano: conception of self 153–7; definition of humans 133; ethics 137–8, 142; homo poeisis 156–7; inforgs see inforgs (informational organisms); informational nature of human beings 145–7, 154; informational nature of selfhood 146; informational structural realism 141; infosphere see infosphere; kidnapping 146, 149, 150–2, 200–1; levels of abstraction (LoA) 151; privacy breach 11; right to be forgotten 154–5 Foucault, Michel: grid of intelligibility 102–3, 119–20, 124, 126, 132; homo economicus 70; neoliberalism 69–70, 100; Panopticon 143–4; power 68; process of “who we are” 144–5; property in the person 127; social contract 101; subject of interest 101–2 Fourth Revolution (Floridi) 145, 154–5 Fox, Alan 149 freedom 175, 176, 178–9, 180 free speech 179, 184–5 free time 131

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Index

free will 114–15 French Revolution 47 Frey, Bruno S. 123 Fricker, Marilyn 112 Fried, Charles 10; entitlements of privacy 83; humans as atomistic individuals 15–16; knowledge as commodity 15; property in the person 14–15, 19, 192; respect for personhood 20; ubiquitous surveillance 20 Friedman, Marilyn: constitutive relationships 64, 65; masculine 64; moral and personal autonomy 64 friendship 113; markets in 109, 112, 113; opportunity cost 113 Fulgham v. State (1871) 39 Galton, Francis 43 game playing 124 Gatens, Moira 181, 195 GCHQ (Government Communications Headquarters): sabotage 7 gestalt switch 127, 143 Gneezy, Uri 121, 123 goals see life goals Goffman, Irving 26 Golden Bowl, The (James) 36, 38–9 Gonzales v Google Inc. (2014) 99 gossip columns 114, 115–16 government: laissez-faire approach 101, 102; managing the conduct of people 144; paying for census information 125; sale of private information 125 Greenpeace 185 grid of intelligibility 102–3, 119–20, 124, 126, 132 groupthink 29, 59–60 guardians 58 Guattari, Félix 172 guilty secrets 110, 116 Hampton, Jean 40, 112; approaches to ethics 172 Hanaford, The Rev. Phebe A. 41 Harvard Law Review 23, 33 Hegel, Georg Wilhelm Friedrich: marriage 48–9 heterosexual couple 94 Hobbes, Thomas 124; distinction from Spinoza 172–3 homeless 61

homo economicus 70 homo faber 156 homo poeisis 156–7 homosexuality 183–4 housewives see wives Hull, Gordon 5; corporate secrets 116; online consent forms 54; online contracts 68–9, 70–1, 194; paradox of privacy 68; privacy and neoliberalism 67–72 human attributes: commodification of 15, 119, 126–30 human capital 67, 70, 102, 132, 199 Human Condition, The (Arendt) 155, 156 humanity: active life 155–6; Floridi’s characterisation of 145–7 human relations 65 husbands: damage to reputation 35; immunity to battery 34, 35; prerogative 35 ICT (information and communication technologies): ethical approaches 137; radical changes in communication 140 identity 95 identity theft 147 image: two types of 43 inadequate knowledge 165–6, 178, 179 incomplete commodification 126–7, 128 independence: social context 57–8 individual choices 100–1 individualism: Bloustein on 24–5, 25–6, 27; and human dignity 24–5, 25–6; perceptions of “who we are” 19; property in the person 12, 15, 19; threats to 30 individuals: as ends in themselves 20; identity 95; life goals 22; social obligations 125; and society 170–1; viewed as enterprise 71, 74, 81, 102, 132 inforgs (informational organisms): definition 145; human ownership of information 145–6; informational nature 146 information: about friends 113–14; asymmetry 117; concealment of 108; exchanging 16–18; ‘going viral’ 117; government sale of private information 125; informational

Index nature of human beings 145–7; informational structural realism 141; semantic 141; spread of adequate knowledge 182; see also Floridi, Luciano; inforgs (informational organisms) informational agents 145 informational entities 145, 146 informational nature 145–7, 154 informational organisms (inforgs) see inforgs (informational organisms) informational privacy 87, 88, 118 information asymmetry 117 information flow: concept of 141; inverse relation to privacy 140 Infosphere: definition 139–40 infosphere 138; definition 139; information transfer 145; re-ontologizing 139–45 Inness, Julie: definition of privacy 34 instrumentalism 123 International Society for Presence Research 150–1 interpellation 93–4 intimacy: definition of 34; exchange of property in the person 16–18; exchanging information 16–18; loss of privacy 17 intrusion 24 Irigaray, Luce 94–5 irrational judgements 110–11 Islands of Privacy (Nippert-Eng) 66 Israel, Jonathan Irvine 76, 161 James, Henry 36, 38–9 Jane Doe v Australian Broadcasting Corporation (ABC) 99–100 Jegen, Reto 123 Judgement Day 95, 97, 98, 101 judiciary: commitment to equal moral worth of persons 40; maintaining the status quo 35; sanctioning wife beating 35 Kant, Immanuel 20; autonomy 55–6, 56–60, 61–2, 63, 194–5; courage as a masculine virtue 57; courageous displays of independence 59; and crime 21, 40; dignity 39; dynamic sublime in art 56–7; feelings 60; guardians 58; humans and property 11; marriage 18–19; moral actions 60; persons as ends in themselves 20,

209

22; privacy 21; property in the person 49–50; rationality and reason 20–1; respect for personhood 20–1, 53; selfhood 58; transcendental self 153, 154, 195; universal maxims 22; vagabond 61; women 62 Keynes, John Maynard 92, 115 kidnapping: breach of privacy 146, 149, 150–2, 200–1 Kisner, Matthew J. 171 Klever, Wim 76 knowledge: adequate 163–86; as commodity 15; Spinozist view 162, 163 Kodak 43 Ku Klux Klan 40 labour: central importance to human life 92; challenges to prevailing view of 92; and nature 82; ownership 82; and property 82 labour power: alienation of 85; as commodity 82; employees’ ownership of 83; Lockean view 91–2; subordination 84 laissez-faire 101, 102 laws of nature 164, 171 leisure time: self-monitoring 131 levels of abstraction (LoA) 151 liberal canon 10–11 liberalism 48 liberals: self-ownership 15 liberal subject 27 liberty 27–8 life goals 22, 23 life stories 96–100 Locke, John: divorce 47; duty to others 90; God’s dominion over man 90; God’s will 85; life stories 97; property and labour 82, 83; responsibility 95; rightful use of property 90; role of appropriation 91–2, 93; self, concept of 88–96, 98, 100, 196–7; selfdefining self 100; self-ownership 89–90; slavery contract 85; uneasiness 96; view on suicide 90 MacPherson, Crawford Brough 82 manipulation of beliefs 179–80 Mantovani, Giuseppe 152 For Manual Workers to Wage Labourers: Transformation of the Social Question (Castel) 50

210

Index

markets: blackmail 118–20; discrimination 110, 111; financial incentives, case studies of impact on behaviour 121–3, 124; in friendship 109, 112, 113; irrational judgements 110–11; marriage 109; nuclear waste storage, Swiss village 124; regulation of 111; suppressing information 121, 123; truthfulness 123; value of human relationships 108 marriage: consent 46–7; contract 45, 46–7, 48–9, 193; exchange of access to sexual organs 18–19; fictional consent 46; gay 45; market analysis of 109; neoliberal approach 127; rape within 14, 15; sacrament 45, 46; voluntary agreement 45–6; women’s subordination 45 Marx, Karl: human commodification 15; human relations 65; labour 92 masculine autonomy 64 Mattei, Ugo 119 matter 153, 156–7 Mayer-Schönberger, Viktor 98–9 Mayo, Elton 29 McDonald’s v Morris and Steel (1997) 185 membranes 153–4 memory: positive moods 99; reconstitution of 99; repression 98; and technology 99 Metaphysics of Morals, The (Kant) 18, 49–50 Milgram, Stanley: obedience experiments 59 Mill, Harriet Taylor 55 Mill, John Stuart: autonomy 55, 58; compatible values 179; “experiments in living” 28, 192; individuality 26; liberty 27–8; opinions 177, 177n10; public/private split 30; social pressure 28; suppression of ideas 29 Montag, Warren 175 moral actions 23, 60 morality: and personhood 21; and reason 55 moral rights 12 Morgan, Sally 183 Morris, David 185 mug shots 43 My Place (Morgan) 183 Nagel, Thomas 17n4; cognitive dissonance 98; common shareable

attitude 39; loss of privacy 36, 197; promoting discretion in power relations 39 Napoleonic Code 47 National Security Agency (NSA) see NSA (National Security Agency) nature: laws of 164, 171; and the sentimental family 47; threat of 56 Nedelsky, Jennifer 202; influence of dominant culture 54; metaphor of boundaries 64–5, 66, 67, 75; relational autonomy 63, 65–7, 194, 196; view of selfhood 75 negative freedom 180, 181, 202 negative individual 61 neoliberalism 101–2, 199; definition 108; Foucauldian view 69–70, 100; and marriage 127; standards of truth 119–20 Night Man 98, 197 Nissenbaum, Helen 99 Nozick, Robert: slave contract 85 NSA (National Security Agency): sabotage 7 Nussbaum, Martha 127 oaths 46 obedience experiments 59 object of gratification 19 objects for exchange 126–7 online contracts 68–9, 70–1 online environments 142 opportunity costs 113 Osucha, Eden 42, 43, 193 Overseers of the Poor (Gilliom) 63 Panopticon 143–4 paradox of privacy 68 Pasquale, Frank 116 passions 114; joyful 167; sad 165, 171, 175, 179, 182, 183, 184 passive citizens 57–8 Pateman, Carole 49; commodification 15; freedom of speech 88; housewives and labour power 83; property in the person 82–3, 102, 195–6; public to private spheres 88; subordination of labour power 84; types of society 85–6, 88 Peck v UK (2003) 67 peer pressure 28, 58 Pentland, Alex: data collection 28, 29, 30; flow of new ideas 28–9;

Index groupthink 29, 59–60; rights to private data 71; social progress 28, 30, 192–3; tracking technology 29 performative contradiction 93, 94 personal data: market 11 personal information: sharing 16–18 personhood: intrinsic value of privacy 22; and morality 21; respect for 20–1, 22, 53 Phenomenology of Oppression (Bartky) 132 pity 175, 176 Plato 148–9, 156 poiesis 142 polis 155, 156 poor, the: media interest 114 pornography: moral rights 12–13; revenge 12, 99 Portalis, Jean Étienne Marie 47, 48, 193 portraiture 43 Posner, Richard 5–6; blackmail 118–20; companies’ trade secrets 116; definition of privacy 108; educational interests 114; fraudulent relationships 109; friendship 113; gossip columns 114; individual privacy and fraud 110; information about others 113–14; irrational judgements 110–11, 112; legislation favouring individual privacy 117; market efficiency of privacy 119, 197–8; poor people, lack of interest in 114; supply creating demand 115; third-party conversations 116 Post Traumatic Stress Disorder (PTSD) 99 power: Foucauldian concept 68; Spinozist concept 75–6; technique of 144 Power, Michael 149 power relations: discretion 39; serious crime 40 presence 150–2 preservation through transformation 44 press, the: intrusion into private lives 42, 115; published images of black people 42–3; safeguarding white women’s reputation 44 privacy: commodification 71; coping mechanism 36–7; definitions 2, 34 privacy rights 11; economic grounds

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for 110; overlapping 14; and property rights 14 private information 128 private justice 118 private policing 84 private property: of selves 11 private space: defence of 131 private sphere: unequal 46 property: ownership of labour 82 property in the person: Foucauldian example 127; Fried’s view 14–15, 19; individualism 12, 15, 19; and intimacy 16–18; Kantian view 49–50; Pateman’s view 82–3, 86; property rights 12, 15, 82–3; relations of domination 87; social relations 86 property rights 12; in the person 12, 15, 82–3; unrecognised 12; wife as property 16–18 Prosser, Dean 23–4 Prussia 48 public disclosure 24 public humiliation 40, 99 publicity 24 public/private divide: Kantian view 58 race: contrasting treatment of wife beaters 39–40; press intrusion 42; public humiliation of black men 40; published images of black people 42–3; status of black people 40 Rachels, James 13 racism 183 Radical Enlightenment 76, 161 Radin, Jayne 107, 198, 199; commodification of human attributes 126–30; objects for exchange 126–7; private information 128 rape 14; within marriage 15 rationality: Kantian view 56 reason: Kantian view 169; Spinozist view 169, 181 relational autonomy 63, 65–7, 72–3, 194 relationships: markets in 109 religious groups 184–5 republicans 181 reputation 41 respect 20; personhood 20–1, 22, 53 responsibility 95 revenge porn 12, 99 Rhodes court judgement 35, 38

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Index

Riva, Giuseppe 152 Roberson v. Rochester Folding Box Co. (1902) 25, 44 Roger and Me (film) 127 Rosen, Jeffrey: intimacy and personal information 16–18 Rousseau, Jean Jacques 47 Rowlands, Mark 148, 148n8 Rustichini, Aldo 121, 123 R v Hadjou (1989) 118 sacraments 46 sad passions 165, 171, 175, 179, 182, 183, 184 Sandel, Michael 108, 199–200; blood donation market 121; ethical behaviour 126; nuclear waste storage, Swiss village 124, 198 Savigny, Karl Friedrich von 48, 49, 193 Say’s Law 115 scaffolding 147, 148 Scanlon, Thomas: foundations of privacy 14 Schneider, Monique 162 Schoeman, Ferdinand David 64, 192; intrinsic value of privacy 22; life goals 23 Scott, Dayna Nadine 168 Second Treatise (Locke) 80–1 secretaries 129 seditious libel 41 self: heterosexual couple 94–5; life stories 96–100; Lockean concept of 5, 88–93, 98, 196–7; perceptions of “who we are” 19; role of appropriation 93; self-defining 92–3, 100; shaped by the society 75; transcendental 153, 154 self-correction: bigotry 112–13; discrimination 111–12 selfhood: conceptions of 54; Floridi’s concept of 153–7; Kantian view 58–9; metaphor 64–5; Spinozist view 133 self-identity: and memory 99 self-ownership 15; employees 44; Lockean view 89–90 self-possession 43 self-surveillance 130–1 semantic information 141 sentimental family 35; and nature 47 sexual difference 94 sexual relations: object of gratification 19; property rights in marriage

18–19; under ecclesiastical law 47; whole person 19 sexual violence 13 shame 130 Siegel, Reva B. 34, 49; citizens’ rights 37; family government 38; judicial status quo 35 singular entity 73, 164–5 Skidelsky, Edward and Robert 92 Skinner, Burrhus Frederic 29, 70 slavery: voluntary 85 slaves 44 smart technology 149 Smith, Adam 101 social contract 101 socialisation: and autonomy 64 social media: privacy concerns 71–2 social obligations 125 social pressure 28 social relations: ownership of an object 86; property in the person 86 Socrates 168 Solove, Daniel J. 34 Spinoza, Baruch 2, 3; adequate knowledge 163–81, 201–2; aesthetics 166; atheism of 164; Berlin’s criticism of 177; bigotry 112; distinction from Hobbes 172–3; essence 176–7; freedom 175, 178–9, 180; free speech 179; immanent ethics of privacy 171–3, 181–6; imposing adequate knowledge 177–81; individuals and society 170, 170–1; individuals trying to thrive 171, 173; information 163; joyful passions 167; knowledge 162; ontology 163–8; philosopher of communication 162; political thought 168–9; power 75–6; rationality 112; reason, view on 169, 181; relational autonomy 72–3, 195; role of the state 176–9; sacrificing individuals for the greater whole 174–7; sad passions 165, 171, 175, 179, 182, 183, 184; selfhood 133; singular entity 164–5, 167; subordination 182–4; transindividuals 173, 175, 179 state, the: benevolent 176; conatus 174; curtailing free speech 176; imposition of adequate knowledge 177–81; interference in the private realm 48; manipulation of beliefs

Index 179–80; mind and body of 174; Spinozist justification for 176; undermining the rule of law 176 static property bearer 152 Steel, Helen 185 stockbrokers 28–9 Stoicism 131, 161, 168 subject: object of detection 151–2 subject of interest 101, 101–2 subject of right 101, 102 sublime: experience of 56–7 subordination: benefits for women in relationships 132; blocking communication 182; in contracts 80–1; effects on the transmission of adequate knowledge 182–4; labour power as a commodity 84; of women in marriage 80–1; of women within the family 80–1 suicide 90 supply and demand 115 surveillance: self 130–1; studies 143; ubiquitous 20 surveillance technology 62, 63, 87, 88 Taylor, Frederick Winslow 29 technique of power 144 telepresence 150–2 temperance movement: campaign against violent husbands 34–5 Theological Political Treatise (Spinoza) 170, 172, 178 third-party conversations 116 Thomson, Judith Jarvis 10; moral rights 12–13; privacy rights 14, 192 Thought 163, 165 time: work and home 131 Titmuss, Richard 107, 199; blood donation market 120–1, 122, 123 Tolley v J.S. Fry and Sons Ltd. (1931) 25 tort law 23–4; defamation 41; development of 33, 37; invasion of privacy 25 tracking technology 29 trade secrecy protection 116 transcendental self 153, 154, 195 transcendental subject 58–9 transindividuals 75, 173, 175, 179 Turing, Alan 145 Two Treatises of Government (Locke) 3, 82 ubiquitous surveillance 20 understanding: faculty of 169

213

universal laws 22, 23 vagabonds 61, 62 value pluralism 171, 179 Vidal, Gore 38–9 virtue ethics 126, 138 Vogel, Ursula 45, 46–7, 48, 49, 50 Volkman, Richard 86–7 voluntary slavery 85 Vredeling Directive 88 waged labour 62–3 Waldron, Jeremy 61, 62 War on Terror 7 Warren, Samuel D. 23, 24; development of common law 41–2; feelings, protection of 41, 42; press intrusion 42, 115; privacy in the family home 37, 193; reputation, protection of 41, 193; tort law 33, 37 Weber, Max 38 Weir, Tony 24 welfare benefits 63 West, David 180, 181 Wharton, Edith 16–17 whipping 34 Whitman, J. Q.: dignity 21 whole person: and sex 18–19 “who we are”: Floridi’s view 146, 147, 149, 150; Foucauldian view 99–100; Lockean view 99; private information 11; psychological sense of 19; Spinozist view 72, 92, 162 wife beating 34–7, 39–40, 88 Wilde, Oscar 119 Williams, Patricia 111 wives: beatings from husbands 34–7, 39–40; financial dependence 38; labour power 83; sex in marriage 16–18, 19; traditional 19 women: dependence on immediate family 63; Kantian 62; passive matter (Plato concept) 156; pregnant 57; private sphere 14; property of husbands 15; Rousseau’s view 47; subordination within the family 80–1 workers see employees workplace: characterisation of 87; selfsurveillance 130–1; surveillance of employees 87 workplace data 29 zóon polítikon 156, 157