The Individual and Privacy [I] 1315239000, 9781315239002

Table of contents :
Cover......Page 1
Half Title......Page 2
Title Page......Page 4
Copyright Page......Page 5
Contents......Page 6
Acknowledgements......Page 8
Series Preface......Page 10
Introduction......Page 12
PART I: THE TIME DIMENSION: PERSPECTIVES FROM HISTORY AND ANTHROPOLOGY THROUGH PHILOSOPHY TO RELIGION AND TECHNOLOGY LAW......Page 45
1 Privacy in Eighteenth-Century Aleppo: The Limits of Cultural Ideals......Page 47
2 An Introduction to Stanner's Concept of Privacy......Page 67
3 Privacy. An Intercultural Perspective......Page 81
4 Japanese Conceptions of Privacy: An Intercultural Perspective......Page 93
5 Privacy, Technology Law and Religions across Cultures......Page 103
PART II: THE SPACE DIMENSIONS IN PRIVACY PERSPECTIVES AND METHODOLOGIES: FROM EARLY DAYS IN SOCIOLOGY THROUGH SOCIAL PSYCHOLOGY TO THE SOCIO-LEGAL APPROACH AND THE COGNITIVE SCIENCES IN THE TWENTY-FIRST CENTURY......Page 125
6 The Sociology of Secrecy and of Secret Societies......Page 127
7 The Social Psychology of Privacy......Page 185
8 Interpersonal Relationships and Personal Space: Research Review and Theoretical Model......Page 197
9 Privacy Regulation: Culturally Universal or Culturally Specific?......Page 219
10 The Socio-Legal Context of Privacy......Page 239
11 Guide to Measuring Privacy Concern: Review of Survey and Observational Instruments......Page 271
12 Theoretical and Practical Considerations for Online Privacy Research: CONSENT as a Case-Study......Page 283
PART III: THE CULTURAL DIMENSION: CONCEPTUALIZATIONS OF PRIVACY AND PERSONALITY AROUND THE WORLD......Page 305
13 The Dao of Privacy......Page 307
14 Conceptualizing Privacy......Page 377
15 "I've Got Nothing to Hide" and Other Misunderstandings of Privacy......Page 447
16 Lex Personalitatis & Technology-Driven Law......Page 475
17 Data Protection in Germany I: The Population Census Decision and the Right to Informational Self-Determination......Page 481
18 Data Protection in Germany II: Recent Decisions on Online-Searching of Computers, Automatic Number Plate Recognition and Data Retention......Page 487
19 Protecting the Right to Privacy in China......Page 495
20 Privacy and Developing Countries......Page 515
Name Index......Page 535

Citation preview

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

The Library of Essays on Law and Privacy Series Editor: Philip Leith

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Titles in the Series:

The Individual and Privacy Volume I Joseph A. Cannataci Privacy in the Information Society Volume II Philip Leith Security and Privacy Volume III Joseph Savirimuthu

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Volume I

Edited by

Joseph A. Cannataci University of Malta and University ofGroningen, The Netherlands

Routledge

Taylor & Francis Croup LONDON AND NEW YORK

First published 2015 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2015 Joseph A. Cannataci. For copyright of individual articles please refer to the Acknowledgements. 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. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Wherever possible, these reprints are made from a copy of the original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality of the reprint, some variability may inevitably remain. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Control Number: 2014946835 ISBN 9781409447177 (hbk)

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Contents Acknowledgements Series Preface Introduction

vii ix xi

PART I THE TIME DIMENSION: PERSPECTIVES FROM HISTORY AND ANTHROPOLOGY THROUGH PHILOSOPHY TO RELIGION AND TECHNOLOGY LAW 1 Abraham Marcus (1986), 'Privacy in Eighteenth-Century Aleppo: The Limits of Cultural Ideals', International Journal of Middle East Studies, 18, pp. 165-83. 2 John Hilary Martin (2001), 'An Introduction to Stanner's Concept of Privacy' and W.E.H. Stanner (2001), 'Privacy and the Aboriginal People', in W.E.H. Stanner and John Hilary Martin, People from the Dawn: Religion, Homeland and Privacy in Australian Aboriginal Culture, Antioch, California: Solas Press, pp. 147-49; 151-59. 3 Rafael Capurro (2005), 'Privacy. An Intercultural Perspective', Ethics and Information Technology, 1, pp. 37-47. 4 Makoto Nakada and Takanori Tamura (2005), 'Japanese Conceptions of Privacy: An Intercultural Perspective', Ethics and Information Technology, 1, pp. 27-36. 5 Joseph A. Cannataci (2009), 'Privacy, Technology Law and Religions across Cultures', Journal of Information, Law & Technology (JILT), 1, pp. 1-22.

3

23 37 49 59

PART II THE SPACE DIMENSIONS IN PRIVACY PERSPECTIVES AND METHODOLOGIES: FROM EARLY DAYS IN SOCIOLOGY THROUGH SOCIAL PSYCHOLOGY TO THE SOCIO-LEGAL APPROACH AND THE COGNITIVE SCIENCES IN THE TWENTY-FIRST CENTURY 6 Georg Simmel (1906), 'The Sociology of Secrecy and of Secret Societies', American Journal of Sociology, 11, pp. 441-98. 7 Barry Schwartz (1968), 'The Social Psychology of Privacy', American Journal of Sociology, 73, pp. 741-52. 8 Eric Sundstrom and Irwin Altman (1976), 'Interpersonal Relationships and Personal Space: Research Review and Theoretical Model', Human Ecology, 4, pp. 47-67. 9 Irwin Altman (1977), 'Privacy Regulation: Culturally Universal or Culturally Specific?', Journal of Social Issues, 33, pp. 66-84. 10 Philip Leith (2006), "The Socio-Legal Context of Privacy', International Journal of Law in Context, 2, pp. 105-36.

83 141 153 175 195

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

vi

The Individual and Privacy

11 SOren Preibusch (2013), 'Guide to Measuring Privacy Concern: Review of Survey and Observational Instruments', International Journal of Human-Computer Studies, 71, pp. 1133^3. 227 12 Noellie Brockdorff, Liberate Camilleri, Marco Montalto, Albert Caruana, Saviour Chircop and Jeanne Pia Mifsud Bonnie! (2014), 'Theoretical and Practical Considerations for Online Privacy Research: CONSENT as a Case-Study', pp. 239-60. Written by invitation for this volume. 239 PART III THE CULTURAL DIMENSION: CONCEPTUALIZATIONS OF PRIVACY AND PERSONALITY AROUND THE WORLD 13 Lara A. Ballard (2013), "The Dao of Privacy', Masaryk University Journal of Law and Technology, 7, pp. 107-76. 263 14 Daniel J. Solove (2002), 'Conceptualizing Privacy', California Law Review, 90, pp. 1087-155. 333 15 Daniel J. Solove (2007), '"I've Got Nothing to Hide" and Other Misunderstandings of Privacy', San Diego Law Review, 44, pp. 745-72. 403 16 Joseph A. Cannataci (2008), 'Lex Personalitatis & Technology-Driven Law', SCRIPTed, 5, pp. 1-6. 431 17 Gerrit Hornung and Christoph Schnabel (2009), 'Data Protection in Germany I: The Population Census Decision and the Right to Informational Self-Determination', Computer Law & Security Review, 25, pp. 84-8. 437 18 Gerrit Hornung and Christoph Schnabel (2009), 'Data Protection in Germany II: Recent Decisions on Online-Searching of Computers, Automatic Number Plate Recognition and Data Retention', Computer Law & Security Review, 25, pp. 115-22. 443 19 Cao Jingchun (2005), 'Protecting the Right to Privacy in China', Victoria University of Wellington Law Review, 36, pp. 645-64. 451 20 Gus Hosein (2011), 'Privacy and Developing Countries', Privacy Research Papers, pp. 471 -90. 471 Name Index

491

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Acknowledgements Ashgate would like to thank the researchers and the contributing authors who provided copies, along with the following for their permission to reprint copyright material. BerkeleyLaw for the essay: Daniel J. Solove (2002), 'Conceptualizing Privacy', California Law Review, 90, pp. 1087-155. Copyright © 2002 California Law Review. Cambridge University Press for the essays: Abraham Marcus (1986), 'Privacy in EighteenthCentury Aleppo: The Limits of Cultural Ideals', International Journal of Middle East Studies, 18, pp. 165-83. Copyright © 1986 Cambridge University Press; Philip Leith (2006), 'The Socio-Legal Context of Privacy', International Journal of Law in Context, 2, pp. 105-36. Copyright © 2006 Cambridge University Press. Elsevier for the essays: S6ren Preibusch (2013), 'Guide to Measuring Privacy Concern: Review of Survey and Observational Instruments', International Journal of HumanComputer Studies, 71, pp. 1133-43. Copyright © 2013 Elsevier Ltd. All rights reserved; Gerrit Hornung and Christoph Schnabel (2009), 'Data Protection in Germany I: The Population Census Decision and the Right to Informational Self-Determination', Computer Law & Security Review, 25, pp. 84-8. Copyright © 2009 Dr Gerrit Hornung and Christoph Schnabel. Published by Elsevier; Gerrit Hornung and Christoph Schnabel (2009), 'Data Protection in Germany II: Recent Decisions on Online-Searching of Computers, Automatic Number Plate Recognition and Data Retention', Computer Law & Security Review, 25, pp. 115-22. Copyright © 2009 Dr Gerrit Hornung and Christoph Schnabel. Published by Elsevier. Masaryk University Institute of Law and Technology for the essay: Lara A. Ballard (2013), 'The Dao of Privacy', Masaryk University Journal of Law and Technology, 7, pp. 107-76. Solas Press for the essay: John Hilary Martin (2001), 'An Introduction to Stanner's Concept of Privacy' and W.E.H. Stanner (2001), 'Privacy and the Aboriginal People', in W.E.H. Stanner and John Hilary Martin, Peoplefrom the Dawn: Religion, Homeland and Privacy in Australian Aboriginal Culture, Antioch, California: Solas Press, pp. 147-49; 151-59. Copyright © W.E.H. Stanner and John Hilary Martin. Solas Press is an independent publisher of nonfiction. Since 1999 it has brought to the public eye works that are worthwhile contributions to contemporary thought. Springer for the essays: Rafael Capurro (2005), 'Privacy: An Intercultural Perspective', Ethics and Information Technology, 7, pp. 37-47. Copyright © 2005 Springer; Makoto Nakada and Takanori Tamura (2005), 'Japanese Conceptions of Privacy: An Intercultural Perspective', Ethics and Information Technology, 7, pp. 27-36. Copyright © 2005 Springer; Eric Sundstrom and Irwin Altaian (1976), 'Interpersonal Relationships and Personal Space: Research Review

viii

The Individual and Privacy

and Theoretical Model', Human Ecology, 4, pp. 47-67. Copyright © 1976 Plenum Publishing Corp.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The University of Chicago Press for the essays: Georg Simmel (1906), 'The Sociology of Secrecy and of Secret Societies', American Journal of Sociology, 11, pp. 441-98. Copyright © 1906 the University of Chicago Press; Barry Schwartz (1968), 'The Social Psychology of Privacy', American Journal of Sociology, 73, pp. 741-52. The University of San Diego, School of Law for the essay: Daniel J. Solove (2007), '"I've Got Nothing to Hide" and Other Misunderstandings of Privacy', San Diego Law Review, 44, pp. 745-72. Copyright © 2007 San Diego Law Review. Reprinted with the permission of the San Diego Law Review. Victoria University of Wellington Law Review for the essay: Cao Jingchun (2005), 'Protecting the Right to Privacy in China', Victoria University of Wellington Law Review, 36, pp. 645-64. John Wiley and Sons for the essay: Irwin Altrnan (1977), 'Privacy Regulation: Culturally Universal or Culturally Specific?', Journal of Social Issues, 33, pp. 66-84. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity. Publisher's Note The material in this volume has been reproduced using the facsimile method. This means we can retain the original pagination to facilitate easy and correct citation of the original essays. It also explains the variety of typefaces, page layouts and numbering.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Series Preface It was a pleasure to be asked to produce this series of essays, following in the footsteps of Eric Barendt's Privacy collection (Ashgate, 2001). Barendt had focused on the philosophical aspects of privacy at a time when academic interest in privacy was beginning to develop more seriously, and his chosen essays had been useful to both me and my students as we studied what 'right to privacy' the individual might have in the networked world. That collection enabled me to see quickly the main themes delineating privacy and also push students towards quickly grasping these themes. Over the past decade or so, the research field has exploded and a much more cross-disciplinarian approach is needed to understand better current trends and responses by the academic community. This series of volumes thus moves into - perhaps - a less philosophical approach about the individual and a more 'ethical' one as society attempts to determine what role privacy should have and how regulation might be enabled whether through law, technology or social norm. The new context is that there is now no technical limitation as to how privacy might be undermined: both the state and commerce have tools and techniques to know more about any individual than they know about themselves, whether through the daily collection of everyday data or through targeting of individuals or populations. It is clear that if there is now no technical constraint to intrusion, the current debate must be over the ethics of privacy: what should society consider to be 'right behaviour' (in the moral sense) in a world where no-one appears to agree what that behaviour should be or where the moral lines should be drawn. There is, of course, no real help given by Conventions such as the European Convention on Human Rights (ECHR) - Art. 8 and Art. 10 tell us only that we have a right to privacy and also a right to know about others, two abstract rights which clearly conflict. The much vaunted 'right to be left alone' hardly helps us understand privacy in the modern world either. The debate is now over how to construct more detailed rights and the ethical rationale for these constructions. Before this can be done, we must also understand the complexity of the concept of'privacy'. My colleagues in this project, Joseph Cannataci and Joseph Savirimuthu have aided me enormously by broadening the series' vision of what privacy is. Our goal has not been to present a collection which follows our own views on the ethical choices around the regulation of privacy (each of us, it seems to me, has a different perspective anyway). What they have done is to help to disentangle the strands which are lumped together under the rubric of privacy, and provide the reader with a means to approach these strands. We have done so by taking a decidedly multi-disciplinary approach. Cannataci's volume, The Individual and Privacy, looks at privacy from a principally anthropological stance. What has been meant by privacy in the past? What has privacy meant in the various parts of the globe, each with their own culture? What is the nature of an individual's right as against the community? The reader could hardly leave Cannataci's volume without agreeing with his assertion that privacy is a complex multi-faceted matter. Understanding of that fact means that our proposed ethical solutions must match the complexity of the problem.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

X

The Individual and Privacy

Savirimuthu, in Security and Privacy, deals with that strand of privacy related to the state - that of surveillance. A state has obligations to protect the individual from others but also obligations to respect the rights of the individual, all within a framework where the state is the most powerful actor. It was, after all, state intrusion which had brought Art. 8 ECHR into being. Yet any state now has more powerful techniques for overseeing the citizen than the Nazi or Soviet states ever had. Can we implement, through law, an ethical framework in which we can trust the state to behave responsibly? Savirimuthu's chosen essays focus on whether and how regulation might be possible. My own collection. Privacy in the Information Society, looks at the conflict where the attempt to build an 'information economy' meets the attempt to protect privacy. The very notion of'information economy' leads us to understand that there is value in information of all kinds - celebrity private lives, customer databases, user provided information to social media, email contents, health data, etc. etc. Presuming that an information economy is a 'good thing' (certainly most countries wish to develop this) does this mean that privacy is no longer possible? If it is, how might we set up the positive rights and responsibilities to match our expectations? We had much debate when we first got together on this project as to how we might structure the collections. Hopefully the reader will find that our chosen approach is useful. We also had debate about which essays might appear and where, a problem since although the titles of each collection differ, we are really interested in the same complex issue. We also certainly each felt that we could have chosen two or three times as many essays, but hopefully - again - the reader will not be disappointed with those upon which we did eventually rest. PHILIP LEITH

Series Editor Queen's University of Belfast, UK

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Introduction The Individual and Privacy: There's More Than One Way to Cook an Egg (or 'a Multidisciplinary and Interdisciplinary Approach') We do need to study privacy, but with a more developed and investigative approach. The approach which presumes that personal control of information is the ultimate goal to be achieved is ideological rather than academic, where the presumptions and assumptions are often untested, unstated and involve controversial moral claims which are suggested to be 'commonly held'. (Leith, p. 202) Not for the first time in 30 years of thinking and publishing about privacy, I find myself starting off with what I term a piece of 'classic Leith'. The excerpt above from Philip Leith's 2006 study, reproduced as Chapter 10 in this volume, serves to outline the entire approach followed in selecting the essays when compiling this anthology. This book and its contents reflect the many paths needed to develop a more robust methodology for investigating privacy in such a way that evidence-based policy-making, not to mention privacy scholarship itself, can become more credible. In doing so, it is worth noting that the title 'The Individual and Privacy' is not an accidental choice, born as it was out of discussions with my fellow editors in this series of three volumes. The individual is the starting point but never the end point of the investigation since there can be no proper consideration of privacy without understanding the interaction of the individual within a larger group of human beings. This is not to say that the essays chosen in this book are intended to answer the inquisitiveness of somebody wishing to probe very deeply into the differences and interplay between individual and collective privacy. While that aspect is sometimes touched upon tangentially or implicitly, sadly, space considerations do not allow that to become a main focus of the book. Instead the title is intended to set the reader thinking immediately about the need to realize that there is no one single type of individual on the planet,1 that people and circumstances change over time in ways possibly induced by climate or geography as well as cultural development and that therefore, by definition, a book purporting to be about 'The Individual and Privacy' must 1

This approach should not be interpreted as an assertion that there may not be common characteristics in privacy-related behaviour or privacy-neighbouring rights and concepts as exhibited by different individuals born and living in different cultures and different places during the same period in time or at different times around the world. There is however precious little empirical data about the existence or otherwise of a common privacy core, a deficiency which hopefully will be partially remedied by the PAPAS-PACIT and inCONNECTS projects launched and co-ordinated by the author. These include efforts to investigate, through fieldwork in Africa, Asia, Australia and the Americas, the existence of a universal core for the concept of privacy, how it is articulated and types of privacy-related behaviour among indigenous peoples. Some of the results of these projects are expected to be published in a forthcoming volume, J.A. Cannataci, The Right That Never [Quite] Was: Privacy Law, Technology and Information Ethics across Cultures.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xii

The Individual and Privacy

perforce deal with different individuals, in different times, in different places and, perhaps most importantly, from different points of view. In order to deal better with the three dimensions of time, space and place, this book was designed around a number of questions. It brings together a number of essays which directly or indirectly would partially but never comprehensively provide some but not all the answers to questions like: Who? Which individual? A European individual, an Asian individual, an American individual? Chinese? Japanese? When? A Roman in the twenty-first century or in the second century AD? A Chinese in the first millennium BC or one in the twentieth century? How? Privacy when viewed from the perspective of legal theory, or of information science? From the viewpoint of sociology, social psychology, philosophy, information ethics or data protection law? In all probability, the all-rounder essay on privacy remains to be written and it certainly is not to be found in this volume. Instead the reader is offered the opportunity to obtain an overview of the subject by piecing together a mosaic made up of several snapshots taken at different times by different scholars with different points of view. This introduction is intended to reduce the collage effect somewhat and hopefully introduce some clarity to parts of the picture especially in areas where the way that the pieces fit together may not be immediately apparent. The scope and structure of this book is also intended to respond to twin challenges: the intrinsic complexity of its subject matter, privacy, and the diversity of its target audiences. As a point of departure I relied upon my experience of over 25 years of teaching privacy-related subjects to law students and police officers in a number of different cultures in many countries both inside and outside Europe. I then reflected on the experience obtained in teaching an introductory course on privacy and data protection law to undergraduate and post-graduate students in other disciplines: accounts, management, computer science, intelligence studies, medicine to name but a few. These reflections prompted two basic realizations. In examining the prior knowledge that each of these groups of students came equipped with, there was little or nothing that was satisfactorily insightful let alone comprehensive about privacy in each of their background disciplines that could quickly explain why the policy-maker and thus the law should bother about privacy. When constructing a reading list for any taught course it was immediately obvious that one might as well have been designing a primer on privacy for the proverbial little green man from Mars on his first visit to Earth. This primer would have to explain somehow why some things may be private almost everywhere (for example, sex and bodily functions) while other things may be private in one place but not in another or, even within the same country or region, private within one culture but not in another. Moreover, not knowing whether the attention span of the little green man is any different to that of undergraduate and post-graduate homo sapiens sapiens, that volume would have to work in a number of ways: either as something to dip into occasionally out of curiosity or for inspiration or also as a basic 'full immersion course'. The architecture of this book was additionally influenced by the design considerations of a recent and separate study (Cannataci, 2015) where I outlined the development and principles of idMAPPING: an interdisciplinary Methodology for the Analysis of Privacy, Personality, Identity, Networks & Governance. This is built around the science and possibly the art of bringing together a number of disciplines in order to map out better and dissect the privacy conundrum. These disciplines include but are not limited to: social anthropology; cultural anthropology; sociology; social psychology; cognitive science; history; information

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xiii

communication technologies science; legal theory; technology law; and especially data protection law. idMAPPING borrows tools from each of these disciplines and more in its quest to map out what privacy really is, where and when. The latter dimensions of place and time are fundamental to the way that the methodology is structured. Equally fundamental to the idMAPPING approach is the fact that, by design, privacy is never investigated in isolation but as much as possible together with other characteristics such as personality and identity irrespective of whether the individual or the collective are interacting in physical networks or online networks. This volume is therefore organized into three broad parts: Part I - 'The Time Dimension: Perspectives from History and Anthropology through Philosophy to Religion and Technology Law'. Part II - 'The Space Dimensions in Privacy Perspectives and Methodologies: From Early Days in Sociology through Social Psychology to the Socio-Legal Approach and the Cognitive Sciences in the Twenty-First Century'. Part III -'The Cultural Dimension: Conceptualizations of Privacy and Personality around the World'. It should be emphasized that these are not watertight compartments and that there will be a considerable degree of overlap between one part and the next since privacy is multidimensional. The groupings have been created with the main purpose of reminding the reader that one is looking at the subject of privacy through a lens which may be coloured or otherwise distorted - or not, or indeed sharpened - by time or by differing concepts of space or indeed variables inherent to different places around the planet. The Time Dimension This first part is intended to introduce some evidence that we may have for attitudes to and perceptions of privacy across the centuries. It also demonstrates the strengths and richness brought to the investigation of privacy proposed by the interdisciplinary approach advocated in idMAPPING. Indeed, each one of the five essays comes from authors originally hailing from different disciplines: history; anthropology; information ethics; and technology law. It opens with an essay that actually combines the time dimension with strong elements of the space dimension too. Abraham Marcus' 'Privacy in Eighteenth-Century Aleppo: The Limits of Cultural Ideals' (Chapter 1) provides some extraordinary insights and sharp analysis based on the documentation of an Islamic Law (shari'a) Court in the Syrian city of Aleppo going back in time over 250 years to around the middle of the 1700s. Marcus, a historian from the University of Texas at Austin, draws on legal sources to produce a work which is eminently non-legal but fundamentally socioculturally anthropological in character. He uses the available historical records to infer that there may exist two aspects of privacy in eighteenth-century Aleppo which may need to be revised: first, that there were forms of privacy, primarily those involving personal information which people simply did not value. Second, he supports an argument that the prized forms of privacy - and specifically those valued most by Muslim societies - were not necessarily attained or protected in practice. Marcus is particularly effective in pointing out the impact that economic realities may have

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xiv

The Individual and Privacy

had on aspirations to privacy: 'Poverty for one, forced upon many individuals compromising domestic conditions; offensive violations widened further the gap between ideals and realities' (p. 4). Throughout this essay Marcus continues to provide evidence for the distinction between cultural conceptions of privacy and its actual manifestations in social situations. He does this by first describing in two consecutive parts what was desirable and accessible in the areas of physical privacy and privacy of information, piecing together the practices and attitudes of the people of Aleppo in a variety of social contexts. Marcus concludes with an attempt which, in his own words, tries 'to make sense of the norms, realities, and dynamics of privacy by fitting the story into the larger processes of Aleppo's society' (p. 4). Marcus' study is historical in at least two senses: it was written and published nearly 30 years ago and it deals with the Aleppo of the 1750s. The insights it provides on the impact of economic realities on the aspirations of a predominantly Muslim urban population invite further contemporary research into the subject investigating whether economics, poverty, wealth distribution, technology and architecture in urban environments of twenty-first-century Muslim societies still exhibit at least some of the same dynamics and distinctions. The second essay is selected deliberately to contrast with the first in that it does not deal with an urban environment but rather with the very rural one of the Australian outback and focuses on the notions of privacy as could be observed in Aboriginal peoples up to the time when its author W.E.H. Stanner prepared it for presentation to the Law Reform Commission of Australia in 1977. Stanner was one of Australia's most eminent anthropologists who spent considerable time in the field before, during and after the Second World War. He was a very keen observer of the Australian aboriginals who even today still constitute one of the oldest continuously existing cultures in the world, going back in time for as long as possibly some 30-40,000 years. These Australian indigenous peoples who may have numbered as many as 400 distinct peoples when white man arrived in Australia some 230 years ago, have developed complex information ethics which are often interwoven with their belief systems. Indeed, in his brief analysis, Stanner attempted to identify privacy-relevant behaviour in peoples which have been present in Australia since the dawn of time in terms of modern human societies yet which often have no word for privacy in their many languages. The deliberate contrast between an urban setting and a rural setting should not conceal two themes which are recurrent: the fact that privacy-related behaviour is linked to belief-systems in both cases and that the notion of space is also relevant whether in eighteenth-century urban Muslim architecture or the way that twentieth-century Australian aboriginals relate to each other in domestic, camp and hunting areas. The version chosen for reproduction in this volume, 'Privacy and the Aboriginal People' (Chapter 2), is one with short annotations by John Hilary Martin published in 2001. Martin is at pains to point out that a 'traditional aboriginal camp may be a community without walls, but privacy is still an important part of aboriginal life' (p. 23). The contrasts and occasional similarities - to the privacy concerns of Muslim households contained within multiple walls as outlined in the Marcus essay may help readers get to the core of at least part of the (sometimes common) concepts underlying privacy in both contexts. The third essay is a departure from the previous ones coming from the perspectives of history and anthropology to the comparatively much newer discipline of information ethics. Rafael Capurro is internationally recognized as one of the founding fathers of the contemporary focus on information ethics which has developed steadily since the late 1980s. Capurro understandably speaks the language of philosophers yet intertwined with fundamental human

The Individual and Privacy

xv

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

rights in a fascinating piece of intercultural perspective on privacy. Going back through the philosophical traditions of several centuries and sometimes right back to Plato's days, he considers basic epistemological and moral concepts such as subjectivity, autonomy, data protection and the underlying idea of inviolable human dignity. His essay, 'Privacy: An Intercultural Perspective', deals with the question of how these concepts became part of our moral and legal self-understanding in Western countries and how far this view of ourselves and our selves, and consequently of privacy, can be understood by way of comparison with the Japanese perspective ofSeken, Shakai and Ikai and particularly with the topic of'denial of self (Musi), (p. 37)

Capurro specifically addresses these issues in mass media and the Internet, relating the concepts of privacy and freedom of speech to the Japanese concepts of Ohyake and Watakusi. It will come as no surprise to find once again occasional references to the relevance of the concept of space with Capurro citing Bin Kimura - 'Japanese culture makes a strong difference between the "private" sphere within one's own house and the "public" sphere outside the house' (p. 44) - as part of a wider debate on privacy in cyberspace. Capurro's conclusions also address spatial concepts as well as faith or religious issues. He finds that some Westerners 'still live in the house of Platonic metaphysics or in its derivatives, such as the Kantian one, with their "two worlds metaphor'" (p. 45) while at least some Japanese live in a more nuanced three-fold world. Moving on to faith-related issues, Capurro opines that some 'Westerners believe in a Christian theology, which introduces the personified idea of the evil with its own house, Hell. Ikai is not the same but it creates a similar polarization with our normal ethos or morality (as parallel with Japanese Sekerif (p. 45, emphasis in original). Understandably enough since he spent so many years based in Germany which is the European country which has led the post-war work in the development of personality law or personlichkeitsrecht, Capurro finds a need to reflect on the Kantian perspective of Western morality based on the idea of the individual as an autonomous being. The latter is the context for contrast with Japanese Buddhist traditions where the 'self is 'nothing' (Musi). In concluding Capurro not unreasonably finds that 'while Japanese morality stresses the value of the community and the dimension of 'in-between' (Aida) human beings' some Westerners underline individualism and autonomy with the result that there seems to be fundamental differences between the Japanese and Western cultures) regarding the concepts of autonomy and privacy. His final conclusion is that: in a very general way we can say that the concept of privacy in the West is oriented towards the individual, while Eastern countries - and also other cultures like the African ones for instance - stress the concept of community and give privacy at least partly a negative connotation, (p. 46)

Capurro's toing and froing from Western concepts to Japanese concepts and back again to European and so forth is very interesting but not necessarily always straightforward to follow. This is at least partially why I have followed his advice that his essay should be read as part of a dialogue with two Japanese colleagues: Makoto Nakada and Takanori Tamura whose essay, 'Japanese Conceptions of Privacy: An Intercultural Perspective' (Chapter 4), physically and chronologically preceded that of Capurro's in a 2005 edition of the journal Ethics and Information Technology and is the fourth one reproduced in the first part of this volume. It is

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xvi

The Individual and Privacy

in the true sense of the word a companion essay to Capurro's which is broadly focused on the cultural and historical backgrounds of the concepts of privacy and individualism in 'Western' worlds. Their main theme focuses on different concepts of privacy in Japan and their sources in related aspects of Japanese culture. The interrelationship between the two essays is apparent in their taking up identical or similar topics in each essay. So it is heartily recommended that these two essays are read in conjunction with each other. Nakada and Tamura open with an attempt to examine what they identify as 'Contradictory Japanese attitudes towards privacy' making no bones that 'Japan is a complicated country - even for Japanese people themselves' (p. 49). Apart from illustrating some of the issues by using some of their own empirical data, they propose 'a framework that demarcates ^plurality in the worldview(s) of Japanese people' since 'Japanese people's otherwise apparently contradictory attitudes towards privacy and individualism cannot be separated from the plurality of their worldview(s)' (p. 49, emphasis in original). The fifth essay, 'Privacy, Technology Law and Religions across Cultures', is, for want of finding a similar one on the same theme by a different author, one of my own forays into the field. The title 'Privacy, Technology Law and Religions across Cultures' sums up the three main streams which the essay attempts to bring together. Like the previous four essays it probes privacy in relation to belief systems, especially the Muslim and Christian faiths but unlike the preceding essays it very much takes a Technology Law perspective, particularly at the intersection between law, information technology, values and religions. To a certain extent it can also be considered to follow in the earliest traditions established in the very first writings in sociology and sociology of law when both Emile Durkheim and Max Weber took a keen interest in the sociology of religion. Given that laws consist of rules which exist inter alia to protect and promote values, the key thrust of the debate launched in this essay is whether we can get religions to contribute to the formulation of new or evolving legal concepts and possibly to agree about or at least not hinder the development of certain key values such as privacy in a society where information technology is ubiquitous. The three main parts of the essay are each constructed around a dilemma or perspective: a lawyer's dilemma; a philosopher's dilemma; and a theologian's dilemma. The legal perspective opens with a reminder that while today the Internet may have become ubiquitous and universal, the same cannot be said for privacy since although the Universal Declaration of Human Rights has been signed up to by most states around the world and although its principle 12 does mention privacy, nowhere in that essential building block of international human rights law do we find a definition of what privacy is. This lack of definition became thornier when religious differences later came to the fore and the 1948 Declaration was later labelled '"a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law' (see p. 63, emphases in original). The essay then traces the developments and differences in definitions of privacy from Article XX11 of the Universal Islamic Declaration on Human Rights of December 1981 and the 1990 Cairo Declaration on Human Rights in Islam (CDHRI) which would appear to be much more restrictive. It is observed that although predominantly Muslim, the Arab states did not opt for this wording in their 1994 Arab Charter on Human Rights, the revised version of which (22 May 2004), entered into force on 15 March 2008 but retained verbatim the wording of Article 12 of the 1948 Universal declaration. Controversy continues over whether the CDHRI

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xvii

is complementary to the 1948 declaration or if it substitutes it with a position where all rights and freedoms are subject to the Islamic Shari'ah. Advocating the need constantly to go beyond the law and enrich legal analysis through interdisciplinary work, the essay moves on from a legal perspective of international privacy law to a more philosophical approach based on an examination of the recent contribution of information ethics. In this it draws on work by Froehlich, Udeani, Fruhbauer and Capurro, especially on 2008 published work on Religion and IT where a useful check-list had been provided on why information technology and ethics should be important to religion. When moving on to the theological or religious perspective the essay attributes the relative silence of the Western religions to the fact that: At the core of the problematic relationship between religion and privacy is the fact that privacy is inherently non-doctrinal. It creates a positive space in which people may choose to do as they want, without fear of consequence as long as their deeds do not violate societal norms, (p. 72) It contrasts this approach to the rather more prescriptive and intrusive one which may be detected in the Islamic and Jewish traditions concluding that the intersection of privacy, religion and IT is important to believers and non-believers alike and that like all stakeholders, organized religions should be invited to contribute critical thinking as to the relevance of their values to the ongoing privacy debate. The Space Dimensions At this juncture, having noted that in all five essays in the first part the privacy debate therein had made various forms of references to physical space and especially domestic living spaces, this volume's second part at least partially focuses on the space dimension of the privacy conundrum. The dimension of space, as distinct from place, has recently been examined in a discussion thread which may historically be traced back to at least 1963 when Hall (1963) coined the term proxemics. This concept deals with the way that human beings act territorially, behave within certain spaces or retreat within certain spaces or attempt to control certain spaces and it should also be considered in a discussion on privacy. Proxemics is probably most glaringly obvious in the space-related behaviour of indigenous peoples and was specifically remarked upon in one of the earliest (1977) essays on privacy and Australian aboriginals by W.E.H. Stanner, a later annotated version of which is included in this volume (see Chapter 2). Yet, 15 years before Stanner prepared his short study for consideration by Australia's Law Reform Commission, Hall (1963, p. 1003) had already observed that: The writer began systematic observations in a proxemics frame of reference when it became apparent that people from different cultures interacting with each other could not be counted on to attach identical meanings to the same or similar measured distances between them (Hall 1955,1959,1963, 1964). What was close to an American might be distant to an Arab. This comparative analysis between different cultures and possible differences between American and Arab attitudes may come as no surprise to readers, especially to those who would have had a taster of the intercultural perspectives of privacy offered by Capurro, Nakada and Tarnura as included in the first part of this volume. It is worth noting however

xviii

The Individual and Privacy

that over the years, Hall provides us with several definitions of proxemics which may be relevant to privacy:

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

the study of how man unconsciously structures microspace - the distance between men in the conduct of daily transactions, the organization of space in his houses and buildings, and ultimately the layout of his towns. (1963, p. 1003) the study of the ways in which man gains knowledge of the content of other men's minds through judgements of behavior patterns associated with varying degrees of [spatial] proximity to them. (1964, p. 41) the interrelated observations and theories of man's use of space as a specialized elaboration of culture. (1966, p. 1) the study of man's transactions as he perceives and uses intimate, personal, social and public space in various settings while following out of awareness dictates of cultural paradigms. (1974, p. 2)

These definitions of proxemics may be useful in many ways to the privacy researcher. They may, after due consultation with anthropologists and cognitive psychologists, be taken into account when designing interview guidelines for fieldwork researching attitudes to and perceptions of privacy. These have proved to be especially useful in situations where the local language may not have a direct or precise translation of the English word 'privacy' and underpin part (definitely not all) of this author's approach to fieldwork in the PAPAC-PACIT and inCONNECTS projects. It would however be outside the scope of this relatively short introduction to enter into the merits or demerits of Hall's and others' work on proxemics in any great detail. Some of their observations about the use of space appear to remain prima facie relevant to the debate on privacy and are reflected in various ways in some of the essays selected to be reproduced in the second part of this volume. When carrying out fieldwork in Africa, Asia or the Americas this author was often confronted with a situation, especially in interviews with members of indigenous groups, where a discussion about privacy often veered off into one about secrecy, not least because the language used on an everyday basis by the interviewee would almost invariably have a direct translation for secret but not necessarily for private. As such, secrecy is something often sought or used by people wishing part of their behaviour to remain private and is the principal focus of the oldest essay in this anthology. Georg Simmel's 1906 essay, 'The Sociology of Secrecy and of Secret Societies' (Chapter 6), on the sociology of secrecy is still considered to be a standard work by some to the extent that, like The Art of War, I have seen it still being used as a background reading text by at least two intelligence academies in 2014. Part II follows the pattern already established in this volume whereby perspectives on privacy are sought for in a wide variety of disciplines and Simmel's essay is one published in the infancy of the discipline which was known then and continues to be known as sociology. Georg Simmel notably included in this essay his observations about something that would eventually become considered to be part of a much wider debate on Spharentheorie or the theory of spheres and which has since resurfaced time and again in the (usually German) discussions of personality and privacy. Its significance is such that it is worth citing at length: The relationships of men are differentiated by the question of knowledge with reference to each other: what is not concealed may be known, and what is not revealed may yet not be known. The last

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xix

determination corresponds to the otherwise effective consciousness that an ideal sphere surrounds every human being, different in various directions and toward different persons; a sphere varying in extent, into which one may not venture to penetrate without disturbing the personal value of the individual. Honor locates such an area. Language indicates very nicely an invasion of this sort by such phrases as 'coming too near' (zu nahe traten). The radius of that sphere, so to speak, marks the distance which a stranger may not cross without infringing upon another's honor. Another sphere of like form corresponds to that which we designate as the 'significance' (Bedeutung) of another personality, (p. 95)

These observations on space, as a prelude to a discussion of secrecy, will resonate especially for those readers who will have had some exposure to more recent theories of proxemics such as Hall's as well as intercultural perspectives on privacy such as Capurro's, Nakada and Tamura's. Likewise, SimmePs many insights into the types of information flows in all types of interpersonal relationships would in the twenty-first century often be relevant to modern-day discussions on privacy, the right to unhindered development of personality and informational self-determination. Simmel also takes the discussion onwards to relate secrecy to privacy and urbanization: Accordingly, politics, administration, justice, have lost their secrecy and inaccessibility in precisely the degree in which the individual has gained possibility of more complete privacy, since modern life has elaborated a technique for isolation of the affairs of individuals, within the crowded conditions of great cities, possible in former times only by means of spatial separation, (p. I l l )

If Simmel can be categorized under sociology, Barry Schwartz's 1968 work, 'The Social Psychology of Privacy' (Chapter 7), which is selected to be the second essay in Part II, contains in its very title a claim to tackle the social psychology of privacy, although it appears in the same venerable American Journal of Sociology albeit over 60 years later. Schwartz follows up the claim in the title by dedicating the first part of his essay to demonstrate how patterns of interaction in any social system are accompanied by counterpatterns of withdrawal and then makes the assertion that 'one sociologically relevant approach to this problem is through the analysis of privacy, which is a highly institutionalized mode of withdrawal' (p. 141). Very interestingly, Schwartz then goes on to examine the group-preserving functions of privacy, something on which perhaps not enough attention has been given over the recent past. Schwartz puts it thus: Withdrawal into privacy is often a means of making life with an unbearable (or sporadically unbearable) person possible. If the distraction and relief of privacy were not available in such a case, the relationship would have to be terminated if conflict were to be avoided, (p. 141)

Possibly building on Simmel's ideas about the 'significant' person expressed 60 years earlier, Schwartz then dedicates another part to his arguments as to how privacy helps maintain status divisions. Here again one notes the attention paid to space: In the armed forces, for example, the non-commissioned officer may reside in the same building as the dorm i toned enlisted man but he will maintain a separate room. The officer of higher rank will live apart from the non-commissioned, but on the same base, often in an apartment building; but officers of highest status are more likely to have private quarters away from the military establishment, (pp. 142-43)

xx

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Some of the reasons for the distinctions made by Schwartz may possibly not hold water on closer inspection since there may be other non-privacy-related reasons for physical segregation, not least of which is the psychology of perks, remuneration and in some countries more than others, perennial class divides. Schwartz does however recognize the economic angle already raised in Marcus' essay (Chapter 1) cited above and states 'Privacy has always been a luxury' then citing Phyllis McGinley: The poor might have to huddle together in cities for need's sake, and the frontiersman cling to his neighbor for the sake of protection. But in each civilization, as it advanced, those who could afford it chose the luxury of the withdrawing place. Egyptians planned vine-hung gardens, the Greeks had their porticos and seaside villas, the Romans put enclosures around their patios ... Privacy was considered as worth striving for as hall-marked silver or linen sheets for one's bed. (p. 143) Quite a fair deal of attention is next devoted to privacy and deviation which takes up the next part of Schwartz's essay. Schwartz is at pains to show that 'privacy also opens up opportunities for such forms of deviance as might undermine its stabilizing effects' (p. 144). The longest part of all however is the one devoted to the way human beings interrelate within physical and geographical spaces, in Schwartz's case beguilingly titled as 'Privacy and establishments' (p. 145). Following Lindesmith and Strauss, he notes that 'properties concerning interpersonal contact and withdrawal are institutionalized in the architecture of buildings' (p. 146) and then proceeds to tackle a number of aspects including bathrooms, doors, walls and other features of modern urban architecture. Most interestingly, he mentions the idea that 'self concealment serves, among other purposes, that of preserving a sort of ascendency over the unsophisticated' (p. 148) after which he cites Riesman: As compared with the one room house of the peasant or the 'long house' of many primitive tribes, he (the inner directed child) grows up within walls that are physical symbols of the privacy of parental dominance. Walls separate parents from children, offices from home, and make it hard if not impossible for the child to criticize the parents' injunctions by an 'undress' view of the parents or of other parents. What the parents say becomes more real in many cases than what they do. (p. 148) Schwartz's final part deals with various forms of 'deprivatization' in which he asserts that '[accidental leakages of information as well as the diverse modes of espionage threaten the information control that privacy is intended to maintain' and then moves on to another aspect of self-revelation (or self-disclosure as we would tend to call it in the twenty-first century) 'information control also consists of purposeful information leakage and even the renunciation of secrecy' (p. 151). Fifteen years before the German Constitutional Court in the 1983 census case identified informational self-determination as an essential component of the right to unhindered development of personality, Schwartz was mulling over the social psychology aspects of self-disclosure including the temptation offered by convenience (though he calls this 'expediences'). The theme of space is very much present in the third essay reproduced in Part II of this volume, by Eric Sundstrom and Irwin Altman, 'Interpersonal Relationships and Personal Space: Research Review and Theoretical Model' (Chapter 8), with the focus this time being on personal space. In this essay published in 1976 Eric Sundstrom and Irwin Altman took stock of the situation regarding research on interpersonal relationships and personal space some 10 to 15 years after Hall had brought proxemics to relative prominence in the early to mid-1960s.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxi

Altrnan is one of America's foremost social psychologists who was based at the University of Utah and, at the time of researching the essay reproduced in this volume, had, in 1973, just published what is still considered to be his most important work on social penetration theory (Altman and Taylor, 1973). Eric Sundstrom was one of Altman's PhD students at Utah who actually obtained his PhD in 1973 and then presented the theoretical model at the 82nd conference of the American Psychological Association in a symposium entitled 'Getting Close: Personal Space and Privacy' held in New Orleans in 1974. Altman meanwhile had in 1975 published another book (Altman, 1975) which took into account over 200 empirical studies carried out on personal space and interpersonal distance in the 10-15 years preceding publication. This essay was therefore selected for this volume since it represents a neat and tidy effort to bring together a theoretical model developed as PhD work and a categorization of an interesting corpus of data obtained from early fieldwork applying proxemics. The essay reviews research on personal space that deals with interpersonal relationships, attraction and spatial invasion. It set out to review and integrate the data then available on these topics and to propose a simple model that could encompass the major findings. Sundstrom and Altman do a very useful job of categorizing techniques for studying personal space and reviewing the research findings of dozens of other researchers, organizing the latter into two main groups: studies of ongoing interaction and spatial invasion. The model produced is neither overcomplex nor surprising: it is based on an optimal, comfortable distance that becomes smaller with friends and larger if individuals do not intend or expect to interact. It is the process by which the authors arrived at the model that makes this essay most interesting for the privacy scholar. The fourth essay in this part, Irwin Altman's 'Privacy Regulation: Culturally Universal or Culturally Specific?' (Chapter 9), builds upon the preceding eight essays in this volume in a number of ways and was selected because of its potential to bring together some strands of thought also explored in the previous essays in a way which may be useful to privacy scholars from various disciplines. It is another essay by Irwin Altman, this time writing alone and only a year after he had published his co-authored essay with Sundstrom, in which he is asking whether privacy regulation is culturally universal or culturally specific. This approach obviously ties in with those other essays cited above which are dealing with intercultural perspectives on privacy or indeed differences induced by belief/religious components in culture. The most significant difference of course is that whereas the previous authors brought perspectives on this aspect from disciplines as diverse as anthropology, philosophy, sociology and technology law, Altman offers insights which are understandably influenced by his approach as a social psychologist. His claims to innovation are made early in the essay and may be broadly categorized into six parts. First, Altman again2 offers his own conceptualization of privacy, one which I am here highlighting in order that the reader can contrast that with various other conceptualizations which will be reproduced in the third part of this volume: 'privacy as the selective control of access to self, involving dialectic, optimization and multimodal processes' (p. 176). Which is short and sweet provided that the reader can understand what Altman means when he is talking of 'dialectic, optimization and multimodal processes'. In this case he is paraphrasing the conceptualization offered in his 1975 book, The Environment and Social Behavior (Altman, 1975). 2

xxii

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Second, Altman performs a very useful task which endears him to any editor of an anthology: in less than two pages he summarizes the conceptual framework which two years previously he had taken up much space in a 256-page book to expound. This makes it easier for the reader to understand what Altman means when he talks of a dynamic dialectic process: 'As such, privacy is a boundary control process whereby people sometimes make themselves open and accessible to others and sometimes close themselves off from others' (p. 176). He then explains what he means by an optimization process: Traditional views of privacy often imply a monotonic process, to the effect that the more privacy one has the better off one is. I treat privacy as a nonmonotonic process, with departures from some optimum level of interaction in either a 'too much' or 'too little' direction being unsatisfactory, (p. 176)

Altman holds that this approach 'integrates the concepts of crowding and social isolation with privacy: Crowding is a deviation from a desired level of interaction in a too much direction, and isolation is a deviation in a too little direction' (p. 176). He finally explains what he means by a multimechanism process which includes verbal and paraverbal behaviours such as personal space and territoriality, and culturally defined styles of responding which taken together may be considered to be behavioural mechanisms which operate as a system. Third, Altman wittingly or unwittingly answers a question which has vexed a number of privacy scholars in private if not overly in public: what is the evolutionary advantage of privacy? What is the function that privacy has played down the millennia to render it universally useful to men and women in so many different cultures? Altman uses his own conceptual framework to assert that: 'privacy serves three functions: (a) management of social interaction, (b) establishment of plans and strategies for interacting with others, and (c) development and maintenance of self-identity' (p. 177). There are of course limits to how much Altman could paraphrase himself and at one point he gives up and simply cites a key paragraph from his 1975 book which is important enough to also cite here: Privacy mechanisms define the limits and boundaries of the self. When the permeability of these boundaries is under the control of a person, a sense of individuality develops. But it is not the inclusion or exclusion of others that is vital to self definition; it is the inability to regulate contact when desired. If I can control what is me and what is not me, if I can define what is me and not me, and if I can observe the limits and scope of my control, then I have taken major steps toward understanding and defining what I am. Thus, privacy mechanisms serve to help me define me. (Altman, 1975, p. 50)

Now this is of course, a most interesting take on the fundamental nature of privacy. It led to Altman sharing Alan Westin's (1967) analysis and speculating that 'the psychological viability of an individual or a group was dependent on the ability to control interactions with others, and that privacy regulation was a culturally pervasive process' (p. 177). Which then led him to the conclusion that 'the possible universality of privacy concerns the capability of a person or a group to regulate interaction with others, sometimes being open and sometimes being closed, depending upon circumstances' (p. 177). Altman also reflected on the differences between cultures as well as the universality of privacy: 'On the other hand privacy may be culturally unique in terms of the particular behavioral and psychological mechanisms used to regulate it' (pp. 177-78). He tries to strike a balance even in his concluding comments when summing up his thinking about the cultural pervasiveness of privacy regulation:

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxiii

'It seems that the ability to regulate interaction is necessary for individual and cultural survival, and unless people have figured out ways to control interaction, their status as intact human beings can well be in jeopardy' (p. 191). This may lead privacy scholars to formulate a principle analogous to the legal maxim ubi societas ibi ins such as ubi societas ibi privacy. Altman usefully proposes some differentia specifica suggesting that privacy may be universal insofar as people in all cultures engage in the regulation of social interaction - sometimes being accessible to others and sometimes being inaccessible to others but at the same time identifying some differentiating factors. He suggests that the behavioural mechanisms by which accessibility is controlled are probably unique to the particular physical, psychological and social circumstances of a culture. Fourth, when assessing the cultural universality of phenomena, Altman usefully explains the many pitfalls and complexities associated with any search for universals. Relying heavily on Lonner and theories of cultural relativism which state that each culture or group of culture is unique and must be understood in its own right, Altman dutifully makes the point that 'seeking universals may be an ethnocentric or 'etic' flaw, and a culture's functioning may be misperceived by forcing on it another culture's perspective' (p. 179) while balancing that approach with the opposite view that 'a purely relativistic approach may ignore generic similarities among peoples, and there is value in searching for commonalities across cultures while still recognizing cultural uniqueness' (p. 179). This is especially important for privacy scholars searching for both commonalities and uniqueness. They should not do so for ideological reasons or by trying to shoehorn one cultural perspective onto another culture. Yet privacy scholars, lawyers especially, could be forgiven for looking around hard for universalities since if any are found these might provide a reasonable basis for reasoning about rights to privacy which may also be universal, irrespective of, say, wherever one accesses the Internet or one's nationality or religious beliefs. It is at this stage that Altman poses a most pertinent question about the difficulties inherent in researching privacy across cultures: Suppose that we describe a mechanism by which a given culture's participants make themselves more or less accessible to others. How are we to infer that these mechanisms are truly in the service of privacy regulation versus (or in addition to) serving religious, dominance, political and other functions? (p. 180)

In a quest to deal fairly with the problems of inference Altman takes a dual approach: he analyses extreme cases of privacy expecting to find compensatory mechanisms that modulate the apparent extreme instances of total privacy or total lack of privacy. At the same time he also analyses social relationships in a given culture trying to identify cases where cultural circumstances may have forced frequent and/or socially sensitive contacts and in turn resulted in compensatory mechanisms that permit people to avoid one another in certain ways. Fifth, in his quest for compensatory mechanisms, Altman embarks on a succinct review of cultural examples of privacy regulation. Here he precedes Harrington Moore, Jr (1984) by nearly seven years in shining a light on privacy by looking at it in the context of indigenous peoples scattered in various parts of the globe. Altman takes his theories on dialectic, multimechanism analysis of privacy and examines the extent to which they are evident in the Mehinacu culture of central Brazil citing Gregor (1974, p. 348) for an extremely valuable insight into the privacy-related behaviour of a tiny, isolated, allegedly primitive, non-urban group of Amazon Indians:

xxiv

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Information on rules of privacy ... may be buried in descriptions of etiquette, or must be inferred from the characteristic house type and settlement pattern...The diffuse definition of relationships and the exposed settings characteristic of many primitive communities demands a different kind of ethnography; an ethnography sensitive to the delicate interplay of privacy and publicity which emerges from social conduct, (p. 183)

This delicate interplay of privacy and publicity in any kind of society, urban or non-urban, recently formed or primitive, as traced by several authors before and since Altman is a key thing to be borne in mind when considering the more recent claims coming from certain quarters that 'privacy is dead' (Manes, 2000, p. 312) or that 'privacy is an anomaly' born out of man's recent move into urban environments (Fernstein, 2013). Altman then turns his attention away from the Amazon, and takes the reader on a brief but fascinating ethnographic tour into Javanese culture, the Pygmies of Zaire and on to Woleia atoll all three of which he offers in addition to the Mehinacu as examples of 'Cultures of Apparently Minimal Privacy' (p. 181). From these he moves on to the other end of the privacy spectrum or what he terms 'Cultures with Apparently Maximum Privacy' (p. 185) where he all-too-briefly surveys Balinese culture and Tuareg culture. While Altman is clearly in pursuit of facts which support his theory of dynamic and dialectic features of privacy management, there is no apparent attempt to make the facts fit the theory. On the other hand his approach remains plausible throughout. If anything, the problem is not with what Altman includes but possibly with what he does not know about and which he therefore has to leave out. In other words, are there other examples from other cultures which may possibly run counter to the theory supported by the examples presented by Altman? Part of the PAPC-PACIT and inCONNECTS projects devised by this author deliberately set out to widen the corpus relied upon by Altman in order to confirm further or possibly contradict his theory. Barring any new evidence to the contrary which has still to be discovered or validated, Altman's theory as based upon different indigenous cultures remains one of the most convincing to date. Sixth, Altman moves on from privacy regulation in individual cultures and concentrates his attention on social relationships and social processes with a particular focus on specific social relationships such as husbands and wives or in-laws. In this part he examines privacy in three types of bonds: (a) peripheral relationships, such as strangers and acquaintances; (b) more extensive bonds, such as in-laws; and (c) close relationships, between husbands and wives and parents and children. In each of these three cases he reverts back to ethnographic studies of indigenous peoples around the world seeking other examples supporting his hypothesis. Starting with short references to the relationship between the African Pygmies and the Bantu Negroes and then the Lapps of Northern Europe, Altman then cites examples from Australia relying heavily on Peterson's 1975 work. The short, three sentence reference to the more paced regulation of contact with strangers typical of various groups of Australian Aborigines where typically messengers or visitors remained at the fringes of an encampment or community until an escort was sent out to receive them resonates with those readers who may have previously read W.E.H. Stanner's work included earlier in this volume (Chapter 2). Hindsight allows us to see today that which was most probably unknown to both Altman and Stanner. In the same year that Altman was working in the United States on his theories of privacy regulation and inter alia making reference to the behaviour of Australian Aborigines, Stanner was in 1977 authoring a short manuscript on privacy and the aborigines for consideration by the Australian Law Commission. As far as we can see they were working independently but using the same

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxv

types of observations and arriving at the same conclusions despite the fact that one is a social psychologist and the other an anthropologist. Philip Leith3 provides us with the fifth essay, 'The Socio-Legal Context of Privacy', in this second part, Chapter 10 in this volume, this time examining the sociolegal context of privacy. Leith's essay is valuable for our purposes here in many ways. First, it brings to the reader's attention yet another methodology to help deal with privacy: the sociolegal approach. For the non-specialist reader it is important to put some things and Leith's contribution in context and specifically in its UK context. Indeed this is the first essay in this volume which comes from somebody who, while very much a thinker in his own right, remains an author moulded in the British tradition, whereas all the others selected so far have come either from Continental European, hybrid,4 US or Australian5 traditions. In his essay Leith speaks of a 'sociolegal community' and 'sociolegal researchers' but in reality do we have a comprehensive, universally accepted definition of'sociolegal'? It may be useful to note, especially since this essay and the 3

Philip Leith has been a pioneer in legal informatics, legal thinking and legal education for over 30 years. Commencing his PhD in computer science in 1981, he was among the first, if not the first, to oppose very controversially the idea of legal expert systems in the mid-1980s. He had been among the first, together with Abdul Paliwala to recognize the great potential of computers in legal education as well as in legal practice during the period and, having moved to a law school before defending his PhD in the mid-1980s, has since contributed significantly to on-line publishing in law, as well as writing books and essays on subjects as diverse as software patents and European Digital Inclusion. Leith's interest in sociology as reinforced by the formal training in his first degree was never far from the surface. Already in 1990, in his book Formalism in Aland Computer Science, he had a chapter dedicated to the 'Sociology of Computing'. Leith had already demonstrated his critical mind when challenging the value of logic programming in legal expert systems in his 1986 essay 'Fundamental Errors in Legal Logic Programming' and his output demonstrates a long-standing allergy to most forms of ideology. Indeed he himself later admitted that his stance in the 1980s was due to the fact that 'to me - Prolog had become the tool of an ideological movement and the tone of my essay was perhaps less measured than it might otherwise have been'. In this 2006 essay on privacy (Chapter 10), Leith again seems to be moved by the appearance of the successful development of privacy and data protection law as being the success of an ideology rather than the triumph of the measured march of science. 4 Authors born and reading for their first two or three degrees in ex-British colonies (for example, Cannataci, Stanner) may have been fortunate enough to imbibe deeply from anywhere between three and five academic traditions (Continental European itself marked by substreams in French, German, Polish and Italian thinking, US approaches which in sociology are much less close to the British approach than they are in law, Australian (necessarily marked by the character of that vast island-continent and its indigenous peoples) and, ever present but often kept at bay by some non-anglophile or alternatively promoted by some anglophile local or British expat lecturer, some strand of thinking from some British author. 5 Although Bill Stanner obtained his PhD in anthropology in the UK at the London School of Economics before the Second World War (1936-38) he had already previously excelled in the same subject in both his BA and his MA at Sydney in Australia and at LSE was anyway also influenced by the continental tradition studying under Bronislaw Malinowski. Bill Stanner then continued to mould himself in a uniquely Australian way through his further decades of work with Australian aboriginal peoples. He also claimed to have been influenced in his early years by English social anthropologist Alfred Radcliffe-Brown who in turn had been deeply steeped in the continental tradition influenced especially by Emile Durkheim while at the same time working extensively in Australia at the time when Stanner entered into the field of anthropology.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxvi

The Individual and Privacy

entire volume is intended for a worldwide audience as opposed to a mainly UK readership, that the term 'sociolegaP has acquired a peculiarly UK connotation over the past 40 years since it was first reviewed in the mid-1970s, most notably by Campbell and Wiles (1976). It is not to be confused with sociology of law which, as a discipline or subdiscipline, was born much earlier in continental Europe more or less at the same time as the birth of sociology as a discipline, notably led by the works of Emile Durkheim and Max Weber in the period 18931922. It would appear that 'sociolegal studies' grew out of the interest of UK law schools in promoting interdisciplinary studies of law (Banakar, 2009). Michael Adler (2007, p. I), a Professor of Sociolegal Studies at the University of Edinburgh, defines sociolegal studies as 'the branch of legal scholarship that uses the methods of the social sciences to throw light on the workings of law and legal institutions'. In other words, sociolegal studies is not about sociologists in general investigating the sociology of law. It is about legal scholars, normally working within a UK Law school, who may or may not have had formal training in sociology, who are inclined to use methods normally developed by sociologists or other social scientists outside the law school. The study of law has acquired many peculiarities in the UK over the past 600 years and sociolegal studies is no exception, placed in the context of English Law's focus on 'black-letter' law. Even in its very early stages, when sociolegal studies broke out onto the scene in the late 1960s and early 1970s: The new socio-legal approach is regarded as subversive by some law teachers ... To these critics the proper domain of the law teacher is 'hard law' or 'black-letter law' - the careful analysis and exposition of positive or written law. Their resistance to possible encroachments from socio-legal researchers who wish 'to broaden the study of law from within' or to teach 'contextual law' is reinforced by suspicions that socio-legal work is too much concerned with the policy of the law, and sometimes even with the politics of the law. (Campbell and Wiles, 1976, p. 550)

It has been argued and perhaps most persuasively by Adler that 'sociolegal studies' has not really progressed very much in the UK since the 1970s. Within months of the publication of Leith's essay, in itself a naked appeal for a more empirical approach to privacy by the sociolegal community, Adler published his own reality-check on the health or otherwise of sociolegal studies in the UK. Having been a member of the UK's body responsible for assessing the quantity and quality of empirical research in sociolegal studies, his findings make sobering reading. In summary he was asking the question: why has the study of criminology in UK law schools progressed so much and sociolegal studies so little during the previous decades? Adler's conclusion was that there were simply not enough legal scholars trained to use the empirical methods of the social sciences. When assessing the tiny quantity of sociolegal researchers in the UK and the performance of one of the few UK centres of excellence working in the field, the Oxford Centre for Sociolegal Studies, Adler concluded that: Although many outstanding empirical studies were carried out at the Oxford Centre and many of those who worked there are now in leading positions in UK universities, their dispersal has been associated with a decline in the volume of empirical sociolegal research and in the number of sociolegal researchers who have the skills necessary to carry out this kind of research.

So it perhaps comes as no surprise that, rather than being the result of individual efforts carried out by UK-based sociolegal scholars, the vast bulk of empirical work carried out on

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxvii

privacy in Europe since Leith's 2006 appeal has been organized from outside the UK often by interdisciplinary teams set up in the idM APP1NG formula and more often than not within EUsupported research projects. Leith himself has been involved in at least one of these projects6 where his presence continues to be inspirational while he struggles with the very dilemma that he presents in the essay reproduced in this volume where he suggests that 'privacy is becoming less prevalent in society; primarily because of technological and cultural changes, but also because the technical legal implementation of privacy is highly problematic' (p. 195). Leith's essay is particularly interesting since it challenges the assertions and assumptions behind data protection and privacy law and appeals for an empirical approach which would carry out a more robust analysis of the claims and rhetoric of these rights. It is impossible to agree more with Leith that more empirical research is required, which is why this author has systematically designed, launched or co-launched over a dozen privacy-related empirical projects7 over the past decade alone. It remains to be seen however whether Leith is right in assuming that a more robust investigation of privacy will 'change our attitudes towards privacy developments' (p. 195).8 Moreover I will leave it to the reader to decide whether Leith succeeds in 'undermining the legal notion of privacy as an individualistic 'fundamental right' by using the sociological conception that 'underlying all social interaction there seems to be a fundamental dialetic'. In line with our attempt here to introduce the reader to a variety of disciplines, tools or methodologies which may be useful in better understanding the evolving phenomenon of privacy we shall move on from Leith's sociolegal approach to two complementary ones which actually may go some way to providing the type of closer investigation of privacy using empirical methods that Leith clearly yearns for. Sociology and social psychology as well as consumer behaviour are all disciplines or subdisciplines which often rely heavily on 'instruments' which somehow attempt to measure attitudes and perceptions in order to chart new waters or support some theory. The next essay, 'Guide to Measuring Privacy Concern: Review of Survey and Observational Instruments' (Chapter 11), in this part is by SOren Preibusch which has been selected for inclusion since it provides a very useful overview, indeed a snapshot of the state of the art with regard to empirical tools being used to measure privacy concerns in 2013. Its focus on survey and observational instruments helps one understand why as much as how privacy concerns are being measured in certain ways. In its first part Preibusch provides a comprehensive review of existing survey instruments for measuring privacy concerns. The second part focuses on 'revealed preferences that can be used for opportunistically measuring privacy concerns in the wild or for scale validation' (p. 227). Very usefully for hands-on privacy researchers interested in deploying one or more of the instruments surveyed, Preibusch includes recommendations for scale selection and reuse. Preibusch was first trained in industrial engineering in Germany and followed his PhD from Cambridge by moving to become a post-doc at Microsoft Research also in Cambridge, UK, 6

CONSENT (at: https://www.consent.law.muni.cz/). For more details about some of these projects see https://www.consent.law.muni.cz/, http://www.smartsurveillance.eu/, http://respectproject.eu/, http://www.mappingtheinternet.eu/ and http://www.evidenceproject.eu/. 1 Most, if not all of the empirical results obtained in the projects in which this author is involved suggest that concern about privacy is growing and that people care about the fundamental values that privacy and data protection law set out to protect. 7

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxviii

The Individual and Privacy

maintaining his interest in the entire life-cycle of privacy policy negotiations. His research focuses on the behavioural economics of privacy, including electronic market interactions, on-line social networking and the mobile web. Preibusch's essay is interesting among other things in its explicit treatment of the privacy paradox 'the mismatch between self-professed privacy attitudes and awareness on the one hand and privacy-undermining behaviour on the other hand' (p. 228). By way of example Preibusch cites Kobsa's description of the interplay between privacy and personalization: 'consumers want to enjoy the benefits from profiling but they do not want to be profiled' (p. 228). The empirical methods advocated by Leith but used by professional pollsters such as Gallup rather than sociolegal researchers reveal that when surveyed about data protection issues, consumers report high concerns about their information privacy. Nonetheless, the on-line population increasingly engages in on-line activities deemed privacy-threatening, namely on-line social networking (p. 228, citing Acquisti and Gross). Preibusch succinctly describes the privacy paradox as 'an existential challenge for endeavours to measure privacy concern: why would one be interested in attitudes that do not translate into behaviour?' (p. 228). He goes on to provide a response to his own question: 'My answer to this is twofold. First disagreement between the two can be explained as a consumer's rational choice. Second, we have yet to understand how attitudes and behaviour actually diverge' (p. 228). After due consideration he acknowledges that privacy attitudes and behaviour do not always agree which lead to 'the methodological conclusion is to measure both in their own right and with their specific procedures' (p. 229). The instruments surveyed by Preibusch and the underlying theories were well known to the group of researchers involved in the EU-supported FP7 CONSENT project9 but they actually went a step further in devising the methodology used for the quantitative and qualitative empirical research carried out within CONSENT. This corresponded neatly to the concern displayed by Leith about the need for a closer investigation of privacy claims when faced with the possibility of individual consent becoming a dogma in the privacy scene. In Chapter 12, 'Theoretical and Practical Considerations for Online Privacy Research: CONSENT as a Case-Study', written by invitation for this volume, Noellie Brockdorff, Liberate Camilleri, Marco Montalto, Albert Caruana, Saviour Chircop and Jeanne Pia Mifsud Bonnici focus on something which is very topical in the second decade of the twenty-first century where the Web has become ubiquitous and where anything and everything appears to be moving or has already moved on-line. Their attention therefore revolves around on-line privacy research and their essay includes both theoretical and practical considerations using CONSENT as a casestudy. CONSENT, a three-year project co-financed by the European Union (EU), investigated whether recent changes to consumer and commercial practices have resulted in users of the Internet giving up their fundamental right to privacy. As part of this project a large-scale on-line survey was carried out to determine the attitudes and associated behaviours relating to privacy of users of social networking sites (SNS) such as Facebook and Google+, and user-generated content websites (UGCs) such as YouTube and Wikipedia. Once again this essay was selected since it provides yet another different perspective on privacy research. Brockdorff is a cognitive psychologist who has also collaborated in various forms of privacy research for over 20 years and in this essay she leads a team which includes specialists in 9

At:https://www.consent.law.muni.cz/.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxix

statistics (Camilleri), marketing (Caruana), media (Chircop) and technology and human rights law (Mifsud Bonnici). The cognitive science approach, interdisciplinary and multidisciplinary by definition, is evident in this essay yet can also be seen to be a natural progression along a continuum from the work in the 1960s and 1970s of social psychologists like Altman and Schwartz. Just as importantly Chapter 12 illustrates how privacy-related empirical research is being carried out in a real-life urban context in the second decade of the twenty-first century, not within the UK sociocultural tradition but very clearly within the much broader idMAPPING paradigm. The Brockdorff essay holds four main areas of interest for the reader. First, it explains how the CONSENT on-line questionnaire was developed within a coherent theoretical framework and included psychometrically sound measures drawn from the literature. Second, it demonstrates how the measures focused on beliefs about technology and about privacy together with personal characteristics and privacy-related behaviour. Third, it illustrates in relative detail how exploratory factor analysis confirmed that the measures used have good psychometric properties. Fourth, it includes some practical considerations by describing the approaches adopted by an interdisciplinary research team in implementing the CONSENT survey in 21 languages across the EU. Th is essay will certainly interest those readers who m ight possibly enjoy the finer detail about the way that cognitive psychologists deem something to be psychometrically sound by using the tools of another discipline such as statistics (see, for example, its use of oblique- varimax rotation) but most readers would actually be interested in the chapter's summary conclusions about measures which can be used in an on-line instrument probing privacy: In the CONSENT online study beliefs about technology, beliefs about privacy, privacy-related behaviour and personal characteristics relating to privacy were identified as factors that may contribute towards an understanding of the attitudes of Internet users towards online privacy. The seven multi-item measures used in the study -perceivedprivacy risk, privacy social norms, perceived ease of use, general caution related to privacy issues, technical protection of privacy, tendency to self-disclosure and disposition to value privacy - were found to support the reliability and aspects of internal validity of the instruments that sought to capture the constructs used in the research. Two single-item measures of beliefs about technology, perceived playfulness and perceived critical mass, have both been found to be predictors of opening of an account with a SNS and of changing the privacy settings on personal profiles on UGCs. (p. 255, emphases in original)

Having started with Simmel, one of the oldest essays on secrecy from the then scarcely born discipline of sociology from 1906, Part II of this volume thus concludes its exploration of the relationship between space and privacy with Brockdorff et al.'s analysis of the state of the art of measuring privacy concerns in cyberspace. This paves the way for the third and final part which is more concerned with place as opposed to space. The Cultural Dimension: Conceptualizations of Privacy and Personality around the World As has been seen in the case of Altman among others, although scholars investigating the core of privacy may often start with or focus upon the concept of space they often then progress to examining this within the context of place, wandering from one location to another carrying

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxx

The Individual and Privacy

out a process of comparative analysis to see whether privacy-related behaviour is comparable in different places around the planet. The third and final part of this volume sets out to give the reader a flavour of aspects of privacy in the larger industrialized nations of Asia, America and Europe as well as in several developing countries though, constrained by space considerations, this cannot promise to be an exhaustive in-depth investigation of individual approaches to privacy of all the countries on every continent of the planet. While the places may be different, the perspectives are not gleaned from different disciplines but are drawn almost exclusively from one discipline: with one exception (Hosein) all the authors selected for inclusion in this part are lawyers or have at some time received formal training in law. This is not to say that they have the same perspective for legal cultures are different, whether Common Law or Civil Law or hybrid and even within the classic distinctions of legal cultures one also finds a number of subcultures. Yet the reader is here also invited to reflect on whether a legal training does eventually produce such a thing as 'a legal mind' and whether this eventually translates into ordered forms of agreement or disagreement as to what privacy may or may not be in different parts of the world. In her enticingly titled 'The Dao of Privacy' (Chapter 13), Lara A. Ballard at first gives the impression of sharing Philip Leith's dissatisfaction with what Cohen had recently identified as 'ideological commitments' in the way we think about privacy. Ballard claims that she is picking up the gauntlet thrown down by Julie Cohen (2012) before the Western liberal tradition to a non-Western critique of privacy. Ballard thus attempts the difficult task of that of a Westerner trying to look at the Western concept of privacy through non-Western eyes. She holds that: 'It is at the metaphysical level, and not in the 18th century political works of Kant, where classical East Asian and Western thought diverge, in ways that have ramifications for notions of selfhood, privacy and the underlying "rhetoric of liberty'" (p. 269). Ballard contends that: There is not only a profound difference between classical Eastern and Western thought at the metaphysical level (with many commonalities between Daoism and the postmodernist thought supported by Cohen), but much evidence to suggest also a correlation between East-West metaphysical divergences and other East-West differences in cognitive and behavioral patterns. These differences are not rooted in race or biology; indeed, they are not only socially constructed but highly malleable, with considerable variety within cultures, and exposure to a different culture eventually alters one's own mode of thinking and even one's understanding of selfhood. They also vary considerably within cultures, (p. 269)

For one to understand better the approach taken by Ballard it is useful to first grasp the essentials of what is meant by Daoism for within that concept there are several implications for the non-specialist reader. Daoism stands alongside Confucianism as one of the two great religious/philosophical systems of China. Traditionally traced to the mythical Laozi 'Old Philosopher,' Philosophical Daoism owes more to 'philosopher Zhuang' (Zhuangzi) (4th Century BCE). Daoism is an umbrella that covers a range of similarly motivated doctrines.10

Stanford Dictionary of Philosophy, last accessed on 23 November 2013 (at: http://plato.stanford. edu/entries/daoism/). 10

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxxi

In this context, the very title 'The Dao of Privacy' would seem to have at least two meanings: 'Dao' as in its original sense of 'way' or 'path' thus rendering the title as 'The Way/Path of Privacy' but the cultural implication is that the essay is all about privacy as seen through Daoism or from a Daoistic perspective. Now many scholars have spent much time arguing as to whether like Confucianism, Daoism is both a philosophical approach as well as a religious belief system and I would leave it up to the reader (if so inclined) to try to decide whether it makes any difference at all to Bal lard's treatment of the subject. The bottom line it seems to me is that Daoism may be seen to be a perspective of those people who are influenced by Daoistic philosophy/beliefs and who have largely lived in the geographical place we call China. Indeed Bal lard explicitly states that her intention is to examine 'both privacy and privacy rights through the lens of traditional Daoist metaphysics' (p. 270) and that she chooses this route since 'Exploring Daoism is thus, at the very least, a reasonable initial attempt to include in the global privacy dialogue the traditions of the 702 million current Internet users who are Chinese, Japanese or Korean' (p. 271). When reading Bal lard's work it is also interesting to note that while she is trained as a lawyer she does not reason only with a lawyer's tools. She is very hard-nosed and matter-offact when considering if, when, how and why Asian states would actually embrace any form of global privacy standards. Throughout her essay she also very often leaves the machinations of international law and organizations to venture into both Oriental and Western schools of philosophy in an attempt at considering similarities and differences therein. Bal lard shows herself open to various forms of logic from various disciplines and concludes with reasoning that possibly defies categorization: Heraclitus warned us that we can never step into the same river twice, but the efforts thus far to control the use of rapidly changing technologies appear to be nothing so much as a series of massive dams erected at each national border, as if the flows of data have any inclination to stop at a passport control station, as if these flows won't simply be redirected elsewhere. If global privacy advocates wish to chase personal data down each of its tiny tributaries, across countless governments and cultures, they need to be much more clever, and display far more creativity than T can even offer in this Article. For I myself, at the end of this journey into the Dao, am both humbled and dubious that the key to protecting and cultivating the true Subjective Self could ever be articulated and committed to the words on a page. (p. 332)

Following Ballard's trek through ancient and modern Asian attitudes to privacy, it is time to cross the Pacific eastwards to the United States of America, the home of one of the two main Western streams on privacy thinking. Whereas Chinese culture and its related thinking go back thousands of years, the United States is the place where the modern debate on privacy was born, at least in legal terms. Daniel J. Solove has emerged as one of the leading privacy scholars in North America and two of his works have been included in this volume. The first and longer one, reflects the complexity of the privacy debate in the United States during the 124 years that the waves of the debate have ebbed and flowed through the law journals, text-books, statutes as well as both state and federal courts. In 'Conceptualizing Privacy' (Chapter 14) Solove opens his argumentation with an account of 'the widespread discontent over conceptualizing privacy' (p. 335) and proposes a new approach by making two principal arguments. His first main argument is that: 'With a few exceptions, the discourse seeks to conceptualize privacy in terms of necessary and sufficient conditions. In other words, most

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxxii

The Individual and Privacy

theorists attempt to conceptualize privacy by isolating one or more common "essential" or "core" characteristics of privacy' (p. 336-37). In contrast Solove argues that privacy is better understood by drawing from Ludwig Wittgenstein's notion 'family of resemblances' (p. 337). He follows Wittgenstein's suggestion that 'certain concepts might not have a single common characteristic; rather they draw from a common pool of similar elements' (p. 337). Solove's second main assertion in this chapter is that he attempts to propose a pragmatic approach to conceptualizing privacy. His approach 'diverges from traditional accounts of privacy that seek to conceptualize it in general terms as an overarching category with necessary and sufficient conditions' and suggests 'an approach to conceptualize privacy from the bottom up rather than the top down, from particular contexts rather than in the abstract' (p. 338). Solove's attempt at conceptualizing privacy is as good as it gets if one is seeking an introduction to existing US thinking about privacy, albeit Solove attempts to reorganize this thinking in an original way. While Solove takes a predominantly legal approach - and understandably a US legal perspective - he at times crosses disciplinary boundaries especially towards philosophy when considering Wittgenstein. It is sobering to note however that in nearly 70 pages of text what comes across is a very self-contained US-centred legal worldview - and in this Solove is necessarily reflecting the views as expressed in US case-law not necessarily his own personal approach to scholarship. Yet it would have been so much more reassuring to non-US readers to see a stronger element of comparative analysis with non-US sources especially in areas where fundamental concepts are discussed. Thus for example, Solove identifies dignity and personality as part of his conceptualization categories but loses out on an opportunity to compare these to the way that the principles of dignity and the right to unhindered development of personality have been considered to be a fundamental part of the privacy debate in a number of European countries and especially Germany. It is hoped however that the reader of this volume will be able to carry out such a comparative analysis himself or herself by reading those chapters in this third part that later deal with Lex Personalitatis and the situation in Germany. In another much shorter essay, '"I've Got Nothing to Hide" and Other Misunderstandings of Privacy' (Chapter 15), Solove renders an invaluable service to privacy scholarship by tackling an argument which recurs in every country, in almost every debate about privacy - that is, that 'if an individual engages only in legal activity, she has nothing to worry about in the face of data mining and mass surveillance and therefore 'nothing to hide'. He is especially concerned since the 'nothing to hide' argument is one of the primary arguments made when balancing privacy against security. He correctly identifies that 'in popular discourse, the nothing to hide argument's superficial incantations can readily be refuted. But when the argument is made in its strongest form, it is far more formidable' (p. 405). Thus he divides his essay into three parts, first examining variants of the 'nothing to hide' argument. The second part of this essay builds upon Solove's previous essay and its approach to conceptualizing privacy with Solove attempting to explain why 'existing theories of privacy have been unsatisfactory, have led to confusion, and have impeded the development of effective legal and policy responses to privacy problems' (p. 406). This second part is interesting and like the previous essay included in this volume useful in understanding some of the problems that privacy regulation has faced, especially in the United States. It is however a part in an essay and not a full-blown treatise and is, almost by definition, incomplete in the picture that it paints. It is respectfully suggested

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxxiii

that what is required for a better, more-rounded understanding of privacy is an openness by legal and other scholars worldwide to a far wider interdisciplinary approach underpinned by empirical studies in a multitude of contexts and places. In this way the conceptualization of privacy can be as scientific as it is pragmatic but much richer since it draws on several disciplines simultaneously. Solove comes into his own however in the third and final part of this essay where he argues 'that the nothing to hide argument - even in its strongest form stems from faulty assumptions about privacy and its value' (p. 406). As Solove succinctly puts it: 'The problem, in short, is not with finding an answer to the question:' If you've got nothing to hide, then what do you have to fear?' The problem is in the very question itself (p. 406). Before he gets to his final argumentation, Solove demonstrates his increasing maturity in the field by dedicating an entire part to 'the social value of privacy' (p. 418). Always at pains to point out that his various contributions including a taxonomy of privacy are very much 'work-in-progress' or as he puts it 'a bottom-up ongoing project' (p. 418), in the second part of this essay Solove again steps outside the strict confines of legal perspective and broadens the viewpoint to consider how many of the interests that conflict with privacy also involve people's autonomy and dignity. Here again he reflects on how: Security, too, is not merely a societal interest; it is essential for individual autonomy as well. Autonomy and dignity are often on both sides of the balance, so it becomes difficult to know which side is the one that protects 'the sovereignty of the individual', (p. 419) In doing so he spends the best part of a page taking Amitai Etzoni to task finding that 'in his critique of liberal theories of individual rights as absolutes, he views individual rights as being in tension with society' (p. 419). In the wider context of all the multidisciplinary and interdisicplinary perspectives presented in this volume, one would find it easy to agree with Solove when he finds that: 'The problem with Etzioni's communitarian view is that individuality need not be on the opposite side of the scale from community' (p. 420). As Solove takes us deeper into the blend of European and North American thinking that permeates US legal viewpoints on privacy, it is time to cross the Atlantic and head east in the direction of Europe in an effort to outline and understand some of the more prominent features of continental European thinking about privacy. My essay, 'Lex Personalitatis & TechnologyDriven Law' (Chapter 16), on Lex Personalitatis was intended to identify and further articulate an emerging trend in European law where, although a stand-alone right to private and family life may exist dejure, conceptually, privacy may additionally be understood as being merely one of three fundamental human rights which may be seen as 'enabling rights', subservient to the overarching rights to dignity and unhindered development of personality. I trace how the concept of personality is relatively new in literature as well as in law. In that essay I had intended to go one step further than Joel Reidenberg's concept of Lex Informatica,'' and in vite attention to an emerging field of law which, for the sake of convenience, 1 had dubbed Lex " In 'Lex Informatica: The Formulation of Information Policy Rules through Technology', Reidenberg tends to view Lex Informatica as the twenty-first-century equivalent to Lex Mercatoria and makes a very strong plea for a distinct body of law, Lex Informatica since 'default ground rules are just as essential for participants in the Information Society as Lex Mercatoria was to merchants hundreds of years ago. Confusion and conflict over the rules for information flows run counter to an open, robust Information Age' (Reidenberg, 1997-98, pp. 553-54).

xxxiv

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Personalitatis. By this I mean the 'Law of Personality' relating to personality rights in a much wider way than that understood by most common law-based commentators: The latter tend to divide personality rights into two broad camps: that of rights over commercial exploitation of image, name etc. and privacy rights ... By proposing a composite concept of Lex Personalitatis I am seeking to go deeper and also encompass the underlying reasons for both image/ identity-related rights and privacy-related rights. In essence, I am suggesting that we should be looking to a supreme value, the individual's fundamental right to unhindered (or free) development of his/her own personality. Tn this sense Lex Personalitatis is closer in conceptual definition to the German personlichkeitsrecht, and can be viewed as both a fundamental right (ius personalitatis) underpinning much of, and an integral component of, Lex fnformatica. (p. 433)

To illustrate the influence of German legal thinking on at least a dozen European states I cited the example of the Romanian constitution as an indicator of the shape of things to come: it appears to establish a three-tier hierarchy at the top of which one finds 'supreme values of dignity ...and the right to unhindered development of personality' (p. 434). In the second tier immediately below this one finds three constitutional provisions dedicated to information law: Art. 26 tackles the right to private life, Art. 30 the right to freedom of expression and Art. 32 the right to access public information. These constitutional provisions establish the basis on which the third tier of ordinary legislation on data protection or media or freedom of access to public files provide the more detailed rules which exist to promote a culture in which 'ground rules for the access, distribution, and use of information will shape the trust, confidence, and fairness in the twenty-first century digital world for citizens, businesses, and governments' (p. 434). The essay on Lex Personalitatis presented me with an opportunity to demonstrate that the link between technology and the legal position is actually much older than the invention of the modern computer. I pointed out that: In Germany, like France and the US, personality rights were largely born out of technological development, this time the birth of photography in the nineteenth century. The 1898 Bismarck case around unauthorised images of a person led to the 1907 copyright clauses in Kunsturhebergesetz (Law on Copyright in Arts) in §22 which granted rights to an individual captured in a portrait, (p. 435)

I afterwards contrasted the German approach with developments '[a]cross the border in France, whereas the Napoleonic Civil Code of 1804 ignored personality rights, the technology of film and the endless pursuit of actress Brigitte Bardot brought changes to French law by the last quarter of the twentieth century' (p. 435). The essay concludes that: In spite of the considerable lead it has taken in such matters in Europe, Germany's thrust on ius personalitatis is still very much work-in-progress ... while the entire subject of Lex Personalitatis cries out for a structured and purposeful debate at the highest levels across Europe. ... possibly [resulting in] a more carefully thought-out over-arching, pan-European principle of ius personalitatis. (p. 436)

Given the current fragmentation in debate and approach, 'As things stand, some countries are developing and embracing Lex Personalitatis while others profess to go for "fair information practices" but implicitly or explicitly reject the notion that ius personalitatis exists in their law', (p. 436)

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxxv

In the essay on Lex Personalitatis I had suggested that legal cultural and language barriers have prevented much of the world from understanding the depth and value of German legal thinking on personality and privacy over the past 50 years. In a direct response to that observation,12 Gerrit Hornung and Christoph Schnabel wrote a two-part essay13 which provides a very useful overview, in English, of the major developments about personality and privacy in German law until 2009. In the first part (Chapter 17) they examine the landmark 1983 decision of the German Federal Constitutional Court in the population census case which permitted that court to articulate the right to informational self-determination in the context of the fundamental over-arching right to free and unhindered development of personality established in the German Grundgesetz.14 The right to informational self-determination as distinct from but linked to privacy is a concept which, implicitly or explicitly has since crept into the laws of many individual nation states as well as certain provisions of European Law. This concept revolves around the idea that each individual has the right to control the flow of information about himself or herself. This right is exercised in a manner which is not absolute but subject to the rights of other interested parties. A careful reading of the practical effects of such a right resonates with the reasoning outlined in various other chapters of this book most notably those by Irwin Altrnan. In the second part of the essay (Chapter 18), the authors then examine some of the most significant developments in privacy and data protection law in Germany which had by then (2009) taken place in the quarter-century which had elapsed since the census case decision was delivered in 1983. These include another landmark decision of the German Federal Constitutional Court this time dealing with the articulation of a fundamental right to confidentiality and integrity of information technology systems. The essay also examines how these principles affect the deployment in Germany of modern technologies like automatic number plate recognition (ANPR). Part of the essay also deals with the Data Retention Directive which has since been found to be invalid by the European Court of Justice.15 Having dedicated considerable space to exploring the leading contemporary European contributions to the development of privacy, data protection and personality law, it is time to cross the European continent back to Asia, the original point of departure for the third and final part of this volume. Having started off with the Dao of Privacy in very much a generic pan-Asian approach, the essay by Cao Jingchun, 'Protecting the Right to Privacy in China' (Chapter 19), is a more in-depth look at the protection afforded to privacy in China. After a brief introduction to the history of privacy in China, the author suggests that the 12 This article is an attempt at helping overcome the language barrier that has prevented much of the world from understanding the depth and value of German legal theory on data protection. (This article is thus following an appeal made by J.A. Cannaatci, ''Lex Personalitatis & Technology-driven Law', @ SCRIPTed, Volume 5, Issue 1, April 2008, p. 3, as reproduced in Hornung and Schnabel (Chapter 17, p. 437). 13 The first part was published as Gerrit Hornung and Christoph Schnabel, 'Data Protection in Germany I: The Population Census Decision and the Right to Informational Self-Determination' (Chapter 17). The second part was published as Gerrit Hornung and Christoph Schnabel, 'Data Protection in Germany II: Recent Decisions on Online-Searching of Computers, Automatic Number Plate Recognition and Data Retention' (Chapter 18). 14 The Basic Law which functions as Germany's constitution. 15 April 2014.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxxvi

The Individual and Privacy

Western concept of privacy has been absorbed by Chinese scholars and defined according to Chinese norms. Cao Jingchun opines that during this process 'the subjects and objects of the right to privacy have been chosen and the distinctions between the right to privacy, the right of reputation and the right to know have been made clear' (p. 451). It is suggested that Cao Jingchun has demonstrated that these concepts have been discussed and analysed but whether the final result is a model of clarity is arguable. This essay has been selected since it provides a summary of a 150 page Masters dissertation on the subject and is useful in understanding the context and the reasoning for more recent developments in Chinese privacy law which are very understandably not actually tackled in the selected publication which is based on research dating back to 2004-05. Since then, although China has not yet acquired an omnibus Data Protection statute, its law has been amended in a number of ways which have considerably widened privacy protection. In 2009 the PRC Criminal Code was amended to make certain acts relating to data collection and privacy a criminal offence: In addition to the Criminal Law which establishes criminal liabilities, the PRC Tort Liability Law (Tort Law, which is effective as of 1 July 2010) establishes data protection violations as a tort claim which can give rise to private civil actions. The Tort Law recognises that the right to privacy is a unique type of private right and any party whose right to privacy is infringed can claim against the tortfeasor for actual losses, profits arising from the breach, as well as damages for emotional distress. (Wintone/a/.,2012)

Most recently, in 2013 China's National People's Congress (NPC) Standing Committee (its second-highest legislative body) has amended the PRC's Law on the Protection of Consumer Rights and Interests to include provisions on protection of personal information, along with other amendments. Leading scholars like Greenleaf and Tian (2013) have claimed that: 'For the first time, the cumulative effect of these laws is that China is approaching having a data privacy law for its whole private sector.' Having examined the position in China, the final essay selected for this volume is an overview of what is happening in the rest of the world. The previous essays have, with a few exceptions (for example, Stanner, Altrnan) mostly focused on perceptions of privacy in the developed world. The essay, 'Privacy and Developing Countries' (Chapter 20), by Gus Hosein is actually an attempt at looking at the status of privacy 'for the other five billion' (p. 472). It is a report commissioned by the Office of the Privacy Commissioner of Canada based on what Hosein claims to be three years of in-depth research. This essay is particularly interesting to those readers interested in understanding links and possible causality between development, human rights and privacy. Hosein is especially concerned with demonstrating how: 'Even as surveillance rises on the policy agendas in developing countries, there are some significant obstacles to raising the profile of privacy and human rights' (p. 473). He is particularly insightful as to how: Neither the lack of debate nor their weaker economic status as 'developing countries' affects the rate of adoption of surveillance policies. In fact,... many developing countries are implementing vastly more sophisticated surveillance systems than exist in the developed world. The rate of adoption of these policies and technologies is increasing dramatically, (p 472)

The essay has been included largely because it provides an overview as well as some interesting snippets of information on what is going on in various countries but some readers

The Individual and Privacy

xxxvii

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

may observe that, while informative and analytical in a number of instances, it is difficult to get away from the activist's tone which surfaces on a number of occasions in this chapter: Even with all the good examples and all the leadership, surveillance systems will continue to expand in developing countries so long as international organisations and governments fund their deployment. We must call on these donors, foundations, and agencies to consider privacy and human rights in their development strategies. We must also monitor the international trade in surveillance technologies. Failing to do so may result in a new form of inequality between the developing countries with extensive surveillance, and the developed world without. More worrying is the most negative outcome, where these funds will ensure the continued rise of surveillance industries and services that will eventually become global, (p. 484)

The emphasis throughout Hosein's essay is on many forms of technology which can be used for surveillance in both developed and developing countries. His main point is that: 'In countries around the world, almost without regard for cultural variations or economic differences, surveillance is rising on the policy agendas. New systems are being deployed to collect information on large populations without adequate technological and policy safeguards' (p. 483). He correctly observes that: The technologies being deployed are often untested, and may give rise to secondary effects such as social exclusion or discrimination. Though legal safeguards exist in the form of constitutional safeguards, and sometimes even in the form of data protection laws, we may rely too greatly on weakened legal and judicial institutions. Too often, the legal safeguards are inadequate or poorly resourced, (p. 483)

Hosein interestingly concludes that these developments will not result in a global divide in the adoption and use of surveillance technologies. As with all types of privacy research and especially in the case of privacy in developing countries, the reader is strongly encouraged to turn to the Internet and update his or her knowledge on developments in a particular country or region. Lawyers, activists, regulators and policy-makers from developing countries are increasingly and consistently present in a number of international fora where their reports suggest that the scale of the debate about privacy inside those countries is actually increasing and every now and again a surprising modern policy or law is adopted and, reports suggest, is also occasionally - but certainly not always - implemented in an effective manner. Conclusion Like any other anthology, there may be as much criticism of what was left out of this volume as of what may have been included. China for one represents a huge place where we need to ascertain more of what people think and do about their private space. I would, for example, have liked to include the most recent essay published by a promising Chinese scholar, Bo Zhao, who has written a most interesting work about posthumous reputation and posthumous privacy (Zhao, 2014). This would be interesting to any privacy scholar who may wish to carry out a comparative analysis of the interplay between respect to ancestors' (kin etiquette) reputation and privacy, something which is commonly also found in many indigenous peoples around the world whether in Australia and New Zealand or Africa and South America. In

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

xxxviii

The Individual and Privacy

order to complete the contextualization intended to be achieved by this introduction, it is worth mentioning that, outside this volume, Zhao traces the fascinating story of how, starting with no statutory law in 1989, the Chinese courts have, under the supervision to the Supreme People's Court, gradually developed a body of law where posthumous privacy is actually protected under the name of posthumous reputation. Zhao (2014, p. 351) attributes this development 'to the fact that as Western-oriented legal concept, privacy is rather new to Chinese society and thus had been weakly protected under the rubric of defamation law for a long time before gaining independence' as a stand-alone right under Chinese law in 2010. If, for example, the West is eventually to engage China seriously about privacy, especially when trying to find common ground on the law regulating activities on the Internet, it would need to realize that nearly 20 per cent of the world's population lives in a situation where legal protection is stronger in some cases than it is in the West and weaker in others. The Chinese situation needs to be understood within its cultural context: First the Chinese custom to respect the dead still remains a rather strong factor for judges to consider in adjudication, although it has gradually lessened in past decades. Second, under many circumstances, surviving family members have substantial interests in the reputation and privacy of the dead, due to shared social status and China's hierarchical social structure. Third the reputation of many dead political figures still plays an important role in China's official history that justifies the legitimacy of the ruling regime... Finally, a fundamental reason for the strength of China's defamation protection is China's notoriously weak protection of a free speech right, despite it being recognized in the Chinese constitution. (Zhao, 2014, p. 352)

One of the paradoxes that the West would need to deal with when trying to understand and find common ground with the Chinese is that in China 'the strong protection of the dead's reputation and privacy is practically possible with a very weak free speech right' (Zhao, 2014, p. 352). Zhao (2014, p. 352) seems to think that the situation will not change and that the strong protection of posthumous reputation and privacy will remain a dominating feature of Chinese law 'until the point of a fundamental political change to democracy'. Should the latter scenario transpire it would be interesting to see whether the Chinese would retain a strong protection of posthumous reputation and privacy for normal private citizens but would start making exceptions and be prepared to 'lift the privacy veil' in the case of public figures such as politicians or celebrities. While doubtless leaving out many essays which would have been selected had space constraints been less limiting, it is to be hoped that the material which actually has been included is enough to illustrate how complex the privacy debate may be and how an interdisciplinary approach to the subject helps achieve a better understanding. One of the main reasons for having accepted the invitation to compile and edit this volume was to make a modest contribution to efforts to change the way that people think about privacy. 'Privacy may actually be an anomaly', said Vint Cerf, one of the architects of the Internet, at a Federal Trade Commission workshop on the Internet of Things. Cerf, who is currently Google's Chief Internet Evangelist, argued that privacy is a construct of the modem industrial age. In the past, his thinking goes, people lived in small self-contained villages, where pretty much everyone knew who was dating the baker's daughter and what the sheriff had for lunch. It is only when populations started migrating en masse to cities that anonymity emerged as a by-product of urbanization (Fernstein, 2013). Hopefully, a closer reading of the chapters and authors included

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xxxix

in this book would eventually help Mr Cerf, for whom I have a healthy respect in a number of areas, to understand how complex and universal privacy may be, while also allowing for regional and cultural variations. Already wary that he was at risk of sounding too shallow,16 deeper study and reflection may persuade Vint Cerf to come back and conclude that his public utterances of 2013 were based on an analysis which is as superficial as it is simplistic. When considering that non-urban peoples, even those with ancient lifestyles, continue to manifest a number of forms of privacy-related behaviour it quickly becomes apparent that privacy is not a by-product of urbanization though, as a basic human need it may actually benefit from the anonymity bestowed by larger urban areas. It is important to realize that Cerf is wrong on at least three major counts. First, he gets his facts wrong: a close inspection of humanity throughout history throws up multiple examples of privacy-related behaviour some of which are documented in many of the chapters of this volume. Second, Cerf at times appears to equate, possibly confuse, privacy with anonymity when, although the two are related they are not synonymous: anonymity is simply one dimension of privacy which in itself, as this volume demonstrates in each and every chapter, is a much more complex multifaceted matter. Third, even had he been right about the historical facts - that is, even had privacy started with urbanization - the fact that it is relatively a recent phenomenon which is anything between 300 and 3000 years old,17 does not make it worthless, anomalous or something not worth preserving. For the average reader to begin to understand how fundamentally wrong Cerf s statements are, it is enough to start by looking at the oldest continuous societies in the world and especially those of the aboriginals in Australia which have a continuous history of some 40,000 years before coming into contact with white man only just over 200 years ago (significantly less in some Australian states). Cerf and his supporters'8 point to developments in Western architecture but fail to go into sufficient depth in their analysis. Amongst other things they fail to consider the architecture of say, the aboriginals in Australia where until the twentieth century the domiciliatory space was not only composed of the hut or other form of shelter but also of all the space around it right to the limits of an encampment. As indicated by anthropologists like Stanner and more recently in a definitive manner by Paul Memmott (2007), when properly understood, the organization of space (Memmott and Chambers, 2002) 16

'1 don't want you to go away thinking I am that shallow about it', Vint Cerf as cited in Edwards

(2013). 17

Large or largeish cities - that is, made up of tens of thousands or hundreds of thousands of inhabitants such that anonymity is more easily achieved, are nothing new. The argument about Rome of 2000 years ago is not that it was big but HOW big - that is, 500,000 and not a million or four million as suggested by the census of 28 BC. Likewise, 700 years earlier Nineveh is estimated to have had about 100,000-150,000 inhabitants within its walls. Nowhere near the same scale as modern-day Tokyo, Seoul or Mexico City ... but large enough to make it far less likely to know who was dating the baker's daughter or what the sheriff had for lunch. The point about urbanization is not however the precise size of the cities but actually how much of the population lived in cities and how much lived in rural areas, a proportion which had remained more or less static markedly in favour of rural areas for millennia but which has climbed in favour of urban areas over rural ones exponentially over the past 200 years. 18 Fernstein (2013). Fernstein's analysis ignores the whole body of evidence presented in this volume and in dozens of others and instead cites, out of context, certain practices in times gone by, whether Roman or medieval, which do not equate to modern privacy-conscious behaviour.

xl

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

in the traditional aboriginal architecture of Australia is actually a confirmation of the existence of private space and/or privacy-related behaviour in a non-urban environment. Indeed, apart from dozens of examples in other forms of rural and urban architecture around the world, even if Fernstein and Cerf were to visit some very modern examples of Australian architecture they would appreciate that in some places this tradition continues: The Tjulyuru Ngaanyatjarri Centre at Warburton was specifically designed to support and encourage existing Aboriginal living practices, as well as kin-related Aboriginal etiquette and respect for the layering of Aboriginal knowledge systems. The former manifests in a flexibility of space which avoids a linear progression through the architecture enabling easy entry and exit, and the latter in preventing unwanted intrusion into particular parts of the centre through the layering of spaces from public to private, or secular to secret. (Fantin, 2003) Moving on from Stanner to Altman to Capurro and other chapters in this book, it should be clear to the average reader and perhaps especially to extremely intelligent readers like Cerf, that privacy is no anomaly. Even had it been a recent development - which evidently it is not - it would have also been no anomaly. For example, much of human rights law worldwide is a recent development, largely established after the end of the Second World War but that does not make it any less of a good thing, let alone an anomaly. Just because something is relatively recent does not mean that it is not worth preserving and this applies equally to architecture and protection from discrimination on grounds of race, creed or sex. Just because the abolition of slavery is only as recent as the nineteenth century or because racial segregation was still upheld in the USA until the 1960s or that apartheid was still in full force until 1994 does not mean that the progress that has been achieved in their elimination is an anomaly. It is suggested that it is not privacy that is an anomaly. Neither is it the failure to understand and appreciate what privacy is all about that is possibly anomalous. Cerf s November 2013 statement is ample proof of that if any was needed. People have failed to define let alone properly understand privacy many a time over the past century and more. If 'anomaly' is to be understood in accordance with its standard dictionary meaning - that is, 'something that deviates from what is standard, normal, or expected' - then it is hard to place privacy in that category. As the various chapters in this book demonstrate, it is perfectly normal for people to exhibit privacy-related behaviour and it is therefore perfectly normal for us to expect them to do so. But expecting is one thing and investigating in as unbiased a way as possible is another. The opening quotation from Leith (Chapter 10) remains a useful warning: 'The approach which presumes that personal control of information is the ultimate goal to be achieved is ideological not academic' (p. 202). The approach followed in compiling this volume did not presume that personal control of information is the ultimate goal to be achieved. Indeed the author is agnostic about any such goal. The ultimate goal was and remains to find out what privacy is all about, whether it really is 'different things to different men' (Young, 1978, p. 4) while also considering the possibility that privacy means different things to different women too and that gender and cultural differences as well as temporal space may somehow affect what privacy may be for a given individual in a specific community at any single point in time. An overall understanding of the perspectives presented in this volume suggests that for a number of researchers privacy is neither an ideology nor a dogma, though unfortunately some people writing about the subject today or in the past do appear to have an ideological or dogmatic approach both for and against privacy. In a nutshell privacy remains a phenomenon

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

xli

to be investigated and the investigation is expected to continue long after the present volume is published. Another very good reason to continue to investigate privacy is that a closer examination of the essays selected for this volume suggests that privacy is not static and immutable. It may contain a number of long-standing characteristics which are to be found in many individuals in most societies, a few of them possibly - but not necessarily - since the dawn of time and it may certainly encompass one or more core values which are common to most if not all cultures, but seemingly it does not stand still. It apparently adapts itself to changing circumstances, urban or rural, historical or hi-tech (Tene and Polonetsky, 2013). The quarter-century since the advent of the Web in 1990 has seen over a billion people 'move on-line' and thus add a virtual or cyberspace identity to their 'meat-space' presence. If, as recent research suggests,19 more of these netizens are seeking increased privacy in an on-line environment this is not because the technology systematically reminds them to take more privacy precautions. Cerf makes an interesting point about change and dynamics: 'He said that the manner in which we interact with others on the 'net was problematic when it comes to our desire to keep personal information private' (Edwards, 2013). '"Our social behavior is quite damaging to privacy. Technology has outraced our social intellect," Cerf said'.20 Well, perhaps in some instances this may be so but how long will it be before our social intellect reacts sufficiently speedily and comprehensively to bring to cyberspace a privacy-related modus vivendi that mirrors the status quo in the non-on-line world? These changing privacy dynamics in human behaviour need to be better understood since, as demonstrated by the different chapters in this book, privacy may be constantly evolving in different social contexts and new technological situations. This constant state of change and refinement suggests that there exists a need for continuous ongoing empirical research on the precise status of privacy, including citizens' attitudes and expectations regarding privacy in many societies around the world. As Leith points out, this research must investigate in-depth, empirically and free from ideological blinkers. It must seek to understand how people think and feel about privacy at different moments in their life, in different times in history. For their thinking, their laws, their work-arounds, their procedural and technical safeguards, all of this and more may be reinforced or changed thanks to or in spite of all the technological development that we live through. In this sense, this book is only a beginning, a pointer to some of the things that we should be watching out for and thinking about. For we may find out that in the privacy arena too there is both organic and inorganic growth. Systematic, ongoing research about privacy would provide the evidence-base required to decide whether privacy has been quietly abandoned by humanity or whether cherished privacy values are indeed menaced by, for example, organic growth of technologies such as the Internet and surveillance. The results of this research would then hopefully be used in an informed discussion held at regular intervals on whether we need to intervene, as a matter of personal, social and/or parliamentary policy, in the way that technologies are designed and deployed. 19

For more details about some of this research see https://www.consent.law.muni.cz/, http://www.smartsurveillance.eu/, http://respectproject.eu/, http://www.mappingtheinternet.eu/ and http://www.evidenceproject.eu/. 20 At: http://www.businessinsider.com/google-vinton-cerf-declares-an-end-to-privacy-2013H#ixzz35NkHA8t9.

xlii

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

References Adler, Michael (2007), 'Recognising the Problem: Socio-Legal Research Training in the UK', The University of Edinburgh (at: http://www.ucl.ac.uk/laws/socio-legal/empirical/docs/Adler_REPORT. pdf). Altman, Irwin (1975), The Environment and Social Behavior: Privacy, Personal Space, Territory, Crowding, Monterey, CA: Brooks/Cole. Altman, Irwin and Taylor, Dalmas A. (1973), Social Penetration: The Development of Interpersonal Relationships, New York: Holt, Rinehart and Winston. Banakar, Reza (2009), 'Law through Sociology's Looking Glass: Conflict and Competition in Sociological Studies of Law', in Ann Denis and Devorah Kalekin-Fishman (eds), The New ISA Handbook in Contemporary International Sociology: Conflict, Competition, and Cooperation, London: Sage (at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=l 327025). Campbell, C.M. and Wiles, P. (1976), 'Study of Law in Society in Britain', Law and Society Review, 10, pp. 547-78. Cannataci, Joseph A. (2014), 'Mulling over Methodologies: Evolving the Way Privacy Scholarship Goes about Its Business', in Joseph A. Cannataci and J.P. Mifsud Bonnici (eds), Online Privacy: Are We Consenting to Our Future? Explorations in Current Privacy Issues, Law, Science and Technology Series, Rome: Edizioni Scientifiche Ttaliane. Cohen, Julie (2012), Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, New Haven, CT: Yale University Press. Edwards, J. (2013, 21 November), 'Google's Top Futurist Says Your "Privacy May Be an Anomaly"' (at: http://www.businessinsider.com/google-vinton-cerf-declares-an-end-to-privacy-201311#ixzz35X6NpSPj). Fantin, Shaneen (2003, 1 September), 'Aboriginal Identities in Architecture' (at: http://architectureau. com/articles/aboriginal-identities-in-architecture/). Fernstein, Gregory (2013, 20 November), 'Google's Cerf Says "Privacy May Be an Anomaly". Historically, He's Right' (at: http://techcrunch.com/2013/ll/20/googles-cerf-says-privacy-may-bean-anomaly-historically-hes-right/?ncid=fb). Greenleaf, G. and Tian, G. (2013), 'Data Protection Widened by China's Consumer Law Changes', Privacy Laws & Business International Report, 126, pp. 27-28 (at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2404866). Gregor, T.A. (1974), 'Publicity, Privacy, and Mehinacu Marriage', Ethnology, 13, pp. 333-49. Hall, Edward T. (1963), 'A System for the Notation of Proxemic Behavior', American Anthropologist, 65, pp. 1003-26. Hall, Edward T.( 1964), 'Silent Assumptions in Social Communication', in: Disorders of Communication. Hall, Edward. T. (1966), The Hidden Dimension, New York: Doubleday. Hall, Edward T. (1974), Handbook for Proxemic Research, Washington: USA Society for the Anthropology of Visual Communication. Leith, Philip (1986), 'Fundamental Errors in Legal Logic Programming', The Computer Journal, 29, pp. 545-52. Leith, Philip (1990), Formalism inAI and Computer Science, Chichester: Ellis Horwood. Manes, S. (2000), 'Private Lives? Not Ours!', PC World, 18, p. 312. Memmott, Paul (2007), Gunyah, Goondie & Wurley: The Aboriginal Architecture of Australia, Queensland: University of Queensland Press. Memmott, Paul and Chambers, Catherine (2002), 'Spatial Behaviour and Spatial Planning at Galiwin'ku: New Insights into Aboriginal Housing', Architectural Review Australia, Residential 2, pp. 88-97. Moore, Barrington, Jr (1984), Privacy: Studies in Social and Cultural History, Armonk: New York: M.E. Sharpe.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Parti The Time Dimension: Perspectives from History and Anthropology through Philosophy to Religion and Technology Law

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

[1]

PRIVACY IN EIGHTEENTH-CENTURY ALEPPO: THE LIMITS OF CULTURAL IDEALS Abraham Marcus

On the night of May 26, 1762, several residents of the Syrian city of Aleppo entered a house in their neighborhood uninvited. The owners were not in, but several unveiled women sitting in male company were there to greet them. If the scene proved less compromising than the intruders expected, it did confirm their suspicion that the house was a meeting place for illicit relations. The following day they turned in the owners, a man and his mother, to the court and secured the qadi's consent to have them expelled from the neighborhood. Some six years earlier, a local woman brought before the judge a concern of a different sort. Her four-year-old daughter had accidentally fallen off a stairwell, landed on one of her wooden clogs, and lost her virginity. The anxious mother wanted an official document certifying the facts of the incident, and had a group of neighbors ready on hand to confirm the story from hearsay. A week before this incident another local man came to the court to notarize the purchase of a dwelling. What he acquired was a segment of a courtyard house that gave him two rooms to himself and his family: the yard, main entranceway, and indoor amenities he had to share with the other occupants. These events were not related, nor were they of memorable importance in Aleppo's history. Were it not for the recording of daily business by the city's Islamic law (sharica) court they would surely have gone unchronicled.1 Yet, judging from the multitude of similar cases scattered through the court's books, occurrences of this sort were hardly unusual in the eighteenth century. What renders them noteworthy are the questions they raise about the meaning of privacy in this society. How important could domestic and personal privacy have been if private citizens could invade their neighbors' homes with impunity, if numerous people shared dwellings with other households, if parents deliberately involved the public in the delicate details of their daughters' virginity, and if women flouted the taboos by baring themselves and entering into compromising contact with men? These questions have particular pertinence in the case of a Middle Eastern community bound by the norms of Islamic law and culture. Muslim societies enjoy a reputation for attitudes and conduct exceptionally protective of privacy. The strict dress code, the high walls and the enclosed courtyards of houses, the abundance of cul-de-sacs and neighborhood gates are often taken as expressions

4

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

166

Abraham Marcus

of this sensitivity. So, too, are the elaborate restrictions on relations between the sexes, which set up, particularly around women, private spheres immune from public observation and unlicensed contact. If Aleppo was one such privacyconscious society how do we account for the incompatible evidence in its judicial records? The contradiction is more apparent than real; we are looking at different aspects of a phenomenon that has not really been studied carefully in any pre-modern Middle Eastern community. Privacy describes the state of limited access to the person, attitudes, and experiences of an individual; it is expressed in a variety of possible restrictions, affecting access to personal information as well as observation, intrusion, and physical exposure. The practices and norms of Aleppo's townspeople in these different areas suggest that flat statements about their preoccupation with privacy need correction in two basic respects. First, there were forms of privacy, primarily those involving personal information, which people simply did not value. Residents pried on their neighbors and expelled them from their midst as part of a legally sanctioned system of social control, and people readily made public all sorts of personal and familial information. The familiar Islamic norms touching directly on the protection of body, home, and women formed only one component in their conception of privacy. Alongside them was a whole range of attitudes and ideals linked with that world's notions of morality and decency, social distance and intimacy, personal autonomy and individualism, authority and community. Not all of them were supportive of privacy. Second, the prized forms of privacy were not necessarily attained or protected in practice. Poverty, for one, forced upon many individuals compromising domestic conditions; offensive violations widened further the gap between ideals and realities. How much privacy people actually enjoyed was not determined solely by their aspirations and norms. A whole set of variable factors— domestic living arrangements, neighborhood and group life, the level of government intrusiveness, population densities, communications technology, social structure, the distribution of wealth—affected the actual access to privacy and its distribution in the population. The distinction between the cultural conceptions of privacy and its actual manifestations in social situations is an important one to bear in mind. It points to two conceptual levels at which the subject may be approached, each calling for a particular mode of inquiry guided by distinct concerns. From a historical perspective, however, both aspects form part of the same reality, and tend to illuminate that reality best when seen in their interplay rather than separately. The relationship between them reveals not only the discrepancies between ideals and actual conditions but also the forces which shaped realities and attitudes. Such is the approach which guides this study of privacy in eighteenth-century Aleppo. Its first two parts describe what was desirable and accessible in the areas of physical privacy and privacy of information. On the basis of evidence from the middle decades of the century they piece together the practices and attitudes of the townspeople in a variety of social contexts. The final part presents an interpretative analysis of the multitude of observed experiences. It attempts to make sense of the norms, realities, and dynamics of privacy by fitting the story into the larger processes of Aleppo's society.

_5_

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in 18th-Century Aleppo

167

As a historical theme privacy poses some particular difficulties. The phenomenon itself is of unusual conceptual complexity, as the growing literature on the subject illustrates.2 Its pursuit in the vanished world of eighteenth-century Aleppo encounters problems of inadequate evidence, impenetrable intimate worlds of thought and behavior, questionable assumptions about Islam and Middle Eastern society, and intricate causal relationships between culture and social conditions. The larger context must be invoked constantly to render observations more intelligible; privacy is the story not of one idea, institution, or social group but of a phenomenon inseparable from the cultural vision and social processes of the community at large. Because of the broader linkages of privacy, however, the questions of methodology and interpretation raised in the study acquire some wider historical relevance. They point to useful avenues for the explanation of behavior and change in Middle Eastern society. In this respect Aleppo makes a good case for study. A major metropolis of some 120,000 people, the administrative capital of an Ottoman province, a renowned center of trade and industry, and a seat of culture, learning, and luxury, it was of course hardly representative of all regional communities. But precisely because of the elaborate and dynamic character of its society the city can conveniently display the effects of many factors on local conditions. Its highly differentiated population, which included a large body of non-Muslims (some 20,000 Christians and 4,000 Jews), lived in a world where sharp contrasts of lifestyle and personal circumstances were common, and the vagaries of nature, the marketplace, and human pursuits governed daily existence. PHYSICAL PRIVACY

During the eighteenth century Aleppo experienced much upheaval. Violent factional strife, bitter religious disputes, economic crises, and a succession of frightful famines and plagues left few people unaffected. Privacy, however, was not among the burning public issues of the day. For all its turmoil the period produced no new values and expectations in this area. The people who appeared in court to assert violated rights and the moralists who urged the public to observe hallowed standards essentially reaffirmed a set of traditional attitudes and norms. Interestingly enough, they never invoked privacy as their guiding value. Their Arabic language had no specific term to denote the concept, nor did their legal system recognize an overarching ideal of privacy with a validity in its own right. Their norms were actually derivatives of more specific cultural preferences; they argued and enforced them in the name of modesty, sexual morality, civility, respect, honor, and other prized values. When speaking of privacy in this society we are therefore describing a cluster of attitudes and norms which the local mind did not unite in a single conceptual construct of the sort familiar to the modern observer. As expressions of diverse ideals these norms tended to attract varying levels of public concern. Indeed, a basic asymmetry underlies them, one which mirrors the moral priorities of the culture. Their overwhelming thrust was the protection of physical privacy; the privacy of personal information, at the center of modern concern and legislation, ranked as a matter of secondary interest.

The Individual and Privacy

6

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

168

Abraham Marcus

The particular weight attached to questions of bodily and domestic privacy derived primarily from the fact that they were inseparably linked with the community's fundamental position on modesty and sexual morality. And that position was itself a central ingredient in a well-defined vision of what the moral, orderly, and God-fearing society ought to be. It was in this area, not in matters touching on privacy of information, that Islamic law and doctrine defined explicit norms and brought their full weight to bear on their enforcement. This legalreligious backing was aimed not simply at protecting the rights and immunities of individuals. In contrast with the obsessive harping on individualism, freedom, and personal autonomy in modern thought, the stress here was very much on the fulfillment of social obligations and mandatory practices necessary to guarantee the moral fabric of society as a whole. In addition to being strict, the standards involved heavy reliance on external physical mechanisms of protection and particularly rigid restrictions on women. Inherited from a long line of past generations, they were quite familiar to the townspeople and encountered no organized challenge or public protest. Nevertheless they had to be upheld and enforced continually. A measure of laxity and violation was normal, inviting intervention by the religious and civil authorities. This process served ultimately to reaffirm the values. The norms of modesty required that people maintain their body and limbs covered all year round. Even in the public bath houses, which almost the entire population visited regularly, one was expected to remain robed while in the company of others. Muslim women were even required to bathe separately from Christian and Jewish women. A qadi who affirmed these arrangements in 1762 invoked the opinions of distinguished jurists to prove that for a Muslim woman to expose herself before a non-Muslim female was as sinful as baring herself before a man.3 Islamic law prohibited the forcible exposure of the body of others or its violation by assault or sexual molestation. Sexual and excretory acts were also regarded as strictly private. Most of the houses in the city were provided with indoor privies, and the public latrines consisted of individual booths with doors. In practice, the level of public conformity to the rules never satisfied the moralists. They were particularly exercised by behavior in the baths, where an attitude too relaxed for their liking prevailed. In 1768 the judge reprimanded the operators of the city's bath houses for providing their customers with towels and robes too small to give proper bodily cover. The issue had come up just six years earlier, when the operators pledged solemnly to supply larger robes. Arrangements to ensure separate use of the baths by women of different religious affiliation also had to be reinforced periodically.4 The strict rules clearly interfered with good business and public convenience. Far more sensitive and complicated was the enforcement of the community's sexual taboos. Relations outside marriage and concubinage were unlawful. Violations, especially by women, were so damaging to personal and familial honor that society set up a whole range of physical and social barriers to prevent transgressions. Premised on the assumption that if anything can go wrong it will, these arrangements relied on strict segregation of the sexes and restrictions on

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in 18th-Century Aleppo

7

169

the public exposure of women. In this fashion spheres of privacy were defined to regulate contact and distance. Women were required to dress modestly and to veil themselves in public as ways of minimizing sexual temptations. Early restrictions on the association of boys and girls, arranged matches, the prohibition of premarital courtship, and marriage in adolescence were all part of the prevailing conception of sexual morality. In familial celebrations and social gatherings men and women were expected to assemble separately. Even indoors, a private section of a Muslim family's dwelling was to serve ideally as the harem, where the women would be effectively sheltered from visiting outsiders. Although commonly identified with Islam, the rules of sexual segregation were to a large extent part of the moral message of other faiths as well. The clergy of all communities harped endlessly on this theme. The Jews forbade their men to pay visits to the homes of their fiancees, and their women from promenading in the gardens outside the city or accompanying their husbands for walks in public. The community was bitterly divided in the middle years of the century when Jewish families more recently arrived from Italy defied these rabbinical regulations.5 The Christian clergy regularly issued orders prohibiting overnight visits outside the family circle and the participation of women in customary ceremonies celebrated outside the city, including funerals. They insisted that proper segregation of the sexes be maintained at weddings, and that mothers cease taking their boys along with them to the baths.6 Governors concerned about moral standards were also occasionally prompted to prohibit the picnics of women in the outskirts.7 In 1754 the qadi went so far as to order a successful shop closed because the owners allowed their male and female customers to mix freely.8 The constant campaign against moral laxity suggests, of course, that violations were not uncommon. The annals of the court record illicit affairs, illegitimate pregnancies, seductions, the discovery of foundlings, and the confessions of women of loose morals.9 On the whole, however, the opportunities for deviation were restricted and the personal risks heavy. So effective was the segregation that males and females formed two distinct social worlds. Friendships were by and large confined to members of one's own sex. The preoccupation with the protection of women from improper exposure reinforced the ideal of domestic privacy. The townspeople regarded the indoor activities of the household as private and the home as a protected sanctuary, immune from unlicensed observation and entry. Their dwellings reflected something of this concern: regardless of size, they were laid out around a central courtyard, with all rooms and ground-level windows opening inwards; tall blank exterior walls barred all observation from the outside. Islamic law provided additional protections from offensive violations by outlawing trespass and burglary, and more directly by forbidding uninvited observation by outsiders. Its building codes contained explicit regulations for the protection of houses from unwelcome exposure. Violations were particularly offensive when they compromised the females of the household. A group of residents sued a local developer for dumping dirt against the exterior walls of their houses, on the grounds that their courtyards

The Individual and Privacy

8

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

170

Abraham Marcus

and women were thereby exposed to the view of outsiders.10 During a violent uprising in 1769, "nothing raised such universal horror, as a few instances of the rebels breaking forcibly in the Harems, in order to search for the master of the house, who had declined joining them."" Even inquiries about the female members of a man's household were considered improper intrusions from which all, including the authorities, were expected to abstain. While a few residents appeared in court annually to complain about some violation of their domestic privacy, their grievances were too restricted in scale and frequency to indicate anything but a normal level of intrusion. The real social threat to the cherished ideals of familial privacy came not from offensive violation but from poverty. For all the colossal wealth and luxurious lifestyle of the privileged few, Aleppo remained even at the best of times a city of yawning social contrasts. At the bottom of the scale were masses of poor families living at bare subsistence levels. With the differences in wealth came corresponding variations in housing conditions and household composition which greatly affected the access to privacy. With the aid of data in the city's court records it is possible to reconstruct something of that diversity and to shed some light on the unchronicled realities of the disadvantaged. The residences of the wealthy display the ultimate in local standards of domestic living and privacy arrangements. Their handsome compounds, some over a thousand square meters in area, included numerous rooms organized around richly paved courtyards adorned with trees and water fountains. Living and reception areas, bedrooms, kitchens, privies, baths, storage rooms, stables, cellars, and separate harems rendered these homes models of the highest material comforts available at the time. Their occupants enjoyed several conditions favorable to indoor privacy: spacious residences which reduced crowding and permitted adequate physical protections for females and for private activities; single-family occupancy of their houses; and exclusive access to indoor facilities. Each one of these features became increasingly inaccessible as one moved down the socioeconomic scale. The bulk of the city's houses in the eighteenth century were elementary dwellings of one to three rooms, a small inner courtyard, a kitchen, and perhaps a cellar. In the absence of cadastral data a breakdown of residential sales by size of dwelling provides a rough quantitative indicator of the predominance of these small homes (Table I).12 They were distributed in abundance in all parts of the city, with particularly heavy concentration in the solidly poor districts. In comparison, the larger and more luxurious houses were far fewer in number. And they were several times more expensive, which placed them well beyond the means of considerable segments of the population (Table 2).13 Average prices actually conceal the finer gradations of wealth and misery. A large mansion sold for as much as 11,500 piastres (ghurush). At the other extreme were the many wretched dwellings for which people paid as little as 8 piastres—a mean room or two often without a separate kitchen or any other amenity.14 That there were candidates for such accommodations becomes clear when we consider that in the middle years of the eighteenth century many laborers and

The Individual and Privacy

9

Privacy in ISth-Century Aleppo

171

TABLE 1 Types of houses traded in Aleppo in three selected years, 1750-1759 1750-51

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Type

No.

1755-56

%

No.

%

1758-59

No.

All 3 Years

%

Small Medium Large

847 398 39

66 31 3

627 311

63.8 31.7

4.5

690 66.2 321 30.8 31 3.0

Total

1284

100

982

100.0

1042 100.0

44

No. 2164 1030

114

% 65.4 31.1

3.5

3308 100.0

Source: Aleppo Court Records.

TABLE 2 Types and values of houses traded in Aleppo in 1750-1751 (money amounts in piastres) Tvne

Houses

Values

Average price

No.

%

Amount

Small Medium Large

847 398 39

66 31

3

107,417.8 184,753.0 69,146.2

29.8 51.1 19.1

Total

1284

100

361,317.0

100.0

%

of house

126.8 464.2 1773.0

Source: Aleppo Court Records.

artisans earned less than 100 piastres a year, some as little as 24 piastres.15 Indeed, many poor families were reduced to sharing small dwellings and their indoor facilities with other households. The considerable extent of multiple occupancy in the city is revealed in numerous transactions and suits recorded by the court. It was a condition particularly prevalent among the Jewish poor, who preferred to stay within their community's traditional district at any cost. The common use of draw wells, courtyards, entranceways, and other facilities that accompanied multiple occupancy entailed not only routine exposure to neighbors but also occasional tensions and quarrels.16 Numerous immigrants, particularly men and women of tribal origin, lived in large apartment complexes organized around common courtyards. They inhabited mean rooms and shared outdoor facilities with a large group of neighbors.17 Even these compromising conditions paled in comparison with the realities of people still more disadvantaged: the beggars and chronically destitute who found shelter in the courtyards of mosques and other public places, and the down-and-out, who swelled the ranks of street dwellers in times of famine and widespread unemployment." Access to the cherished ideals of domestic privacy clearly depended on level of wealth. The Middle Eastern courtyard house, celebrated for its protective features, did not guarantee them automatically. If many poor families lived in conditions of exposure to neighbors it was from necessity rather than indifference; their

10

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

172

Abraham Marcus

aspirations, as far as can be ascertained, were essentially those of their better-off neighbors. Housing conditions naturally also affected access to personal privacy within the family itself. Here, however, the norms are not as readily evident. Contemporaries left us no comments on their desires or actual domestic experiences. Nor did they keep figures on the size of the households which inhabited the city's dwellings. But circumstantial evidence, particularly on household composition and familial relations, points toward an important fact: in the scale of cultural priorities current in Aleppo the privacy of individuals within the family was not a primary ideal. It was routinely sacrificed for more highly prized values. There was at the time no standard family type characteristic of all ranks of society. In the upper classes, conspicuously large extended households, augmented by harems and domestics, were common. Musa Agha al-Amiri, a fabulously rich merchant, reportedly had four wives, forty concubines, and a large body of slaves and attendants residing in his home.19 While the majority of residents possessed neither the space nor the means to accommodate households of this order, theirs were not small, strictly nuclear units. One rough indicator comes from the many listings of heirs in the court registers, which tell us the number of children who survived deceased parents. The variations between families were considerable, ranging from one to thirteen, but by far the most numerous were families with five and six children. The records also bring out the very mixed composition of many local households. One repeatedly encounters fluid groups which could include, depending on circumstances and the life cycle of the family, not only parents, unmarried children, and perhaps domestics, but also married children, old parents, orphaned nephews and grandchildren, divorced and widowed siblings, and other relatives. Individuals in all classes experienced something of this domestic promiscuity at some stages of their lives. Regardless of how this household type is classified, it was certainly not an aberration. Mirrored in it are the priorities and dynamics of that world. The processes which shaped it illustrate the adaptation of the family to demands more pressing and morally binding than the indoor privacy of individual members. Newlyweds routinely moved in with the husband's family, or less commonly, with the wife's. The normal practice of marriage at early adolescence made initial dependence on parents inevitable. Boys who married (and even divorced) at ages 14 and IS were not in a position to set up separate households.20 The absorption of married children into the household actually had social appeal regardless of need: it mirrored the material comfort of the parents and their ability to maintain that proximity to close kin so highly cherished by the culture. The capacity of houses to absorb new couples with adequate provisions for privacy was naturally limited. Even in the large residences of the affluent, married children had to move out once their families grew too large to be comfortably accommodated.21 In the course of its life cycle the family could also absorb, for longer or shorter periods of time, a host of other relatives. In a society without an adequate system of social welfare the family acted as shelter, orphanage, old-age home, and welfare agency for needy kin. And the needy were abundant. Periodic epidemics, famines, and economic slumps in the course of the century left behind them long

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in ISth-Century Aleppo

11 173

trails of impoverished and broken households. Divorce and old age swelled further the ranks of the dependent. Thus young widows and divorcees, occasionally left in dire straits, moved in with their parents or with the family of a married brother. For reasons connected with the laws of custody and with the poverty of some parents, minor children from broken homes were often brought up by grandparents, uncles, brothers, cousins, and even unrelated families.22 In the better-off families live-in servants were a common part of the domestic scene. No house of any means could do without this mark of comfort and status. Candidates for household service were hardly lacking: immigrants and local poor were ready to enter domestic employment in return for their keep and a small sum of money. Among the resident maids were young girls whose parents placed them in the service of others.23 The effects of domestic promiscuity and crowding on privacy remain open to speculation. Was there adequate protection for sexual and other activities considered private? How much privacy did children expect and enjoy in the course of their upbringing? And how did people obtain physical solitude when it was unavailable indoors? Did they find it outdoors, or in the meditation, retreat, and other forms of withdrawal made available by religious practice, or in psychological evasion and escape?24 While evidence on the actual effects of the indoor living arrangements is unclear, the very existence of these arrangements says something important about the cultural choices of the townspeople: they gave the fulfillment of certain familial obligations a higher priority than aspects of personal privacy. Here was a case not of offensive violation but of an acceptable, culturally sanctioned sacrifice of privacy. The main challenge facing families was to provide shelter and support, not private space. What unpleasant consequences accompanied this absorptive role were mitigated partly by the close-knit familial ties of the period. Co-residence was but one aspect of an intimacy which took many forms. Relatives often belonged within one's circle of close and trusted friends; many indeed favored them as desirable marriage partners. From obligation as well as compassion, numerous people provided regular welfare payments for the support of needy kin. These ties of dependence had a legal basis in rules of familial obligation spelled out in Islamic law and enforced routinely by the court. Business partnerships, credit transactions, the joint ownership of property, and other economic dealings among relatives were commonplace and reinforced social ties.25 Efficient use of indoor space may have eased some of the pressures, but partly at the expense of privacy. Rooms served diverse functions interchangeably. The absence of heavy furniture made flexible arrangements possible; during the day even the mattresses which served as bedding were stacked away. In the summer nights people spread their beds on the rooftops and in the courtyards to escape the indoor heat and congestion. Some protection for private activities was provided by a characteristic feature of the local houses: the lack of direct communication between rooms. Movement from one part of the house to another required passage through the courtyard. The rooms could thus serve as separate apartments to accommodate married couples or different families. This feature paralleled another which developed during this very same period in England,

12

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

174

Abraham Marcus

France, and New England as a result of an increased preoccupation with domestic privacy: the hallway, which replaced the inner communication between adjacent rooms.26 The trade-offs at the expense of privacy which can be observed in the domestic sphere were part of a larger pattern. In various social contexts other values often took precedence. In the less obscure world outside the home the sacrifice of privacy appeared in other forms, accompanied here by more clearly discernible social costs. PRIVACY OF INFORMATION

"No one knows you better than God and your neighbor."27 The intense familiarity of neighborhood life acknowledged in this local saying is one of the surest leads into the realities of restricted privacy. Vis-a-vis the community at large the residents of a metropolis of Aleppo's order obviously enjoyed a great measure of anonymity. Unlike their neighbors in the small towns and villages of the countryside, they could hardly claim to know every family around. They were accustomed to the occasional sight of unfamiliar faces as immigrants and townspeople from other neighborhoods settled in their midst. But virtually everyone belonged to some local group or other in which familiarity was taken for granted. In neighborhoods, religious minorities, migrant communities, and other social groups people experienced repetitive contacts with fellow members in a milieu in which opportunities for observation, prying, and intrusion were legion. Between the poles of anonymity and intimacy were social relationships of all sorts. To distill from them something of the norms and realities of privacy it is helpful to watch that key variable underlying interpersonal ties: access to information about others. Information was a valuable resource which people of all ranks sought actively, not from idle curiosity alone but because it was useful to them. Government officials, group leaders, creditors, business partners, parents of marriageable children, neighbors, and others required information for managing their affairs and manipulating others. Precisely because it could be used to their disadvantage people tried to conceal personal information, particularly of the discreditable sort. Not surprisingly, information became an effective instrument of social control and its pursuit the source of intrusion and prying. The legal protections for privacy of information were almost nonexistent. Islamic law contained few explicit safeguards against surveillance, unwelcome publicity, unauthorized acquisition of private information, or the disclosure of private information given in confidence. With odd exceptions these forms of involuntary exposure did not appear as subjects of litigation in the courts. What the sharica was singularly strict in condemning as defamatory was the false accusation of unlawful intercourse (qadhf)—another instance of priorities defined by the conceptions of sexual morality. The overall paucity of legal guarantees for privacy of information is explained in part by the absence of those threats which have made modern protective legislation necessary. In the technological conditions of the period problems of

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in ISth-Century Aleppo

13 175

information control lacked their modern complexity. Without surveillance devices, mass media, printing, photography, and electronic recording and broadcasting the opportunities for mischief were limited. Government, too, was simple and unintrusive by modern standards. It had neither the inclination nor the apparatus to encroach seriously on the life of the individual. The maintenance of order and the collection of taxes absorbed it above all else. For services in the areas of education, worship, health, and welfare the townspeople relied on nongovernmental bodies and institutions, primarily the family, neighborhood, and religious community. These intermediary structures shielded them from excessive direct contact with government. Given their limited concern the authorities required little information about individuals. Police flies, income-tax records, educational and medical records, immigration records, systematic registration of births and deaths, population censuses—all these were first introduced with the process of Ottoman government modernization in the nineteenth century. Unaccustomed to such probings, people reacted to the increased official demands with suspicion and evasion.2' It is interesting that even in the frenzy of reform the authorities continued to defer to public moral sensitivities. Only in the 1880s did they extend census taking to include females, and even then allowed males to submit information on behalf of female relatives who chose not to expose themselves.29 The residents could also rely on some unwritten rules of behavior to protect them from unwelcome intrusions by others. These defined how much familiarity people were to show and expect in different types of interpersonal relations. Among friends, openness and intimacy were the norm. People shared their meals, their happy occasions, and their hours of leisure with close companions, opening their homes to them. Indeed, it was common practice, despite the misgivings of the clergy, to invite friends over to one's house for extended visits of several days and nights.30 Since the circle of friends revolved around members of the same sex, the degree of intimacy was naturally high. But such close friendships were fashioned within certain boundaries set by the city's social structure. In their highly differentiated community, Aleppo's townspeople encountered numerous barriers to intimate interaction with others. There was social distance between Muslims and non-Muslims, rich and poor, established urbanites and rural migrants. Conscious of status distinctions, the residents tended to associate most comfortably with their social equals. Instances of familiarity and personal attachment that cut across group and class lines were not unknown, especially in relations of patronage and dependence. On the whole, however, the effect of the current prejudices, deferential attitudes, and residential segregation (which, incidentally, had their cultural roots largely outside Islam) was to create social distance and, in this way, to safeguard individuals against unwelcome relations and exposure. The protective mechanisms and limited threats reveal only in part the attitudes toward privacy of information in Aleppo's society. Another side of the story opens up when we observe that the residents were hardly obsessed with keeping themselves anonymous in the first place. They lived in a milieu in which they expected intense physical proximity and social familiarity with others. Their

14

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

176

Abraham Marcus

densely built residential neighborhoods were not laid out with personal privacy as a primary end. Except for streets and intersections no space separated buildings. The houses and occasional commercial and public real estate formed massive clusters, each structure sharing party walls with the adjoining buildings. The streets, often narrow alleyways not more than four feet wide, accounted for a mere ten percent of the area of neighborhoods. The entire population was concentrated in an area of about 370 hectares (roughly one-and-a-half square miles), giving an average population density of 325 persons per hectare. This compact environment fulfilled well the need of the population for economy of urban space, limited walking radius, shade, and security. It sacrificed privacy in the process. Face-to-face encounters with neighbors were frequent and unavoidable; activities and conversations in the domestic courtyards, especially in the small houses, could be overheard by neighbors and passersby. Even the rich were part of this environment. Not only did they not escape into more private surroundings in the outskirts, but their homes were scattered in neighborhoods where common people often predominated. Neighbors were familiar with details of each other's identity, origins, occupation, economic circumstances, and familial events. Unless they were scandalous or compromising such matters were not guarded by confidentiality. The court routinely admitted the statements of residents about the financial circumstances and marital problems of their neighbors.31 People felt no particular need to conceal, and even sought to advertise, many items of information about themselves and their families. Neighbors learned quickly of local deaths, which relatives mourned with customarily loud and intense displays of grief uninhibited by public observation. Weddings and circumcisions involved joyous outdoor processions of relatives and friends. Indeed, a few days before a wedding the bride's trousseau was paraded to the groom's house in a ceremonious public display in the streets, often accompanied by musicians and entertainers. What the wife took with her to the marriage was clearly not considered a private matter; it reflected the status of the families and the social importance of the match. The defloration of the bride was likewise announced publicly soon after the marriage was consummated. The familiarity among neighbors invested neighborhood life with a certain warmth and communal feeling which the residents appreciated. Considerable numbers of them chose to reside in close proximity to others with whom they felt a strong affinity, whether based on kinship, common origin, or religious affiliation. They displayed their local attachments and loyalties in various ways, including the donation of private property for the support of services in their neighborhood and for the assistance of its poor members. Their sacrifice of privacy to the group had, however, its less pleasant sides. Personal stories and rumors circulated uncontrollably in this milieu. Many were the defenseless victims of scandalous gossip. It was only when false information severely damaging to female and family honor was at stake that people sought redress from the court. One woman filed suit against a man who spread untrue rumors that he had had sexual relations with her. Public reports that his unmarried daughter was no longer a virgin so disturbed one resident that he had the girl's innocence verified by four

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in 18th- Century Aleppo

15 177

midwives and duly recorded in an official document. To avoid such adverse publicity parents of girls who lost their virginity by an allegedly innocent mishap secured the court's certification and publicized the story among neighbors.32 The weight of public opinion hung heavy over this milieu. How personal information about others could be used as an instrument of social control is revealed best in the treatment of local offenders. People informed the authorities about neighbors who engaged, even indoors, in unlawful activities such as prostitution, gambling, and the sale and consumption of wine. And they proceeded to expel them from the neighborhood.33 At play here was more than local obsession with moral standards. The authorities held each neighborhood responsible collectively for behavior within its precincts. Residents were expected to make local misdeeds unknown and find the offenders. The entire locality suffered a heavy fine for crimes which it failed to report or discover, including even illicit affairs and premarital pregnancies. Based on Ottoman penal legislation, the principle of collective responsibility fostered a pervasive dread of official reprisals.34 It encouraged prying by neighbors who might otherwise have been more inclined to exercise civil inattention to some deviations around them. In the circumstances, the denouncement and expulsion of potential troublemakers were natural acts of self-defense. So too were the restrictions on movement into and within neighborhoods. The multitude of gates which every night sealed off quarters and even individual streets were intended to control the entry of undesirables. Although some have seen in these barriers expressions of a concern for privacy, this was not how contemporaries explained them. It was always the pursuit of security that the residents invoked when they sought arrangements to control movement in their residential districts.35 In the limited privacy of neighborhood life the government found an instrument of social control which it turned conveniently to its own advantage. It exploited group familiarity to manufacture, at minimal cost and effort for itself, a system of indirect policing as well as a lucrative source of revenue. It applied this system not only to Muslim neighborhoods but also to the Christian and Jewish communities, within which personal privacy was equally limited. The premise of official policy—that people ought to be familiar with their neighbors' conduct and bear some responsibility for it—set a threshold of intrusiveness higher than that desired by the residents. They adapted to the obnoxious pressures in various ways. From fear, if not conviction, many chose to cooperate. At times they covered up crimes in order to avoid anticipated reprisals. Jewish maids who became pregnant out of wedlock were sent by their masters to deliver in another town or were quickly married off locally, all to ward off a fine on the entire community.36 Some neighborhoods sought to bypass collective responsibility altogether by securing pledges of personal liability from the families or landlords of potential troublemakers.37 The overbearing familiarity of neighborhood life bred an oppressive atmosphere which colored relations and attitudes. Popular lore, rich in words of wisdom about neighborly relations, exposed this darker side of group life. "Offend even your pasha but not the people of your quarter," advised one local saying. When

16

The Individual and Privacy 178

Abraham Marcus

experiences became unpleasant the residents could give vent to their inner sentiments by telling how the folk wit Juha, upon becoming sultan, ordered that his neighbors be the first to be sent to the gallows.38

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

CULTURE, SOCIAL CONDITIONS, AND THE SHAPING OF PRIVACY

In their neighborhoods, homes, and general social milieu Aleppo's townspeople encountered the realities of an imperfect world. Aspirations not attained, rights not honored, rules not followed—these they learned to accept as normal features of life. What their ideals prescribed and recommended often collided with the demands and constraints of social circumstances. Privacy was one area where actual access seemed to depend in large measure on social conditions beyond the control of individuals. The size and layout of the city, its social structure and distribution of wealth, its economic and demographic conditions, its levels of technology and material culture, its political stability and degree of official intrusiveness—all these shaped the level of privacy that people could expect and attain. Because the opportunities and constraints of this matrix were unequally distributed in the population, access to privacy tended to be uneven. Individuals and groups more favorably placed in this scheme, especially those possessed of wealth and status, stood to enjoy a greater measure of privacy. Were the ideals and beliefs of this society not that important after all in determining how people behaved? Can we essentially view their actions as responses to the unalterable realities of their times? The ideals were clearly not the sole determinants of behavior. Our conclusions would have been quite misguided were we to infer the actual realities of privacy from the norms. And yet the culture seems indispensable for interpreting the meaning of privacy. It defined for the townspeople the bounds of the desirable and the possible, regulated their threshold of tolerance, and conditioned their responses to situations. Their housing, clothing, and, above all, social relationships displayed the profound impact of cultural norms. Even when it does not account fully for certain conditions the culture makes their meaning more intelligible. Knowledge of local values allows us to understand, for instance, that the multiple occupancy of houses was an undesirable product of poverty rather than an acceptable trait of lower-class lifestyles. The stability of the cultural milieu in the face of social changes, and its rich mixture of elements, including many of non-Islamic origin, left their own mark on the nature and dynamics of privacy. The basic fact about privacy is that it was pursued in a cultural milieu that promoted it in restricted ways only. The residents expected limited privacy in a variety of social situations. While this might appear as some cultural deficiency associated with a "traditional" society, it is more helpful to see in it the result of that selection which every culture must make among competing demands. Not all values can be attained simultaneously; something must often give. Aleppo's society sacrificed some forms of privacy for more pressing human needs. If the intimacy of group life, the domestic living arrangements, and the density of the urban environment all entailed an inevitable loss of personal privacy, they were also part of an accepted order which promised compensating satisfactions. Set

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in 18th- Century Aleppo

17 179

against the realities of the time, especially the unyielding hardships of survival, the trade-offs made functional sense. Of course, like all trade-offs they too had their costs, evident in a measure of social tension and conflict. The limited conception of privacy can be traced in part to this adaptation of norms to social conditions. In a more basic way it may be linked to the culture's vision of the individual and his relation to society. The correlation between privacy and broader notions of social order is suggested by developments in contemporary Western societies. A new stress on personal privacy was beginning to manifest itself in America and England, primarily among the upper ranks, during the seventeenth and eighteenth centuries. In both areas the development was linked with the rise of individualism, which Lawrence Stone describes as "perhaps the most important change in mentalite to have occurred in the Early Modern period, indeed possibly in the last thousand years of Western history."39 The product of a whole range of changes, it involved the relaxation of, or attack on, community discipline, church power, patriarchal authority, deferential attitudes, and absolute state authority. Behind it were ideas about respect for personal autonomy and the right of the individual to self-expression and to the free exercise of his will within limits. The proponents of individualism argued, against the traditional wisdom, that the pursuit of individual happiness and of selfinterest would promote the public good rather than threaten it. The increased attention to privacy and the expectation that it be protected as an inherent personal right grew out of this new cultural climate.40 Middle Eastern society of the eighteenth century experienced nothing like this individualism or the underlying changes which gave rise to it. Its cultural ideals, expressed in legal thought, religious doctrine, and political theory, continued to uphold a social order based on community, religion, and obedience to authority. It may be argued that the communal and authoritarian orientations of the culture embodied a vision of the individual and his personal autonomy which aborted a broad conception of privacy. For Muslim jurists, theologians, and political thinkers, the unit of concern was the political-religious community, to which the interests of the individual were decidedly subordinate. Islamic law tended to emphasize the duty of the individual to act in accordance with the sacred prescriptions, not freedoms inherent in him. The inviolability of life, property, and honor were perceived as safeguards of the welfare of the entire community, not as fundamental personal rights. Islamic political theory echoed the same conception of the individual: it contained no mention of the rights of man or the concept of freedom, nor did it set any checks on state power grounded in the political rights of the subjects.41 These were not mere abstractions removed from the plane of everyday behavior. They molded the basic institutions of Aleppo's society, rationalized the structures of authority and control at all levels, and provided powerful ideological underpinnings for social order and cohesion. By lending its backing to these conceptions Islam rendered them all the more binding and immune to serious challenge. The overall place of Islam in shaping privacy should not be overstated. Its age-old norms of modesty and sexual morality gave physical privacy a distinctly Islamic coloring. However, it did not determine all the norms of privacy or the

18

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

180

Abraham Marcus

conditions affecting access to it. Many aspects of economic life, social relations, material culture, fashion, and taste were untouched by the rulings of Islamic law and doctrine. Many attitudes, desires, beliefs, and practices of the residents existed outside the Islamic fold; indeed, of some, the moralists took a dim view. With some variations Christians and Jews shared the norms and ideals of their Muslim neighbors. Too little, however, is known of the personal perceptions and responses of contemporaries to give us a full sense of the ways in which they saw their world. They left us no memoirs, autobiographies, personal journals, or social commentaries from which we can glimpse something more intimate and introspective than the available records provide. (Was this silence itself a symptom of a low stress on individualism?) Because of the restricted literacy of the public and the absence of printing, much of the popular lore of the day remained unrecorded. The full extent to which culture shaped behavior or adapted to changing social conditions becomes particularly difficult to assess when the culture itself is inadequately known. The notions of privacy current in Aleppo do not seem to have undergone any marked change in the course of the eighteenth century, despite a variety of social, economic, and political developments. The city experienced no technological changes which altered lifestyles, created unfamiliar threats, or fostered new expectations in the area of privacy. More important in explaining the continuity was the stability of the general world of thought and belief. The culture and the basic institutional arrangements were able to withstand the pressures of unsettling changes in everyday conditions, including those affecting the access to privacy. During the recurring periods of famine, epidemic, and economic crisis—events which often struck simultaneously—the welfare and dreams of thousands of families collapsed almost overnight. The degree of intrusion by the authorities was apt to fluctuate as the turnover of Ottoman governors—an almost annual ritual—brought in varying styles of policing the population. Toward the end of the century the level of public peace and security deteriorated considerably as local groups fought openly for a greater share of power. The impact on privacy of these and other developments is difficult to reconstruct. But the dynamic itself recommends that we think of privacy as a process rather than a static condition. It also cautions against applying Aleppo's case to other communities or periods without allowances for the facts of diversity and change. Not even all Middle Easterners shared Aleppo's experiences; the great majority of them lived in small rural communities differentiated in many ways from the urban world. At the same time, Aleppines were not that far removed from the daily experiences of their contemporaries in the West. In the cities of England and New England neighborhood familiarity and prying, deferential social attitudes, limited government intrusiveness, large households, and domestic conditions inimical to privacy were all normal features of life. Comparative studies of privacy are apt to reveal similarities and differences obscured by conventional geographical and cultural divides. The study of privacy in Aleppo touches on some problems of methodology and interpretation relevant for Middle Eastern social history in general. One

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Privacy in 18th- Century Aleppo

19 181

important message is that social phenomena cannot be explained in strictly cultural terms. This bears stressing if only because Middle Eastern history boasts a venerable tradition of cultural interpretation of behavior. Muslims have often been portrayed as heirs to a total way of life shaped almost entirely by Islam, and their daily behavior as the acting out of the demands and expectations of this cultural-religious system. More helpful for understanding the actual workings of society is an approach consciously attentive to the distinctions between the ideals and the actual behavior of individuals. The two are related, but quite often not identical. In an imperfect world it becomes hazardous to infer the realities from the norms, or the ideals from actual behavior. Grappling with the intricate flow of interactions between cultural and socioeconomic factors, however, can be a fruitful exercise inasmuch as it illuminates the dynamics of behavior and change. The notion that Islam makes up the sum total of Middle Eastern culture is certainly of methodological convenience in light of our relatively firm familiarity with the formal norms and doctrines of the faith. It overlooks, however, the layers of popular thought and perception which existed alongside the dominant belief system of Islam. These composed not a marginal zone of deviance or folkloric exotica but a rich store of attitudes and beliefs from which people drew routinely in order to make sense of their world and cope with its problems. Without them it is possible to miss the richness and inner dissonances of the premodern cultural milieu, and to oversimplify the mindset of contemporary individuals. The reconstruction of culture (with a lower-case c) deserves a place not yet accorded it in the research agenda of Middle Eastern history. An improved knowledge of the world of thought and belief in all its complexity will advance the field at least as much as data on prices and population. It is important both in its own right and as an aid for understanding social, economic, and demographic issues. The shortcomings of cultural determinism do not recommend a shift to the other extreme, to the approach (identified often with the Annales school) of those social historians who see behavior and change as products of the economic, demographic, and social "structures" within which individuals find themselves. Here culture tends to occupy a decidedly subordinate place, figuring often as a derivative of the social order rather than as a factor shaping it. In recent criticisms of this approach some European social historians have pointed to the mounting historical evidence for the important role of culture in shaping behavior and change, and to the propensity of culture to alter or remain stable independently of the social conditions.42 The study of Aleppo's society lends support to their observations and to their calls for caution about the intricacies of causal interpretation. The social history of the Middle East, still in its early stages of development, can benefit from a sensitivity to the interplay of culture and other factors in historical situations, and from an approach which weaves them into a single web of meaning. DEPARTMENT OF HISTORY UNIVERSITY OF TEXAS

20

The Individual and Privacy 182

Abraham Marcus

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

NOTES 'The court records, Sijill al-mahkama al-shar'iyya, are housed in the National Archives in Damascus, Syria. This paper draws on material in registers 73-104, covering the years 1746-1770 (A.H. 1159-1184). In the notes this source is cited as Sijill, followed by the appropriate register and page numbers. The three cases described above are found in Sijill, 97:123; 90:18; 89:238. 'Historical studies make up only a small portion of this literature. The works cited in footnote 26 below reflect the growing attention to privacy in past societies. Much of the available writing on privacy focuses on modern experiences and concerns, and represents diverse perspectives ranging all the way from the philosophical to the economic. For examples, see R. A. Posner, The Economics of Justice (Cambridge, Mass., 1981), chs. 9 and 10; J. R. Pennock and J. W. Chapman (eds.). Privacy (New York, 1971); J. B. Young (ed.), Privacy (Chichester, 1978); A. F. Westin, Privacy and Freedom (New York, 1970); L. Sciama, The Problem of Privacy in Mediterranean Anthropology," in S. Ardener, ed., Women and Space (London, 1981), pp. 89-111; B. Schwartz, "The Social Psychology of Privacy," American Journal of Sociology, 73 (1968), 741-752. 'Sijill, 97:52. 'Sijill, 81:29; 97:52; 101:265. For a contemporary description of practices in the public bath houses see A. Russell, The Natural History of Aleppo, 2nd ed. (London, 1794), 1:132-138,380-382. s On Jewish regulations and the communal dispute see Y. Qasin, Mahaneh Yehuda (Livorno, 1803). 'Detailed regulations issued by the Christian communities are published in F. Taoutel, Watha'iq ta'rikhiyya can Halab, vol. I (Beirut, 1958), pp. 109-111, 135-138; vol. 2 (Beirut, I960), pp. 88-89; vol. 3 (Beirut, 1962), pp. 57-58, 135. 'Archives Nationales (Paris), Ministere des Affaires Etrangeres, Correspondence Consulaire, Alep, Bl 90, folio 140a (22 April 1767), and folio 154 (26 May 1767); A. Rabbath (ed.). Documents inedits pour servir a lliistoire du Christianisme en Orient (XV1-XIXsiecles), vol. 2 (Paris, 1910), p. 55. 'Sijill, 87:32. 'Sijill, 79:206; 83:8,42,62, 247; 87:335; 89:791; 90:2, 5, 7, 23,42,67, 149; 91:13, 154, 165,186, 216, 276, 278, 286; 97:36, 40, 61, 72, 78, 81, 82, 87, 94, 121, 149, 177; 101:13, 113, 153, 205, 311, 378; 102:32,57, 187, 230. '"Sijill, 101:133. "Russell, Aleppo, vol. 1, p. 295. >2 The data are drawn from all sales deeds recorded for three twelve-month periods: June 1750-May 1751; March 1755-February 1766; and September 1758-August 1759. A modem cadastral survey confirms the predominance of small homes in Aleppo's old sections. The results are analyzed in J.-C. David, "Alep, degradation et tentatives actuelles de ^adaptation des structures urbaines traditionelles," Bulletin d'ftudes orientates, 28 (1975), 19-49. "Many of the properties transferred were shares of houses. In the table their prices were adjusted to reflect the value of the whole properties. For instance, if a one-third share in a house (or, following local usage, 8 qirats out of the 24 which constituted the whole) was sold for 50 piastres, I considered the market value of the whole house to be 150 piastres. "Sijill, 90:174-175; 80:40, 51, 52, 74, 99, 106, 108, 129, 133, 157, 164, 181, 204, 214, 236; 86:332; 88:62,64,88. '5S/yi7/, 76:611; 83:81,218; 87:154; 89:769; 91:134,474; 95:10; 102:212. "Stfill, 76:475; 80:29, 44, 58, 92, 126, 141, 162; 85:19; 87:3, 92, 102, 134, 144, 169, 199, 264, 306, 371, 374; 89:749; 90:29, 108, 181, 189,251; 91:4,278; 95:211; 97:93,205, 256; 102:63, 107; E. Laniado, Degel Mahaneh Ephraim (Jerusalem, 1901), folio 42; P. Russell, A Treatise of the Plague (London, 1791), pp. 63-64; Russell, Aleppo, 2:63,69. "For descriptions of dwellings in these qaysariyyas see Sijill, 75:290, 305; 76:225, 482,614; 78:101, 287,295, 312; 79:169; 85:268; 103:200, 360. "For example. Correspondence Consulaire, Alep, Bl 87, folio 376a (30 August 1757), and folio 391 (24 December 1757). "Muhammad Raghib al-Tabbakh, I'lam al-nubala' bi-ta'rikh Halab al-Shahba\ vol. 7 (Aleppo, 1926), p. 24. "Syitl, 85:95,554; 98:398; E. Shamma', Qorban isheh (Livorno, 1820), folio 38a; Kamil al-Ghazzi, Nahr al-dhahab fi ta'rikh Halab, vol. I (Aleppo, 1923), p. 283; Russell, Aleppo, 1:281-282, 2%; 2:79.

The Individual and Privacy Privacy in ISth-Century Aleppo

183

Russell, Aleppo, 1:280-281. "Sijill, 76:478, 479, 483, 508, 509; 79:104, 121, 129, 145, 229; 80:243, 272, 280, 298, 307, 326; 82:415, 472, 498; 83:150; 85:307, 313; 86:343; 88:117; 89:795, 844; 90:49; 91:165, 208, 328, 368; 92:8; 93:71, 1I9,26I;96:I40; 102:8, 180,252. "For example, Sijill, 91:276, 278. "Arabs living in crowded environments have actually been observed to shut themselves off in company as a way of being alone with their own thoughts free of outside intrusion. See E. T. Hall, The Hidden Dimension (New York, 1966), p. 148. "For more details see my "Men, Women and Property: Dealers in Real Estate in ISth-Century Aleppo," Journal of the Economic and Social History of the Orient, 26 (1983), 137-163; and "Real Property and Society in the Premodern Middle East; A Case Study," in Property, Social Structure and Law in the Modern Middle East, A. E. Mayer, ed. (Albany, 1985), pp. 109-128. 26 L. Stone, The Family, Sex and Marriage in England. 1500-1800 (New York, 1977), p. 253; P. Aries, Centuries of Childhood, R. Baldick, trans. (New York, 1962), pp. 390-399; D. H. Flaherty, Privacy in Colonial New England (Charlottsville, Va., 1972), p. 40; J.-L. Flandrin, Families in Former Times: Kinship, Household and Sexuality, R. Southern, trans. (Cambridge, 1979), pp. 92-93. 27 M. Khayr al-Din al-Asadi, Mawsu'at Halab al-muqarana, vol. 1 (Aleppo, 1981), p. 216. "For an example of resistance and evasion in 1849 see Taoutel, Watha~'iq, 3:130-131. 29 S. J. Shaw, "The Ottoman Census System and Population, 1831-1914," International Journal of Middle East Studies, 9 (1978):33I. "Taoutel, Watha'iq, 1:135-138; 2:88-89, 93; 3:57, 85, 135; Taoutel, "Watha^iq ta'rikhiyya 'an Halab," al-Mashriq, 42 (I948):234; al-Ghazzi, Nahr, 1:279-280; Laniado, Degel, folio 42; Russell, Aleppo, 1:144. "StjttI, 75:11; 78:49, 61, 83, 160, 162, 164, 306; 83:45, 72, 231; 101:9, 94, ISO, 155; 102:101, 138, 147,230,292. "Sijill, 97:177; 87:183, 299; 90:18,35; 91:276. "Sijill, 79:36, 37, 74, 133, 155; 81:53; 83:44, 60, 80, 126, 206, 212; 87:78, 92, 146, 197, 293; 90:27, 50,71, 103, 104,105,107, 108, 117, 126,129, 132, 140,228; 91:128,245,295; 93:72, 125; 102:12. "Correspondence Consulaire, Alep, Bl 85, folio 13 (15 January 1746); Sijill, 83:62; al-Ghazzi, Nahr, 3:297,320; Russell, Aleppo, 2:55-56. For references to communal responsibility in the Ottoman penal code see U. Heyd, Studies in Old Ottoman Criminal Law, V. Manage, ed. (Oxford, 1973), pp. 106, 115,117-118, 128-129,235. "Si/ill, 82:553; 85:198; 101:219, 262,370; 102:267,290,291. "Russell, Aleppo, 2:84. "For example, SUM, 74:264; 90:227. * Al-Asadi, Mawsu'at Halab, 1:316. "Stone, The Family, p. 4. '"Stone, The Family, ch. 6; Flaherty, Privacy. 41 See, for example, N. J. Coulson, "The State and the Individual in Islamic Law," International and Comparative Law Quarterly, 6 (1957), 49-60; A. K. S. Lambton, State and Government in Medieval Islam (Oxford, 1981), esp. pp. xv-xvi; W. M. Watt, Islamic Political Thought (Edinburgh, 1968), pp. 96-98. 42 R. Darnton, The Great Cat Massacre and Other Episodes in French Cultural History (New York, 1984), pp. 257-259; L. Stone, The Past and the Present (Boston, 1981), pp. 80-81. 21

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

21

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

[2] Downloaded by [University of California, San Diego] at 23:00 01 May 2017

AN INTRODUCTION TO STANNER'S CONCEPT OF PRIVACY

JOHN HILARY MARTIN

The remarks offered in Professor Stanner's paper "Privacy and the Aboriginal People" were made for the Law Reform Commission in 1977. What use the Commission made of them is unknown. A traditional aboriginal camp may be a community without walls, but privacy is still an important part of aboriginal life. There are many traditional ways in which social separation is achieved. Who can address whom, what register of language will be used, the manner in which a person or a group should approach another's fire, and how the camp itself should be set out and arranged are not matters of accident but expressions of social engineering. Since these ways in which individuals approach each other are traditional we can expect that they will ultimately have their roots hi the Dreaming. Streets made up of a row of walled houses with rooms to screen an individual from the view of others do not secure privacy for aborigines nearly as well as their

24

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PEOPLE FROM THE DAWN

traditional conventions. Standard town plans developed by white administration with an eye to solving traffic patterns and providing easy access to stores and town center seemed to be wrong somehow. They inadvertently broke up traditional patterns of privacy because they kept bringing the wrong people together. When town plans were made to resemble the pattern of a camp in the bush things went much better. The plan of a camp was not set out at random, although to the stranger it might look that way. It followed the design of a community's Dreaming, ~ more carefully the larger it was. People who should not meet, or converse socially too much, were put on opposite sides of the camp.1 Arrangements for fires kept space between in-laws and children, and drew the immediate family together. In this short essay Professor Stanner shows convincingly that Aborigines and Europeans both share common ground in their understanding and their need for privacy. Every person needs to preserve an.essential self by being habitually able to avoid unwanted intrusions into their living space, eavesdropping on their ultimate conversations, and gratuitous disparagement by casual strangers of the treasury of their cultural values. Some of the issues which Professor Stanner brought attention to in the 1970's are lessons which still need work today. Perhaps his most salient point is that Europeans and others consistently misrepresented Aboriginal institutions in a belittling way. At times Aboriginal institutions were interpreted with ulterior motives. His observations came primarily from long experience with administrators, academicians and plain Cf., J.H. Downing, Aboriginal 'Dreamings' and Town Plans, (Alice Spring: Institute for Aboriginal Development, 1974). 1

148

The Individual and Privacy

THE CONCEPT OF PRIVACY

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

ordinary citizens who, too often, dishonored needs and privacy rights in their dealings with Aboriginal peoples hi the Northern Territories. Although written a generation ago, Professor Stanner's remarks are indeed fresh and applicable to many situations today. At the beginning of a new millennium situations comparable to what he described exist in Australia and beyond.

149

25

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY AND THE ABORIGINAL PEOPLE1

W.E.H.STANNER

The Aborigines do not appear to have had in their languages any abstract concept, or any isolated behaviour pattern in their cultures, which exactly duplicated what we mean by privacy or its pursuit. But [if] an intense dislike of intrusion or crowding by others; of public disparagement and embarrassment, cause for shame; and of the misappropriation and misuse of precious symbols of their identity as individual persons and as groups; come somewhere near the core of our notion of privacy, then the Aborigines share much common ground with us. They appear widely to be increasingly conscious of and resentful about the invasive curiosity, the enforced close company, and the unremitting influence and authority of Europeans, and of what they interpret as our continuous and inveterate misrepresentation and disparagement of their essential

1

MS # 400 on the Barwick List Editor

28

The Individual and Privacy

PEOPLE FROM THE DAWN

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

selves and the misappropriation and misuse of their expressive symbols. Direct comparison with European concepts feelings and social habits are unwise and have to be hedged around by much that is idiosyncratic, but it is nevertheless a reasonable inference from Aboriginal linguistic concepts and behaviour patterns to conclude that they are irritated about and vexed by much the same developments of modem Europeanism that have made our own homes into less than our castles and our private and personal lives less than inviolable realms. Every anthropologist with field experience can document the common ground and the reasonable inference by case-histories of insensitive intrusion, enforced over-crowding on an unprecedented scale, arbitrary acts of authority, public disparagement of things held dear, and the exploitation for commercial or private European ends of parts of the symbolic culture which according to Aboriginal philosophy is intrinsic to each person's essential self. General propositions of this kind, though readily supportable factually and far from revolutionary, may still need argumentative support because of the generally poor understanding of Aboriginal society and culture amongst white Australians. Just as in the past the new colonists, judging by the externals of Aboriginal society and culture, could not conceive of a landed native people because they did not enclose land, build upon it, or stock or till it, so in the recent past and present Aboriginal social habits which are visible are taken to show that Aborigines cannot possibly put any value on privacy.

Since the growing resentment felt by Aborigines cannot well be denied, it is assumed to be due to the spread of European values (including fallacious doctrines) by assimilation. Just as

152

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE CONCEPT OF PRIVACY the land-use patterns which developed only in agricultural society were mistakenly projected, with enormous anachronism, on to hunter-forager society, so the psycho-social patterns of industrial society are being projected on to the remnants of a society required to live under conditions foreign to their tradition and by all appearances to their wishes. Some of the externals of Aboriginal life give apparent support to the simplistic views. A traditional camp could be seen through from end to end. Rudimentary shelters or huts were so disposed that anyone could see almost everything that anyone else did, at least until the fires died down late at night. The society was one without walls, a community of the eye, in which people did apparently live almost entirely in public view. If a person went about solitarily or in an apparently secretive way, it invited attention, gossip and speculation, which later might harden into suspicion or accusation of mischiefmaking of black magic. There were other features too — the sharing of food and possessions, the division of labour, the arrangements of domestic life, the patterns of residence and sleeping in collocations of several scores, the frequency with which children were looked after by people other than their parents, the obvious fact that people watch each other like hawks (an Aboriginal folk-saying) - which made it easy to miss a less visible reality, that the community of the eye was thoroughly Nelsonian. Anyone could see through a camp from end to end, and almost everything that anyone did, but it was thought offensively intrusive to notice, draw attention to, or even mention much that happened, and it was a matter of high shame to behave openly in ways that under ruling norms should happen only in seclusion

153

29

30

The Individual and Privacy

PEOPLE FROM THE DAWN

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

(e.g., the display of affection or intimacy between spouses, defecation, sexual intercourse). An onlooker from another culture could easily miss the fact that the space filled by a camp was divided into zones or realms each of which was declaratory of a right of persons or groups to enjoy a domain of individuality and comparative autonomy and to rebuff intruders. Each camp, for example, had a surround which was wholly unmarked but through which a visitor, especially a comparative stranger, might not pass until invited. A visitor from another descent group, even of the same totem, might be expected to make his camp outside his host's and in the direction of his own clan-country. Within a camp there was a protocol for the placement of fires and nuclear families. A man and his wife's brother could share a fke but it would have been thought horrendous for a man and his wife's mother. To step over a fire or to pass across one on the inside of a camp were to infringe the personal space of a fire possessor. The Aborigines were by long tradition a people who positively preferred to live at close quarters with kith and kin for about as long as ecological considerations made agreeable and the state of socio-political relationships made prudent. At such close quarters sociability was premial. Coarse, boorish or inconsiderate behaviour and hard and insulting language seldom occurred unless open conflict suddenly flared or (more recently) the abuse of alcohol had started. In such circumstances a careful avoidance of any conduct invasive or abusive of another essential self, or, in other words, a high value on privacy might seem almost a logical corollary, as it certainly was a practical necessity of social life. One of the physical patterns of their life is no longer universally visible, and some of the truths it expressed can be seen only hi caricature, which in part has led to the false idea that

154

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE CONCEPT OF PRIVACY

privacy and Aboriginal society have always been poles apart. For example, the former cycle of livelihood tended to have two phases — one of assembly, one of dispersal. During the phase of assembly into large collocations tensions built up and grievances multiplied, particularly in the oppressive climatic conditions of the sub-tropical and tropical north, and if elsewhere the assembly lasted over-long. When the time for dispersal came, and especially when it was possible to move widely over a regenerated bushland, it was as though life were made up of a new and marvellous compound of withdrawal, self-reliance, contemplation and concentration, which is one observation concerning the European sense of privacy that fits the Aboriginal scene quite well.2 The models of privacy suggested by psychologist and sociologists do not suit Aboriginal conditions at all well, although the constituents and the functional needs which are suggested often evoke a distinct resonance. For example, a well known analysis of four basic states or constituents of privacy, and some related functional needs, might well be applied to clarify conditions on some of the large, restive mission and government settlements in north Australia.3 The suggestion is that privacy can be expressed in four basic things: solitude (in the sense of freedom from observation by other people), intimacy (in the sense of privacy for members of small self-chosen groups, such as families), anonymity (in the sense of freedom from public surveillance and accountability), and reserve (in the sense of a right to withhold one's essential self from public disclosure). There is a further suggestion of consequent basic needs — a need for personal autonomy (the right to choose Cf. Chemayaff and Alexander, 1963 3 Cf. Westin, 1963 2

155

31

32

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PEOPLE FROM THE DAWN privacy when and if it is desired); a need for emotional release from unbearable pressure through solitude, intimacy, or anonymity; a need for periods of self-evaluation to ponder and decide the course of future behaviour, and to establish psychological and social distance from others; a need for determining when and what information one should make available to others about oneself. Two suggestions are particularly interesting; that the element of personal autonomy in privacy is clearly related to territorial control, because men cannot realize or experience true privacy except through the strengthened sense of a self who commands a particular space; and that one of the privacies that Aborigines, as artists in the broad sense may most need is creative privacy, sufficient to let them draw stimuli from their new environment but not to be subject to its hectoring demands. Although Aboriginal languages may not have verbalized concepts of privacy in the European sense, they do have concepts which taken together cover much the same ground. One of the relevant concepts has to do with causing shame to others or exposing oneself to it (in Murinbata, 'shame' = jidiwe). It is possibly the strongest emotion generated in Aboriginal social life producing by way of remorse, revenge or attempted exculpation a response which may be very violent or reckless or disproportionate. A list of shaming things would be very long and variegated. It would include, among many others, such simple things as the mode of approach to and entry into camps, the placing and use of fires, and the constant begging of food, and complexities such as the correct choice between avoidance, high formality, incivility, licentious wordplay and mock-hostility in dealing with certain relatives. Such things are not to be dismissed as interesting facts of custom. They are value-laden evidence of realms of social life

156

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE CONCEPT OF PRIVACY which are deemed by decent-minded Aborigines to be too destructive of their own or others' self-esteem to be handled indelicately. It could be argued that shame in the Aboriginal sense is a dramatization of breaches of personal or group privacy, brought about by intrusions upon realms so private that the acts show shamelessness in the intruders. The Murinbata concept of shamelessness means, literally, without head lice, perhaps connoting lacking something with ordinary, decent people have in plenty. The least acquaintance with Aborigines will produce evidence of their care to avoid, and to shield others from, public embarrassment or shame. It was thought decently considerate to warn others of likely causes e.g., the unseen approach or presence of relatives needing to be ignored or received with formality by the person warned. Indeed, the whole space filled by an Aboriginal society was veiled invisibly into public and private divisions or realms, and most Europeans are thought by Aborigines to be unspeakably gauche in not knowing which is which. It will be obvious from these examples that the distinctiveness of Aboriginal social structure and culture must be fully appreciated if what is idiosyncratic in their concept of privacy is to be understood. Some of the more obvious facts are widely known if insufficiently understood, e.g., the requirement that a man and his wife's mother should never meet face to face, mention the other's personal name, acknowledge his or her presence, or give things to or receive things from the other in a direct way. Even in a modem encampment or settlement, at least when the inhabitants can arrange the residence pattern, a wife's mother and daughter's husband will seldom if ever be found living next door to or directly opposite each other, or in positions from which the unwritten rules of avoidance cannot be obeyed. It may not be as well known that quite intense rules restrict free social intercourse between brothers, brothers and

157

33

34

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PEOPLE FROM THE DAWN sisters, and close affines. Brothers, when fully grown, had to be somewhat circumspect in sitting together so that knees, legs and elbows did not touch. The social disjunction between brother and sister went beyond formality. A brother could be polluted by and need ritual cleansing from his sister's exuviae, even by her bedding, he would never use her personal name or even the most chaste endearment, but would use some uncivil or even demeaning form of address (e.g., rubbish). At the approach of a brother-in-law or other male affine it as thought appropriate to use expletive sounds which acknowledged the approach but said nothing. These are idiosyncrasies of Aboriginal culture by which there is a public recognition of a realm private to particular persons or groups of persons: a rule of generality, applied regularly, in a way such that a norm is upheld by sanctions. There are certain other linguistic conceptions that need mentioning. Two contrasts may readily be made in any Aboriginal language I have heard spoken. One is the contrast between things which are matters of public knowledge and things which are secret to the class of initiated men and that sense are private to them. In the same way, the things which can be secret and private to women as a class. Special, usually secret terms apply to such things, and not seldom, a special, secret language. Secret things may have inside and outside names or terms, only the outside terms being used by the unauthorised. A second contrast is between things which are secret and private in this sense and personal matters which are private to a particular person, and by convention are not to be raised, questioned, or bruited around. My general contention is that in spite of the apparently collectivist emphasis of Aboriginal society, there was — and still is — an intrinsic concern with the essential self of individual persons, and therefore with the private personality, the inner

158

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE CONCEPT OF PRIVACY most idea of privacy. For example, a man could not speak to a child who had been given the same personal name as his, until a public ceremony had taken place and valuable gifts exchanged. Two siblings, regarded as structurally equivalent, i.e., as substitutable for each other for certain purposes in matters turning on considerations of kinship, could not conceivably be confused in other social reckonings. A general account of Aboriginal privacy and its exposure to damage or erosion by European law, law-officers or general administrators requires an appreciation of values enshrined hi the Aboriginal conception of the individual person as bearer of a distinctive culture and as exponent of the reality stressed by it. The subject [of privacy] is inseparable from the philosophical considerations.

159

35

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

Privacy. An intercultural perspective

[3]

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Rafael Capurro

Hochschule der Median, University of Applied Sciences, Nobelslr. 10. 70569 Stullgarl, Germany E-mail: [email protected]; hlip:j!www.capurroMe Abstract. This paper deals with intercultural aspects of privacy, particularly with regard to differences between Japanese and Western conceptions. It starts with a reconstruction of the genealogy of Western subjectivity and human dignity as the basic assumptions underlying Western views on privacy. An analysis of the Western concept of informational privacy is presented. The Japanese topic of "denial of self" (Musi) as well as the concepts of Seken, Shakai and Ikai (as analyzed by the authors of the companion piece on privacy in Japan) give rise to intercultural comparisons. The paper addresses the question of privacy in cyberspace and mass media. Finally the question of freedom of speech is related to the Japanese concepts of Ohyake and Watakimi. Key words: autonomy, cyberspace, denial of self, freedom of speech, human dignity, Ikai, informational privacy, intercultural information ethics, Japan, mass media, Musi. Ohyake, privacy, Seken, self, Shakai, subjectivity, Watakusi, Western countries

Introduction The present debate on privacy issues in Western societies has prima facie two origins, namely the security measures arising from terrorist attacks, particularly since 9/11, and new developments in the field of digital networking and mobile devices (ubiquitous computing), leading to what is being called a surveillance society. But in fact, this debate presupposes basic epistemological and moral concepts such as subjectivity, autonomy, data protection and the underlying idea of inviolable human dignity. This paper deals with the question of how these concepts became part of our moral and legal self-understanding in Western countries and how far this view of ourselves and our selves, and consequently of privacy, can be understood by way of comparison with the Japanese perspective of Seken, Sliakai and Ikai and particularly with regard to the topic of "denial of self" (Musi). My argument will be not just to oppose two apparently fixed conceptions of privacy but to reflect analytically and historically on the intertwining of our cultural and conceptual frameworks beyond the somehow simplistic idea of a general concept of privacy unaffected by cultural differences. The paper specifically addresses these issues in mass media and in the Internet, relating the concepts of privacy and freedom of speech to the Japanese concepts of Ohyake and Watakusi.

This paper started as an online dialogue with Makoto Nakada [N] and Takanori Tamura [T] (their article in this article volume). It is by no means conclusive. We arc at the beginning of what 1 call intercultural information ethics, whose aim is not just to compare similar or dissimilar concepts by juxtaposing them, or to look for a conceptual or even moral consensus - but to become aware of our mutual biases on the basis of a nuanced understanding of similarities and dissimilarities beyond the simple dichotomy between "East" and "West."

Japanese and Western subjectivity In his book Between Human Being and Human Being (translated into German by Elmar Wcinmayr, a philosopher and Japanese scholar1), Bin Kimura analyses the structure of Japanese subjectivity as different from the Western one. According to Bin Kimura and Wcinmayr, Japanese subjectivity is discontinuous and thus opposite to a classic Western view of subject and identity as something permanent and even substantial. "Discontinuous identity" means that subjectivity is 1 Bin Kimura. Hiw to hito to no aula. Tokyo, 1972 (German translatation by E. Weinmayr, Zwischen Mensch and Mensch. Slrukiuren japanischer Subjektivitai. Philosophisches Buchgesellschaft Darmstadt, 1995)

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

38

The Individual and Privacy

38

RAFAFI, CAPURRO

the effect of a network of relations and situations. This would explain in some way why my colleague [N]'s students are so interested in getting information about the situation surrounding the Tutiura homicide (Nakada and Tamura, this volume). The meaning of the subjectivity of the murderer discloses itself, at least partially, when the situation is analyzed on the basis of a range of information - including information that, on the one hand, reveals more precisely about the network of relationships, but does so, on the other hand, only by violating Western conceptions of "privacy." One main point of Bin Kimura's analysis concerns the aspect of feeling guilty. European and Japanese subjectivities are similar insofar as individuals feel guilty vis-a-vis a higher and meta-individual dimension or power. But in the case of European subjectivity, this power comes from beyond in a vertical sense, while in Japan it comes from a horizontal space between us. If we consider this experience of feeling guilty as a basic moral experience, then we have a key for an intcrcultural analysis of the Tutiura homicide as described by my Japanese colleagues. That is, if we operate within a (Western) society with strong or substantial subjectivities, which are continuous, then the meaning of "privacy" and respect for this "privacy" concerns basically this individuality, i.e., as a continuous, substantial something that should be protected, no matter the situation and no matter what happened. Indeed, respect for autonomy and individuality belong to the basic moral and legal norms in the West. On the contrary, if we arc dealing with a (Japanese) subjectivity - one which is not permanent, but dependent on situations and networks of relationships - then there is no possibility for respecting "privacy" in the Western sense as a permanent quality of a substantial subject. The result is a world with clear rules - Japanese Seken - that arc not based on the respect for permanent identities but on the respect for the spacc(s) and situations between individualities - Japanese Aida. This could be a reason why Western privacy rules remain Shakai to Japanese, i.e., not related to the structure of Japanese subjectivity. In sum, following my Japanese colleagues' analysis, the Japanese moral world - or ethos in Greek terms, i.e., the moral rules proper to a specific society - embraces three dimensions and their mutual relationships, beginning with Seken and its negation Ikai; Seken in turn is contrasted with a more Western Shakai; and finally, Ikai contrasts with Shakai as well. According to my colleague [N] and other Japanese scholars like Yoshihiko Amino and Masao Yamaguchi (this volume) Ikai is a dangerous but at the same time an attractive place similar to the Dionysian dimension of human existence as analyzed

by Nietzsche. When we discuss these issues in a comparative way, we are dealing with what I call intercultural information ethics.2 Where do we dwell in the West? One meaning of the Greek concept ethos is "to dwell" (for instance, in Heraclitus' (ca. 544 483 B.C.E.) famous dictum, ethos anthropoi daimon, or, following Heidegger's translation, "the (usual) place where humans dwell is the openness where the god (as the un-usual) can appear"3). If the Japanese ethos is three-fold, 1 would say that the traditional Western dwelling is two-fold or "meta-physical," namely the world of sensory experience and the world of sensible experience or, in Plato's (427-347 B.C.E.) terms, the lopos aisthetos (sensory place) and the topos noetos (rational place). The modern version of this division is the Kantian conception that we are dwellers of two worlds, namely the physical world which is strictly deterministic and the world of "ends in themselves" or the "kingdom of ends" (Reich der Zwecke). The latter is the basis of what he calls "human dignity" (Wiirde) as different from things that have just a value (Wen). Human dignity is grounded in the human capacity of going beyond our natural being because we are also "rational beings" Kant uses the neutral term vernunftiges Wesen by giving ourselves univcrsalizablc laws of action and by freely obeying them.4 The moral excellence of human beings consists in being capable of acting on the basis of such selfgiven, universalizable reasons or "maxims." This capacity is grasped, following Kant, in the practical experience of the categorical imperative. Kant postulates the existence of such a place, the kingdom of ends, where rational beings dwell but which remains theoretically unknowable. In today's Western secularized and naturalized societies, it is difficult to make plausible this topical division between the physical and the metaphysical, 2 Rafael Capurro. Intercultural Information Ethics. In Rafael Capurro, Johannes Friihbauer, Thomas Hausmanninger (Eds). Localizing the Internet. Ethical Issues in Interculmral Perspective. Munich, Fink 2005 (in print). 3 Martin Heidegger, Letter on Humanism, in Platans Lehre ran der Wahrheit. Mil einem Brief fiber den "Hnmanismus". Francke Verlag, Bern, 1954, p. 109: "Der (geheure) Aufenthalt ist dem Menschen das Offene fur die Anwcsung dcs Gottcs (dcs Un-gchcurcn)." (Translation by RC). 4 Immanuel Kant. Grundlegung zur Melaphysik der Siiten. In Werke, Ed. W. Wcischcdcl. Wisscnschaftlichc Buchgesellschaft, Darmstadt, 1964, Vol. 7.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

39

INTERCULTLRAL PERSPECTIVES ON PRIVACY

39

even in its Kantian version. In fact, this difference is stated mostly cither as a dogmatic legal postulate or it is theoretically related to some presumed prerogative of human existence such as rationality, consciousness, or personality, making difficult to understand the original Kantian concept of dignity (Wiircle). In many cases, a historical reason for acknowledging human dignity is given, namely the atrocities of World War II. In addition to philosophy and history, a third root of human dignity is the Judco-Christian tradition with its conception of an immortal soul created by God in his own image (imago del). This brief overview shows that there is a tendency in Western thought towards a two-fold dwelling - but due to different kinds of criticisms, the two places have been given different names, and they also look different, according to what the names refer to. In other words, our experiences of subjectivity and, correspondingly, of the fundament of privacy, are in some way also discontinuous at least with regard to the places where this subjectivity is supposed to be at home (whether for a while or forever), and with regard to the view of which of these places is the "common" or usual one and which is the "odd" one. We have been moving two and a half thousand years from one place to the other and sometimes we have just changed the furniture. At the first sight, we arc at the opposite of what my Japanese colleagues call "denial of subjectivity" (Musi), particularly since Descartes discovered a firm foundation (fundamentum inconcussum) in which we dwell, namely the cogito or res cogitans, as well as our corporality or rex cxtenxa.5 But in fact, there is also the Christian tradition of denial of the self which means less the dissolution of the self as in the Japanese tradition, as the idca(l) of submitting the self and its will to the will of God, or, in the Kantian version, to the categorical imperative. In some way, the experience of the categorical imperative is as much an experience ofbeing exposed to something non-natural or odd as it is the possibility of giving oneself universal laws of action that are not based on physical experience and that may even contradict or at least transcend the personal interests of the subjectivity - where subjectivity is supposed to move freely into another place as its "natural house," namely, to the place of social life of "rational beings" on the basis of mutual acknowledgement, and therefore of respecting each other's privacy or autonomous being. This is the reason why privacy is such an important moral good in our Western societies. 1 would tentatively say that 5 See Rene Descartes. Mediiaiiones de prima philosophia. In Descartes Oeuvres, Ed. Ch. Adam & P. Tannery. Vrin, Paris, 1996, Vol. VII.

the moral experience as the experience ofbeing able to act in a good or bad manner corresponds, to the experience of Ikai as a "different world," i.e., as different from the common sense world of natural experience and purely subjective interests. The moral self can find an "asylum" in this moral world which is totally different from the world of power, economy and violence or the common sense world. 1 put this experience in a somewhat simplified version in order to make the structure of Western Shakai more distinct. Morality in the West is a dangerous as well as an attractive place. Our literature, our works of art, and particularly our movies show very often this ambivalence and we praise them particularly when human existence is re-presented in all its tragic and antinomical dimensions, i.e., when our universal moral laws collide with unforeseen situations and we have the impression of being only partially guilty for our bad deeds, i.e., for not taking care of the other in his/her inalienable autonomy and subjectivity by reflecting on the univcrsability of our maxims. This was particularly represented in classical Greek tragedy as the contradiction between Fate (moira) and the human will trying to master the unforeseeable and going therefore beyond its limits (hybris), the key moral experience being the one of moderation (sophrosyne), self-discipline, and developing the capacity of taking care of oneself (epimeleia heautou) as stressed today for instance by Michel Foucault's "technologies of the self. "6 With regard to this kind of Greek dwelling, the ethics of love as propagated by Christianity was seen in the GrecoRoman civilization as primarily something alien. Christianity, on the contrary, managed to integrate the pagan ethos and its theoretical foundation in a long and varied history within its perspective. The Enlightenment brought about a new conception of human equality, universality, and justice that partly removed the old foundations, reshaping the house(s) where many of us live politically, legally and morally today. Because our subjectivity is a result of these experiences, these changes also make it difficult from within our own history to place the questions of privacy and guilty within one perspective. We feel guilty partly with regard to God; partly with regard to the finitude of human existence as Heidegger stressed through his conception of a finite and timely "There-Being" or Dasein that grounds as "nothingness" the options of human action;7 and partly with 0 Michel Foucault. Technologies of the Self. Eds. L.H. Martin, H. Gulman, P.H. Hulton. Amhersl, The University of Massachusetts Press, 1988. 7 Martin Heidegger. Sein and Zeii. Tubingen, Niemeyer 1976 (13th ed.),§ 58.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

40

The Individual and Privacy

40

RAFAFI, CAPURRO

regard to humanity as a horizon which is universal and autonomous, but not purely natural. It seems to me that the question of privacy should be considered from a Western perspective within these stories, arguments, and experiences. Many of these took centuries to grow and led to power struggles and wars within Europe as well as with other cultures. Europeans became aware that the autonomous responsibility for our actions is rooted in ourselves as individuals capable of transcending our selves. This experience of human autonomy and universality, with all its ambiguities and limitations, is at the core, it seems to me, of what we mean when we say that we must protect "privacy." We believe, as my Japanese colleagues remark with regard to the homicide in Tutiura, that this kind of public portrayal is an attempt to question or even to give up the tension between the public and the private worlds in which we live. Western newspapers are full of such stories with all details, pictures, interviews and so on and this is not only a speciality of the tabloid press. Human curiosity, malicious joy, and other "common sense" incentives arc part of our "normal" dwelling. In sum, 1 would suggest that we need a more detailed analysis of the case my Japanese colleagues refer to by identifying differences and similarities with regard to mass media, ethics, and information in our cultures. According to my interpretation, for us Westerners to use a very fuzzy concept public information on such matters as disasters, crime, war, and illness docs not come from outside our secularized morality or Shakai, but we arc eager to find out through ethical reflection and legal action where the limits of such informative actions lie, i.e., where are the limits of using human beings just as means and not also as "ends in themselves?" Given that we live today in a digital environment to protect individual privacy means primarily to protect our digital data. In doing this, we want to protect what we consider a fundament of Western civilization, namely the conception of a stable, free and autonomous subjectivity. Probably in the case my Japanese colleagues refer to, the reason for looking at this publication of personal or "private" information as going beyond Seken may have different roots and also different outcomes. It seems to me that we in Western countries sometimes think about "privacy" in terms of a dichotomy with regard to the public sphere or what we call in German Offentlichkeit. Other dichotomies are, for instance, individual versus community, autonomy versus heteronomy, and identity versus difference. We also have the tendency, arising from our metaphysical traditions (at least since Descartes), to give primacy to the individual and not to the community, viewing the

individual as something separate or transcendent like God himself. This is probably one reason why we try to protect the individual and particularly the world it dwells or its "privacy" and why we sometimes think about public dwelling as a secondary phenomenon that may interfere with or even threaten privacy, as in the case my Japanese colleagues describe. But this is, I guess, only a reaction that leaves unquestioned the phenomenon we face today with regard to digital communication and mass media. The demarcation line between individuals and society is not fixed. Something that seems today like a violation of privacy can be considered tomorrow as a normal situation. For example, the TV series "Big Brother" was questioned from a moral point of view as a threat to privacy - while in fact, most of the time it is just boring. Informational autonomy and privacy in the West The information scientist Raincr Kuhlcn conceives the concept of "privacy" (Privatheit) not primarily in the sense of data protection or of "the right to be let alone," but of what we call in Germany "informational autonomy" (informationelle Selbntbestinunung) that Kuhlen understands as the capacity to choose and use autonomously knowledge and information in an electronic environment.8 This idea of privacy is based on the Western concept of autonomy at least as a "regulative idea" (Kant) that is related at the same time to the society in which such autonomous individualities live. As Kant himself stresses in his opusculum, "An Answer to the Question: What is Enlightenment?",' we can think by ourselves when we are permitted to freely communicate our thoughts to others and vice versa. This can be done if and only if the (digital) media through which we communicate and the content they transmit arc not basically submitted to censorship - including implicit and/or explicit censorship in the form of real or perceived violations of our data privacy. In fact, I believe that today we are transforming the concepts of autonomy and individuality into what we could paradoxically call networked individualities. Our being-in-the-world-with-others is basically a bcing-in-thc-nctworkcd-world. The ethics of informational autonomy is being conceived as an ethics of 8 Rainer Kuhlen. Informalionselhik. Umgang mil Wissen and Information in elektronischen Raumen. UTB: Univcrsitatsverlag Konstanz, Konstanz 2004. 9 Immanuel, Kant. Beanlworlung der Frage: Was isl Aufklanmg? In Werke, Ed. W. Wcischcdcl. Wisscnschaftliche Buchgesellschaft, Darmstadt 1964, Vol. 9.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

41

INTERCULTURAL PERSPECTIVES ON PRIVACY

41

Principle of legitimation (Rechtma'ssigkeit) Principle of accuracy (Richtigkeit) Principle of defining the goal (Zweckbesrimmimg) Principle of non-discrimination (Nichtdiskriminierung) Principle of data "economy" (Datenxparsamkeit) Principle of anonymity (Anonymitat) Principle of informational symmetry (informationelle Symmetrie) - Principle of transparency (Transparem) and Right to get information (Recht auf Auskunft).n

knowledge sharing. The principle of solidarity is not to be separated from the principle of autonomy. But when we speak about privacy, autonomy, and solidarity we do relate explicitly or implicitly to cultural and religious traditions of the West instead of creating a purely analytic distinction. This is why, I believe, other cultures may understand similar terms in different ways or even do not have some of these terms at all, not in the sense of a pure relativism of cultural and linguistic incommensurability but in the sense that the stories behind the concepts are an essential part of them.10 The legal discussion on data privacy in Germany goes back to a decision of our Constitutional Body (Bundesverfassungsgericht) in 1983 concerning the socalled Volksiahlungsurteil (Volkszahlung = national census, Urteil = Judgement, decision) against what was seen as excessive state interference in the field of personal data, but our first data protection law (Bundesdatenschutzgesetz) dates from 1978. In the US the Privacy Act dates from 1974 and the Electronic Communications Privacy Act from 1986. In the European Union the Directive on Data Protection dates from 1995. According to Kuhlen, in Germany we have derived from the principle of (informational) privacy (informationelle Privatheit) the following fundamental principles (Grtmdsatze):

-

10 This starting point leads to a series of further questions intended as the basis for future discussion. I wonder whether the Japanese view(s) on privacy are less individualistic and more group oriented? Is there something like a •'group privacy" in Japanese moral thought and traditional moral life (Sekeift! What about the protection of what is "in between" the (Japanese) selves? Is there a difference between expressing freely "one's inner secrets or sins" and to get this done by, say, the newspaper, AsahF! Privacy in the sense of an attempt of the self lo remain an individual separated from the other seems to be a moral "sin" only from the perspective oCShakai. But if we take the viewpoint ofSeken why should the privacy invasion by the media be considered as (morally) "bad" if the self should be manifest and 'loose" or deny itself? Do my colleague [N]'s students think that this kind of media report is a way of restoring posifactian the dimension of nothingness that binds a group by making clear the reasons that led to the appearance of a discontinuous individuality.' Is "nothingness" something that in a Japanese view could and should be (legally) protected? Is the moral scandal, from the viewpoint of Seken, the fact that group privacy or, if I may say, "nothingness" was violated? According to Nakada (personal e-mail from April 4, 2005), "for Japanese 'denial of self means 'approval of the group' [...] but this 'group' might mean different things in different occasions." In fact, on the basis of "denial of self the "approval of the group" means basically "to give rise to that which is 'in between' us, i.e., nothingness."

- distribution data as exchanged for instance through e-mail, in forums or chats - in which (State) surveillance on formal data as well as on content is possible; - interaction data created during navigation in the network - particularly accessible by Internet providers; - and transaction data as stored by Internet providers particularly with regard to economic transactions.12

We still do not have something like the US Freedom of Information Act. Moreover, when people are willing at least partially to give up their rights to information privacy, because they will be compensated in return by a greater ability to pursue their economic interests - informational privacy, understood as data protection in the electronic environment, is not being considered by such stakeholders as a presupposition for an autonomous life. This can be considered as a tendency of current e-commerce, in contrast to our data privacy laws, and as a relativization of the privacy principle - and with it, of our basic (modem) ideas/ideal of an autonomous subject as well as of liberal democracy. We can also notice that there is a difference between:

In all three cases, however, is possible to undertake all kinds of "data mining" without any possibility of protecting a right to privacy (although savvy users may seek to protect their anonymity, e.g., by using software such as Anonymizer, Rewebber, or Steganos). And some authors such as Jeremy Rifkin consider the traditional concept of privacy as a relic " Rainer Kuhlen (2004, p. 188), who cites, among others, Hans-Jurgen Gartska. Informationelle Selbstsbestimmung and Datenschuti. Das Rechl auf Privatsphtire. In: Chrisliane Schulzki-Haddouti, Ed. Bitrgerrechte im Neiz. Bundeszentrale fur politische Bildung, Bonn 2003, 48-70. 12 Rainer Kuhlen (2004, p. 186-187) makes a difference between privacy as related to data protection and "Privalheit" as the right to informational autonomy, i.e., of choosing information according lo personal needs.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

42

The Individual and Privacy

42

RAFAF.I. CAPURRO

of bourgeois 19th century society.13 The concept of privacy is being replaced, or better: displaced, by the one of transparency. Be transparent*, and then you are a good citizen. The right to privacy is also turned into its opposite through a right to information, particularly since 9/11 in the US: the right to privacy collides now with the right to security. But "privacy," understood as a human right, cannot be conceived apart from its essential connection with Western economic and democratic ideas and ideals. Notwithstanding its being radically questioned, privacy is (legally) protected at least in Germany by the principle of informational autonomy (informationelle Selhsthestimmmg), which implies a right to data protection against asymmetric situations, as in the case of the electronic environment. But at the same time, the West is paradoxically approaching a less strict conception of privacy as an "intrinsic good" in order to see it as an "instrumental good. " l4 This situation may derive from the fact of the shift to what I call our being-in-the-networked-world. This docs not mean, 1 believe, that Western subjects arc now becoming "Japanizcd" - but that our view of autonomy is changing, as well as our concepts of being a "subject" and a "data subject" altogether. We now speak of "privacy" in reference to communities, not just to isolated subjects. I do not know if the concept of "community privacy" is a good philosophic and legal concept, but certainly it would be worth exploring it to sec if this is also the case when we deal with different views of community and privacy in the West and in Japan. "Denial of self" in Japan and in the West

As my Japanese colleagues make clear in their article in this volume, while we in the Western world think that the self is something to be protected because it is the most precious "thing" we have - in Japan, it makes no sense to protect something that has only a negative value. On the contrary, as we see there, this something called "self should be denied, not protected. From a Japanese perspective, according to the well-known author Hideo Kobayashi, the basis of criticism is the denial of self (miisi). For us in the West, by contrast, the self is the basis of criticism and 13 Jeremy Rifkin. The Age of Access. New York, Putnam 2000. 14 Fur a discussion of the distinction between intrinsic and instrumental goods in relation to Western justifications of privacy and information privacy rights, see Deborah Johnson, Computer Ethics. 3rd. cd. Upper Saddle River, New Jersey: Prentice-Hall, pp. 120f.

therefore it should be protected. This also includes the idea of self-criticism as a moral virtue, and, more basically, the idea that we should let others criticize us. (Indeed, there is in German culture the sensibility, "If you do not criticize me, you are not taking me seriously!") According to the French philosopher Emmanuel Levinas, contrary to the traditional idea that criticism and particularly moral judgement belong to the autonomous "ego," this view of criticism from the perspective of the other is in fact the basic moral situation.15 In this sense, Levinas' ethics is a heteronomic "ethics of the other" that goes beyond the traditional (Kantian) ethics based on the autonomous self. Indeed, we have the impression that if we suppress the subject we are unable to be critical.16 In fact, the German educational system, similarly to other Western systems, is oriented towards the formation of a critical self. We encourage our students to develop their own "personal" view of scientific and moral matters. We distinguish this critical formation from a mere "subjcctivist" one. To have just one's own opinion is not necessarily a sign of being a critical subject. This educational emphasis on developing a critical subjectivity reflects Kant's view of the subject as highly objectivist as it states boundaries to the metaphysical imagination of a subject that is uncritical with regard to the boundaries of his/her knowledge. These boundaries correspond to the "objects of experience" (GegenstSnde der Erfahrung). Critical thinking means, according to Kant, to be able to sec this basic limitation of human subjectivity as far as it deals with theoretical knowledge. In particular, the categorical imperative means that the subject freely accepts a practical or moral law which is "in" the subject but which at the same time compels the subject to act according to a universal measure beyond his/her individual or private interests. In this way - at least within Germany but increasingly within the European Community - the concept of "privacy" can be interpreted as not primarily a way of protecting an isolated individual with his/her subjective needs and 15 Emmanuel Levinas. Totalile el Infini. Esstii sur I'exteriorile. The Hague, Nijhoff 1961.

16 The word "criticism" comes from Greek krisis, which means to distinguish, to separate, to select - but also to fight or to take a measure by comparing each other in a (sport) competition. This concept is basic in different areas such as politics, law. medicine, the military, sports and. of course, in science and philosophy. In German we use the word Urleil, which corresponds to English "judgement." In our religious tradition, God as the supreme sovereign is the origin of the law and therefore the one who states the (eternal and natural) law at the beginning and who judges at the end of time ("final judgement").

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

43

INTERCLLTURAL PERSPECTIVES ON PRIVACY

43

preferences, but as concerning this individual as far as he/she "rc-prcscnts" humanity. While for Japanese "denial of self means "approval of the group" or, perhaps more basically, to give rise to that which is "in between" us, i.e., nothingness - in the German case (at least as far as we are Kantians), the "denial of self means denial of the individual preferences in favour of a universal interest. We may even say that prima facie the categorical imperative looks like a Western version of "denial of self." On the other hand, there is a much more trivial interpretation of "privacy," which indeed collides with the Japanese view: this is the idea of protecting the self as a bearer of individual preferences and beliefs as well as a representative of humanity. We could call this idea the individualistic foundation of privacy, in contrast with the Kantian version, a universalistic one, as discussed above. In both cases we have to do with the concept of respect that plays an important role in everyday relations between human beings. This concept plays also an important role in the constitution of Japanese subjectivity and correspondingly in the notion of privacy.17 But what is important from a Japanese perspective is to protect the Seken rules not the "privacy" of the individual with his/her subjective preferences and beliefs or of his/her-self as representing humanity. The key difference with regard to the Western conceptions of privacy seems to be that the self within Seken is something that should be denied, not protected while in the West the self is the basis for critical thinking and moral action. When speaking about protection of privacy from a Japanese perspective we are not addressing the moral issue from a Seken but just from a Shakai perspective. But this contrast in terms of positive and negative evaluations of "self" gets even more complicated: the conception of the self as something to be denied echoes in some regards the psychoanalytic discovery that we are not masters in our own house, as critically analyzed by Bin Kimura.

17 We have different forms of expressing this respect in family relations as well as in other situations in which we live. This is even more complicated as customs are different for instance in Germany. France, Italy, Great Britain, to mention just some European nations, and of course, in other non-European cultures. The signs of respeci are also closely related to language. We have in German as well as in oilier Western languages, the difference between "Du" or the familiar "you" and "Sie" as the polite form for addressing another person. In Japanese the different possibilities for addressing another person are more complex.

Privacy in cyberspace: Are we masters in our own bouse?

Our present discussion on privacy within the context of the digital "infosphere" (L. Floridi)18 includes the danger that both spheres, the private and the public one, disappear. The question is, of course, which are the (cultural) alternatives to this situation or how different cultural traditions will react practically and pragmatically, i.e., by ways of networking new and old meanings, which is no more and no less as what we are trying to do with this common reflection. What Tamura says about the Japanese attitude towards cyberspace as a kind of private sphere (e.g., in the example of web diaries in which personal secrets are intentionally revealed) is very interesting indeed. In the West we have, I believe, the feeling that a personal website is an opportunity for making public some (private) aspects of one's life. Weblogs arc very popular in the West, too, and they arc viewed, I believe, also as a kind of making public one's feelings and ideas. This could be interpreted as a "post-modern" Western reaction against a bourgeois view of the private sphere as something that should not be publicly disclosed and as the "container" of whatever we might be ashamed about in the event others were to reveal these aspects of our lives without our permission. I wonder whether the Japanese feelings about cyberspace as part of the private sphere are related to the fact that, as Tamura himself remarks, the Japanese society is not individualistic? Cyberspace is just an enlargement of the space between us (Aiela), to use Bin Kimura's words a space that is "private," but in a collective, nonindividualist way. Another reason for this perception could be that cyberspace is viewed primarily as a Japanese cyberspace at least as far as wcblogs arc in Japanese and therefore normally not accessible to strangers - the number of netizens who can understand Japanese being probably very small. But, in fact, the relations between cyberspace and (old) mass media in Japan seem to be more complicated. According to my colleague [N], Japanese weblogs are considered to be media or communication tools for promoting individualism. But at the same time with regard to topics and readers "the Japanese weblogs are the media reflecting the values and meanings of Seken." In other words, "Japanese weblogs are a continuation of private diary opened to the public (or people in Seken) in the Internet."19 18 Luciano Floridi. On the Intrinsic Value of Information Objects and the Infosphere. Ethics and Information Technology, Volume 4, Issue 4, 2002, pp. 287-304. 19 Personal e-mail from Prof. Nakada, April 3, 2005.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

44

The Individual and Privacy

44

RAFAF.I. CAPURRO

Moreover, both common definitions of privacy as "the right to be let alone" and "the right to control one's personal information" are indeed subject to different interpretations according to different cultural backgrounds. In the West, these views are based on the opposition between the "public" and the "private," while in Japan the question of "privacy invasion" concerns the sphere of mass media, and particularly of newspapers. It is a problem for newspapers regarding how far they "invade" privacy, which is no less than what people regard normally in their Seken perspective as already public or ordinary life or common sense, but not as something to be exposed to the kind of "publicity" as created by the mass media. So the "crisis of privacy issue" is viewed, logically, as a Shakai issue. This implies that Japanese do not identify cyberspace with mass media, although there is a strong tendency of the latter to "invade" cyberspace by giving users the impression that this is just another channel to receive (and not to exchange) information and that they should therefore remain as passive or at least as dependent of the senders as they were in the past. Nothing is more dangerous for mass media than the opportunity given to users or receivers to become senders. Viewed as an interactive space, cyberspace is then, particularly for Japanese, an enlargement of their ordinary Seken in-between. According to my colleague [N], what is a threat for the (Japanese) in-between "is the mistaken belief that we Japanese can solve fundamental social problems, including problems of privacy, through the plans or thoughts based on Shakai as well as the mistaken belief that Japanese Watakusi is the same thing as Western individualism."20 According to Bin Kimura, Japanese culture makes a strong difference between the "private" sphere within one's own house and the "public" sphere outside the house. But as we sec in the article by Nakada and Tamura, Watakusi is indeed not the same thing as Western individualism. Is this difference only a correlation and not, as in the West, an opposition? I mean, do Japanese consider their public life as a kind of "big family" within which there is the sphere of the "small family?" This would correspond in some way to the description given by Hannah Arendt of the relation between the public and the private an ancient Greece and Rome.21 But according to my Japanese colleague, contradictory views of "Seken, Shakai, Ikai (and probably Ohyake and 20

Ibid.

-' Hannah Arendt. Vila acliva, Miinchen, Piper 1981 (English edition: The Human Condition. Chicago & London. The University of Chicago Press 1958)

Watakusi)" can be found everywhere in Japanese mass media. He writes: It is very popular that while protection of privacy and human rights are reported somewhere in a newspaper, moderate or dramatic (i.e., disguised as a tragedy) violations of privacy can be found somewhere in the same newspaper. Or, likewise, a homicide is dealt with in different ways by the same TV channel; formal portrayals reflect the values of Shakai, and "popular" portrayals reflect values of Seken and sometimes part of values of Ikai?2 Our Western media are, indeed, no less contradictory with regard to, say, legal and moral norms, religious beliefs, and self-given codes of ethics. But these contradictions within both Western and the Japanese cultures, cannot be simply correlated or, even worse, identified. As my colleague [N] remarks, "both common definitions of privacy as 'the right to be left alone' and 'the right to control one's personal information' are indeed subject to different interpretation according to different cultural backgrounds. In the West these views are based on the opposition between the 'public' and the 'private' while in Japan the questions of 'privacy' or 'privacy' invasion are more complicated because of the influence of the plurality of Seken, Shakai, Ikai or the plurality of the OhyakeWatakusi axis and the private-public axis. Sometimes the problems of privacy belong to Shakai and sometimes they belong to Seken."23 As well, according to Bin Kimura, Japanese subjectivity is a weak one, i.e., it rests on the in-between (Aida) and not on a strong "ego" as in the West. He concludes from this that when they leave their homes, Japanese persons thus need some kind of mask or ritual Seken (though I do not know if he uses this word as such) in order not to "lose their faces." According to my colleague [N], for Japanese people, "the right to be let alone" means different things according to different frameworks: "in cyberspace, there sometimes seems to be a kind of resistance against the confusion that might be brought about by transferring some contents in a certain area with a certain framework into another area with a different framework. Just as Bin Kimura suggests, most of Japanese feel that they need different 'faces' in different occasions, even in cyberspace."24 In the West, in contrast, personal data are viewed as something permanent that should be basically protected independently of the framework in which they are used. One important instrument for this ibid. Personal e-mail from Prof. Nakada, April 4. 2005. 24 Ibid. 22

23

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

45

INTERCLLTURAL PERSPECTIVES ON PRIVACY

45

protection is the principle of informed consent. The concept of person, which is derived from the Latin persona, i.e., mask or character, has a long and rich semantic tradition. Nevertheless, modern information technology has brought about different kinds of (digital) identities and interfaces. It is becoming more and more difficult to define what kind of "personal data" and in which situations should be protected. We arc becoming, as 1 mentioned above, networked individualities. All this brings us to the question of what do we mean in different cultures by "shame" (aidos in Greek) - which was a central concept of ancient Greek society. It is useful to remember that Sigmund Freud said that due to the realm of the unconscious in our lives, the "ego" (Icli) is "not even master in his own house" (daft es nicht einmal Herr ist im eigenen House), but remains dependent on "spare messages" coming from unconscious processes in our spiritual life.25 Freud's remark questions a very popular expression in Western languages like in German: "Jeder ist Herr in seinem Haus" or in French: "etre mattre chez soi" or in English: "a man is king in his own home" or "a man's house is his castle." We use to say that it is not possible to serve two masters (Niemand kann zwei Herren dienen). Freud's remark calls for a more detailed discussion on the question of the places where we live in or on our ethos. The Greek heritage provided us with the dichotomy between the physical and the metaphysical world that we translated into a secularized language by giving to human beings an absolute priority with regard to all other things. Since then, and particularly since Kant, we live in the house of "human dignity" as well as in the physical world, the only bridge between these two houses being the categorical imperative.26 In light of this complex genealogy, we have to ask, where do we, as Europeans, live today? I would say that we live in a big European house or a European Ohyake, or a public sphere, but we do not think that lVataku.fi things are per se bad things, or somehow less worthy than the public ones. Our only problem is

that we do not know exactly what to consider as public or as private, in other words, our house is ambiguous and the spirit of the time or Zeitgeist seems to be such that this situation is not just negative but that it allows us to be more flexible - not only with regard to how we live within this house, with its complex history and architecture, but also with regard to the ways we behave when we are guests in, for instance, a Japanese house or in a US house. Even so, it docs seem clear that in Japan (and China) the views about private rights and public policy may be even more community oriented than in Europe. Conclusion To summarize some the most important points of contrast and similarity between Western and Japanese views on privacy is not an easy task not only because this intcrcultural dialogue is at its beginning,27 but also because comparing apparently similar or dissimilar concepts that were coined in different historical and cultural settings is dangerous in at least two ways. One danger is that we remain satisfied with merely juxtaposing such concepts; the second is that we thereby remain in such an early stage of an intercultural dialogue, defined by what may only look like a common ground or an incompatible view - a common ground or incompatible view that in light of further dialogue, however, will dissolve into far more complex inter-relationships, just as we have seen here. Nevertheless, such dialogues must begin somewhere - and so here is my overview: 1. We, Westerners, or at least some of us, still live in the house of Platonic metaphysics or in its derivatives, such as the Kantian one, with their "two worlds" metaphor. As my Japanese colleagues argue, however, Japanese people (or at least some of them) live in a three-fold world. 2. Some Westerners believe in a Christian theology, which introduces the personified idea of the evil with its own house, Hell. Ikaih not the same but it creates a similar polarization with our normal ethos or morality (as parallel with Japanese Seken).

25 Sigmund Kreud. Varlesungen air Fjnfuhrung in die Psychoanalyse, Frankfurt a.M., Suhrkamp Verlag, 1989, Vol. I, p. 284. 26 27 But, if one takes a look at the Christian heritage, we Masahiko Mizutani, James Dorsey, James H. Moor. find behind this dichotomy, which corresponds in some way The Internet and Japanese conception of privacy. In: Ethics to the dichotomy between "this world" and "the coming and Information Technology 6(2): 121-128, 2004. It is not world," a very complex mythical morphology. The question quite appropriate to say that there is a general concept of of evil was secularized during ihe Enlightenment and beprivacy (or whatever) and that each culture "will develop came a question of the evil in the world as caused by a their own richer conceptions of privacy." Where does this social and economic system, namely capitalism, that allows general concept come from? In arguing like this we may be the exploitation of humans for the sake of profit (Karl missing the point and giving up the opportunity to "change Marx). Since then we live in the "first," the "third," and the place of thinking" (Francois Jullien. Du "temps". Eleeven the "fourth" world. ments d'une philosophic du vivrc. Paris, Grassel 2001).

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

46

The Individual and Privacy

46

RAFAF.I, CAPURRO

3. Since the Enlightenment, Western morality is based on the idea of the individual as an autonomous being, having dignity (JVurde), i.e., "representing" humanity in his Person (die Menschhelt in seiner Person) as stressed by Kant in The Critique of Practical Reason (Kritik der praktischen Vernunft, A 155). According to Kant, human dignity, as implying freedom and autonomy, is grounded on our belonging to the noumenal world and not just to (deterministic but phenomenal) nature. This dwelling in our "personal" selves is what we mean when we say that our "privacy" should be protected. It is the basis of our democratic system. 4. Given the fact that in Japanese Buddhist traditions the "self" is "nothing" (musi) - this idea of Western subjectivity, especially with all its political and scientific-technical ramifications, is difficult to understand. The moral, social and political questions arising from it, and particularly the notion of privacy, belong to Shakai. Thus, Japanese and Western morality, Seken and Shakai, arc not necessarily entirely incompatible or contradictory - but with regard to privacy, it seems as if opposite or contrary perspectives are at stake. 5. While Japanese morality stresses the value of the community and the dimension of "in-between" (Aida) human beings, Westerners (at least some of us) underline individualism and autonomy. As a result, the Japanese conception of privacy, if we want to use this Shakai term, is communityoriented and corresponds in some way to our ancient Greek (and Roman) ethos tradition, as analyzed by Hannah Arendt. Since Modernity, however, Westerners live in a dichotomy of the private and the public sphere that, as my Japanese colleagues argue, only loosely parallels the Japanese distinction between Ohyake (public) and Watakusi (private). In particular, for Japanese, private things arc less worthy than public things. This is related to the negation of the self (musi). 6. The concept of privacy as "the right to control one's personal information" arises in Japan, on the one hand, with the arrival of the information society and particularly with the "invasion" of privacy by some mass media. But, on the other hand, as our Japanese colleague [T] has shown, Japanese newspapers have been reporting about privacy issues as news, i.e., trying to protect privacy by following the values of Shakai. Japanese society seems to have imported only some aspects of the Western concept of privacy and particularly not the "individualistic" perspective that ascribes privacy to the dignity of the person. This only partial importation is probably the reason

7.

8.

9.

10.

for the ambivalent attitude towards the question of privacy not only with regard to mass media, but also with regard to the Internet as well and of the Japanese mass media themselves. This ambivalence reflects the different places in which Japanese dwell, namely, Seken, Shakai, and Ikai, as well as Watakusi and Ohyake. There seem to be fundamental differences between the Japanese and Western culture(s) regarding the concepts of autonomy and privacy. Our dichotomies (public/private, public/privacy, individual/society, "noumenal"/material worlds, dignity/value etc.) do not correspond to Japanese trichotomy of Shakai, Seken and Ikai us well as to some key insights on the self, the community, and the "in-between." With the advent of psychoanalysis, i.e., with Sigmund Freud's discovery of the unconscious, as well as with today's brain research, the Western concept of the "Ego" has been radically criticized. There is an ongoing debate on the concepts of, for instance, autonomy and free will as well as a tendency to dwell, so to speak, only in our "natural" house. At the same time, all our official political basic statements, for instance in our constitutions, stress the traditional view of human dignity and its derivatives, on which the idea of privacy (and private!) is grounded. We Westerners seem to live simultaneously in different worlds according to different traditions that partly overlap and partly contradict themselves. This makes the dialogue with the Japanese culture even more difficult because what they import or perceive as Shakai concerns only some of these stories of our Western houses. This is particularly the case when we take into account the differences between Europe which again is an oversimplification! - and the United States. We have partly contradictory traditions and stories within our own European housc(s). To "protect privacy" may mean, in the US, particularly since 9/11 and with a long and strong individualistic tradition, something very different as, say, in Germany or in other countries. In a very general way we can say that the concept of privacy in the West is oriented towards the individual, while Eastern countries - and also other cultures like the African ones, for instance stress the concept of community and give privacy at least partly a negative connotation. In case they tackle this question in a more or less positive sense, it seems that it loses its strong roots in Western anthropology and becomes a practical question of, say, how to deal or how to protect personal (digital) data in the information society.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

INTERCULTURAL PERSPECTIVES ON PRIVACY A discussion of these deeper roots of the question of privacy belongs to an intcrcultural dialogue that aims not only at solving common practical problems when we use information technology, but also at trying to understand how we became who we are and what is going on with our selves and the houses in which we live in this new digital and global environment. Beyond the current discussion, this further dialogue should include concern with particularly two topics: (1) The invasion of the public sphere by the private one. This is very paradoxical but we need to protect the public sphere no less than the private one, particularly in the Western countries (in all of them?), e.g., when people use their cellular phones everywhere and speak loudly about their very private affairs. (2) The question of the body, particularly as it is the object of digitization in its different parts. This means that what is originally most private, i.e., our own body, is becoming more and more the object of digital analysis. What was philosophically perceived as a unity in the Middle Ages - anima forma corpora, i.e., the soul as form of the body - is now becoming more and more digitally fragmented. Privacy is not just related to the physical but to the physical body as digitally grasped. In this case, the question of privacy understood as data protection is expanded from the idea of digital data about the person to the body conceived as an information system. This conception then leads to further questions of security and identification concerning all kinds of data, such as genetic data, biometric data etc.28 As I hope these questions suggest, our dialogues have only just begun. References H. Arendt. Vita actira, Mflnchen, Piper 1981 (English edition: The Human Condition. The University of Chicago Press, Chicago & London, 1958). R. Capurro, J. Frithbaucr, T. Hausmanningcr (Eds.). Localizing the Internet. Ethical Issues in Intcrcultural Perspective. Munich h'iur 2006 (in print).

28 European Group on Ethics in Science and New Technologies, Opinion No. 20 "Ethical Aspects of ICT Implants in the Human Body" Brussels 2005. In: http:// europa.eu.inl/comm/european_group_elhics/index_en.hlm

47 47

R. Descartes. In Ocuvrcs, editor, Mcditationcs dc prima philosophia. Ch. Adam & P. Tannery, Vrin, Paris, 1996, Vol. 7. European Group on Ethics in Science and New Technologies. Opinion No. 20 "Ethical Aspects of ICT Implants in the Human Body" Brussels, 2005. In: lutp://europa.eu.mt/comm/european_group_eihics/index_en.hun. L. Floridi. On the Intrinsic Value of Information Objects and the Infosphere. Ethics A Information Technology, 4(4): 287-304, 2002. M. Foucault. In L.H. Martin, H. Gutman and P.H. Hutton, editors, Technologies of the Self. cd. L.H. Martin ct al. The University of Massachusetts Press. Amherst, 1988. S. Freud. Vorlesungen zur Emfuhnmg in die Psychoanalyse. Suhrkamp Verlag, Frankfurt a. M., 1989, Vol. I. H. Gartska. Informaiionelle Selbblsbesiimmung und Datenschutz. Das Recht auf Privatsphare. In Christiane Schulzki-Haddouti, editor, Burgerrechte im Netz, 48-70. Bundeszenlrale fur politische Bildung, Bonn, 2003. M. Heidegger, Platans Lehre von der Wahrkeit. Mil einem Brief fiber den "Humanisnms". 2nd ed.Francke Verlag, Bern, 1954. M. Heidegger, Sein imdZeit. 13th ed.Tflbingen. Niemeyer, 1976. F. Jullicn. Dn "temps ". Elements d'une philosophic du rivre. Grasset, Paris, 2001. I. Kant. Grundlcgung zur Mctaphysik dcr Sittcn. In W. Wcischcdcl, editor, Wcrkc. Wisscnschaftlichc Buchgesellschaft, Darmstadt, 1964, Vol. 7. I. Kant. Bcantwortung dcr Fragc: Was ist Aufklarung? In W. Weischedel, editor, Werke. Wissenschaftliche Buchgesellschafl, Darmstadt, 1964, Vol. 9. 1. Kant. Krtik der praktischen Vernunft. In W. Weischendel, editor. Werke. Wissenschaftliche Buchgesellschafl, Darmstadt, 1964, Vol. 7. B. Kimura. Hito to hito to no aida. Tokyo. 1972. German translation by E. Weinmayr: Zwischen Mensch und Memch. Strukturen japanischer Subjektivitat. Wissenschaftliche Buchgesellschaft, Darmstadt, 1995. R. Kuhlen, Infarmationsetliik. Umgang mil Wissen und Information in eleklronischen Raumen. UVK Vcrlagsgcsellschaft, Konstanz, 2004. E. Lcvinas, Tolalile et Infini. Essai sur I'exteriorite. Nijhoff. The Hague, 1961. M. Mizutani, J. Dorsey and J.H. Moor. The Internet and Japanese Conception of Privacy. Ethics and Information Technology, 6 121-128, 2004. J. RitVin, The Age of Access. Putnam, New York, 2000.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

[4] Japanese conceptions of privacy: An intercultural perspective Makoto Nakada1 and Takanori Tamura2

'University oj Tsukuba, 1-18-28 Ninomiya. Tsukuba cily. Ibaraki Pref.. Japan. 305-0051 University of Tsukuba. 204, 4-14-5 Azuma, Tsukuba city. Ibaraki Pref., Japan, 305-0031 E-mail: nakatlumakototfiinwl. biglobe.ne.jp

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

2

Abstract. This paper deals with intercultural aspects of privacy, particularly with regard to important differences between Japanese and the Western views. This paper is based on our discussions with Rafael Capurro - a dialogue now represented by two separate but closely interrelated articles. The companion paper is broadly focused on the cultural and historical backgrounds of the concepts of privacy and individualism in "Western" worlds; our main theme focuses on different concepts of privacy in Japan and their sources in related aspects of Japanese culture. The interrelationship between our two papers is apparent in our taking up identical or similar topics in each paper. Reading our two papers in conjunction with each other will bring about deeper and broader insights into the diverse values and worldviews of Japan and Western cultures that underlie concepts of privacy that at a surface level appear to be similar. Key words: autonomy, culture, denial of subjectivity, Ikai, Japan, Musi, Privacy, Seken, self, Shakai Contradictory Japanese attitudes towards privacy Japan is a complicated country - even for Japanese people themselves. Indeed, their lives are full of contradictory matters, including the problems related to privacy. People want to be free and pay attention to a 'right to control one's personal information,' but at the same time they want to get 'true' friends by sharing their secret information concerning their private, personal experience. According to our recent research data (conducted in Japan, 2005), 70.6% of the respondents said 'yes' to the question, "Do you want to get 'true' friends by expressing or sharing secret information concerning your or your friends' private or personal experience such as disappointments, moments of shame, or guilty conscience?" While 75.0% of the respondents of the same research said that media should take care not to invade the privacy of the victims of crime, 66.8% said that personal information on such victims, including their occupation, human relations, personality, life history, etc., are needed in order to know the 'deep' meanings of the crime.1 In order to understand these contradictions, we propose here a framework that demarcates a plurality in the worldview(s) of Japanese people. In our view, Japanese people's otherwise apparently contradictory attitudes towards privacy and individualism cannot be separated from the plurality of their worldvicw(s). In our past research and related studies on this pluFor more information on this research, see note 12, below.

rality, we have found a dichotomy between Seken and Shakai in Japanese minds. Seken is the aspect of the world that consists of traditional and indigenous worldviews or ways of thinking and feeling. Shakai is a different aspect of the world that includes modernized worldviews and ways of thinking influenced in many respects by the thoughts and systems imported from 'Western' countries. We believe that this finding of a dichotomy of Seken and Shakai provides us with deep insights into Japanese minds and that the contradictions mentioned above can be at least partly explained by this dichotomy. But at the same time, we also feel that we have to add another or the third aspect to this dualism of worldviews, if we want to understand the apparently contradictory features of Japanese society and culture more deeply and broadly. Thus we want to add the concept of Ikai to our previous dichotomy of Seken and Shakai, thus transforming it into a new trichotomy of Seken, Shakai and Ikai. Ikai is the world of 'the othcr(s)', i.e. the hidden or forgotten meanings or values in Seken or Shakai as normal aspects of the world; Ikai is the aspect of the world from which evils, disasters, crimes, and impurity - along with freedom and the sources of energy related to art and spiritual meanings - seem to emerge. While our research has confirmed the dualism of Seken and Shakai in many ways, the conccpt(s) of Ikai has not yet been confirmed by research. But at least for the Japanese scholars who have sympathetically documented the hidden and forgotten part of our world - such as Yoshihiko Amino, Masao Yamaguchi, Yujiro

The Individual and Privacy

28

MAKOTO NAKADA AND TAKANORI TAMURA

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Nakamura and Bin Kimura the concept(s) of Ikai (even if referred to in other terms as Mum) are crucial to looking into Japanese minds, culture and society most deeply. Hence we believe that by adding the conccpt(s) of Ikai to the dichotomy of Seken and Shakai, we can more deeply and clearly grasp the meanings behind the contradictions noted above. A homicide in Tutiura

The starting point of this paper, and of our discussions with Prof. Capurro, is our dialogue about diverse interpretations of a homicide in Tutiura in Japan. More precisely, we thought that the ways of portraying this homicide in a respected Japanese newspaper reflect important differences between Japan and "Western" worlds regarding concepts and evaluations of "privacy". Hence we start with a possible Japanese interpretation of a typical homicide news report in Japan. It seems that we Japanese have a different scheme for understanding privacy than in Western countries. We should analyze these cultural backgrounds more deeply if we want to understand each other better. We also need to know ourselves more deeply because some important aspects of our social life still remain unclear for ourselves, including the contradictions shown above. We were surprised by a newspaper report about a homicide that happened in October, 2004, in Tutiura, a city near Tsukuba in Ibaraki Prefecture. This homicide happened in a family. The 28-year-old jobless son of a certain family killed his parents and his elder sister. What surprised us was the public portrayal in Asahi Shimbun (viewed as a quality newspaper in Japan) of what we might otherwise expect to be private details about the victim's family. This portrayal included photos of the victims, the floor plan of the house, an illustration of the place where the homicide happened, personal history (job, education, marriage and even aims of life), a map of the surroundings, a report on the human relations within the family, and interviews with neighbours and family friends. We believe that publishing such private details in a respected newspaper would be unacceptable for Western people. But at least most of the nearly 50 students in the class of one of the authors on Information and Media Studies seem to believe that this kind of information is very important in order to know the 'truth' of this case. Some students explicitly said that this kind of news report provides them with frameworks through which they can share certain aspects of the meaning of this tragedy.2 2 We talked about this homicide several times in October, 2004, in the authors (Nakada's) class.

We believe our students' attitudes to be representative of Japanese attitudes more broadly. According to our tentative interpretation, where Seken is an old and indigenous aspect of the world for Japanese people - some important matters like disasters, crime, war, and illness are thought to come from outside Seken. Seken seems to be derived from the traditional Japanese culture, including the values influenced by Shinto, Buddhism, Confucianism and the relationships between people and nature as well as natural disasters. Outside Seken is not Shakai, i.e. the modernized aspects of social life, but Ikai (i means 'different' and kai means 'world,' so Ikai means 'different world,' or different world from Seken as the normal world.3) This is a tentative interpretation, but most of my students agree that this tentative interpretation gives them a way of understanding the 'true' meanings of things happening around them, including the homicide in Tutiura. We believe that Japanese people live in a world consisting of a plurality of Seken, Shakai, and Ikai, but some of the important meanings and values related to this pluralism seem to be less apparent to them. This appears to be partly due to the influence of Shakai. Since the end of Tokugawa era (16031868), Japan has tried to build new society and culture mainly related to Shakai as the world full of modern and imported meanings and views. Shakai has become the 'formally' accepted world, at least for the people with modern and 'Western' minds since 1868. Under the influence of State-related meanings, some fundamental aspects of Seken or Ikai have become less apparent to Japanese people. But on the other hand, 5e£«n-related meanings and /taw-related meanings still remain somewhere in people's minds. Seken especially seems to continue to occupy an important place in people's minds as the world with the meanings and values that are explicitly or implicitly accepted and 'informally' approved by the majority of 'ordinary' Japanese people - even after

3 Sec: Makoto Tamura Takanori, Leslie Tkach-Kawasaki, and Toshikaoi Litaka. Dues Old Japan Determine New Japan? The Relationship between Seken, the Internet, and Political Consciousness in Japan. In F. Sudweeks. C. Ess (Eds). Fourth international conference on cultural attitudes towards technology and communication 2004. Murdoch University, Australia, pp. 143-157; Makoto Nakada. The Interne! within Seken as Old and Indigenous World of Meaning in Japan. In Johannes Frflhbaucr, Rafael Capurro, Thomas Hausmanninger (Eds.). Localizing the Internet. Ethical Issues in Inlercullural Perspective. Munich. Fink 2005. Prof. Nakada's views regarding Ikai arc partly dependent upon Yoshihiko Amino and Masao Yamaguchi.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

The Individual and Privacy

51

JAPANESE CONCEPTIONS OK PRIVACY

29

the import of Shakai. In this sense, the dichotomy of Seken and Shakai represents the normal and acceptable world for the majority of Japanese people. But the presence of the normal and acceptable world means at the same time the presence of the oppressed and rejected world of meanings (just as with the world of Freud's id and the Greek god Dionysus, i.e., the unaccepted things). According to Japanese anthropologist Masao Yamaguchi,4 Japanese Noh plays symbolize such unaccepted meanings, including tragic memories, defeated rebels, death or ghosts. These unaccepted things belong to somewhere outside the 'normal' or everyday life. But sometimes these unaccepted things 'encounter' the normal world through rituals, ceremonies, dramas, and symbolic or metaphorical expression like poetry. Yoshihiko Amino, a Japanese historian, insists that the sphere of these unaccepted things or meanings - which he calls "Muen" - once occupied the broader area of the world for Japanese people. We believe that the trichotomy of Seken (aspects of shared meanings including traditional worldviews, ethics, common senses, virtue), Shakai (aspects of modernized worldviews), and Ikai (aspects of unaccepted meanings) is still ambiguous - but at the same time we also believe that this trichotomy is very useful in trying to understand the contradictory attitudes regarding privacy mentioned above as well as the meanings of homicide in Tutiura. In particular, just as in Noh or Kabuki drama, where we understand the hidden meanings of historical events as rooted in Ikai so we think that Japanese people turn to Ikai to understand the meanings of tragic phenomena such as the homicide in Tutiura. So: while the standpoint of Shakai would consider publishing personal information about the Tutiura murder victims to be an invasion of privacy and violation of human rights, Prom the standpoint of the traditional values and beliefs of Seken, this publication at the same time functions as a warning against the breakdown of moral and ethics a breakdown, Anally, that is rooted in Ikai as the domain of such betrayal. In this way, what might seem from Western perspectives to be the media's invasion into 'privacy' has a complex - but, given the functions and characteristics of Shakai, Seken, and Ikai, coherent - set of meanings for Japanese. Musi, Seken, Shakai and Ikai

The Tutiura example thus nicely illustrates our claim that we Japanese live in different aspects of the world (Seken, Shakai, and Ikai) simultaneously. Moreover, 4 Yamaguchi, Masao. Bunka no shigaku I on 17 August 2008. Vogel, F E (2003), 'The public and private in Saudi Arabia: restrictions on the powers of committees for ordering the good and forbidding the evil - Part II: Islamic law: boundaries and rights', Social research, Fall, 2003 accessed at

Wolpe, P R (2005), 'Religious responses to Neuroscientific questions', in Hies, J (ed.) Neuroethics: Defining the Issues in Theory, Practice and Policy (Oxford: Oxford University Press). Yao-Huai, L (2005), 'Privacy and data privacy issues in contemporary China', 7 Ethics and Information Technology, 7-15. Zittrain, J and Palfrey, J (2008), 'Internet Filtering: The Politics and Mechanisms of Control' in Deibert, R, Palfrey, J, Rohozinski, R and Zittrain, J (eds.), Access Denied: The Practice and Policy of Global Internet Filtering, (Cambridge, Massachusetts: MIT Press).

22

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Part II The Space Dimensions in Privacy Perspectives and Methodologies: From Early Days in Sociology through Social Psychology to the Socio-Legal Approach and the Cognitive Sciences in the Twenty-First Century

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

[6] THE SOCIOLOGY OF SECRECY AND OF SECRET SOCIETIES1 PROFESSOR DR. GEORG SIMMEL Berlin

All relationships of people to each other rest, as a matter of course, upon the precondition that they know something about each other. The merchant knows that his correspondent wants to buy at the lowest price and to sell at the highest price. The teacher knows that he may credit to the pupil a certain quality and quantity of information. Within each social stratum the individual knows approximately what measure of culture he has to presuppose in each other individual. In all relationships of a personally differentiated sort there develop, as we may affirm with obvious reservations, intensity and shading in the degree in which each unit reveals himself to the other through word and deed. How much error and sheer prejudice may lurk in all this knowing is immaterial. Just as our apprehension of external nature, along with its elusions and its inaccuracies, still attains that degree of truth which is essential for the life and progress of our species, so each knows the other with whom he has to do, in a rough and ready way, to the degree necessary in order that the needed kinds of intercourse may proceed. That we shall know with whom we have to do, is the first precondition of having anything to do with another. The customary reciprocal presenta1

Translated by Albion W. Small.

84

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

442

THE AMERICAN JOURNAL OF SOCIOLOGY

tion, in the case of any somewhat protracted conversation, or in the case of contact upon the same social plane, although at first sight an empty form, is an excellent symbol of that reciprocal apprehension which is the presumption of every social relationship. The fact is variously concealed from consciousness, because, in the case of a very large number of relationships, only the quite typical tendencies and qualities need to be reciprocally recognized. Their necessity is usually observed only when they happen to be wanted. It would be a profitable scientific labor to investigate the sort and degree of reciprocal apprehension which is needed for the various relationships between human beings. It would be worth while to know how the general psychological presumptions with which each approaches each are interwoven with the special experiences with reference to the individual who is in juxtaposition with us; how in many ranges of association the reciprocal apprehension does or does not need to be equal, or may or may not be permitted to be equal; how conventional relationships are determined in their development only through that reciprocal or unilateral knowledge developing with reference to the other party. The investigation should finally proceed in the opposite direction; that is, it should inquire how our objectively psychological picture of others is influenced by the real relationships of practice and of sentiment between us. This latter problem by no means has reference to falsification. On the contrary, in a quite legitimate fashion, the theoretical conception of a given individual varies with the standpoint from which it is formed, which standpoint is given by the total relationship of the knower to the known. Since one never can absolutely know another, as this would mean knowledge of every particular thought and feeling; since we must rather form a conception of a personal unity out of the fragments of another person in which alone he is accessible to us, the unity so formed necessarily depends upon that portion of the other which our standpoint toward him permits us to see. These differences, however, by no means spring merely from differences in the quantity of the apprehension. No psychological knowledge is a mere mechanical echo of its object. It is

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

85 443

rather, like knowledge of external nature, dependent upon the forms that the knowing mind brings to it, and in which it takes up the data. When we are concerned with apprehension of individual by individual, these forms are individually differentiated in a very high degree. They do not arrive at the scientific generality and supersubjective conclusiveness which are attainable in our knowledge of external nature, and of the typically individual psychic processes. If A has a different conception of M from that of B, this does not necessarily mean incompleteness or deception. On the contrary, the personality of A and the total circumstances of his relation to M being what they are, his picture of M is for him true, while for B a picture differing somewhat in its content may likewise be true. It is by no means correct to say ihat, over and above these two pictures, there is the objectively correct apprehension of M, by which the two are to be corrected according to the measure of their agreement with it. Rather is the ideal truth which, to be sure, the actual picture of M in the conception of A approaches only asymptotically, that is as ideal, something different from that of B. It contains, as integrating organizing precondition, the psychical peculiarity of A and the special relationship into which A and M are brought, by virtue of their characteristics and their fortunes. Every relationship between persons causes a picture of each to take form in the mind of the other, and this picture evidently is in reciprocal relationship with that personal relationship. While this latter constitutes the presupposition, on the basis of which the conceptions each of the other take shape so and so, and with reference to which these conceptions possess actual truth for the given case, on the other hand the actual reciprocity of the individuals is based upon the picture which they derive of each other. Here we have one of the deep circuits of the intellectual life, inasmuch as one element presupposes a second, but the second presupposes the first. While this is a fallacy within narrow ranges, and thus makes the whole involved intellectual process unreliable, in more general and fundamental application it is the unavoidable expression of the unity in which these two elements coalesce, and which cannot be expressed in our forms of thought except as a building

The Individual and Privacy

86

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

444

THE AMERICAN JOURNAL OF SOCIOLOGY

of the first upon the second, and at the same time of the second upon the first. Accordingly, our situations develop themselves upon the basis of a reciprocal knowledge of each other, and this knowledge upon the basis of actual situations, both inextricably interwoven, and, through their alternations within the reciprocal sociological process, designating the latter as one of the points at which reality and idea make their mysterious unity empirically perceptible. In the presence of the total reality upon which our conduct is founded, our knowledge is characterized by peculiar limitations and aberrations. We cannot say in principle that "error is life and knowledge is death," because a being involved in persistent errors would continually act wide of the purpose, and would thus inevitably perish. At the same time, in view of our accidental and defective adaptations to our life-conditions, there is no doubt that we cherish not only so much truth, but also so much nescience, and attain to so much error as is useful for our practical purposes. We may call to mind in this connection the vast sums of human knowledge that modify human life, which, however, are overlooked or disregarded if the total cultural situation does not make these modifications possible and useful. At the other extreme, we may refer to the Lebensliige of the individual, so often in need of illusion as to his powers and even as to his feelings, of superstition with reference to God as well as men, in order to sustain himself in his being and in his potentialities. In this psycho-biological respect error is co-ordinated with truth. The utilities of the external, as of the subjective, life provide that we get from the one as well as from the other precisely that which constitutes the basis of the conduct which is essential for us. Of course, this proposition holds only in the large, and with a wide latitude for variations and defective adaptations. But there is within the sphere of objective knowledge, where there is room for truth and illusion, a definite segment in which both truth and illusion may take on a character nowhere else observed. The subjective, internal facts of the person with whom we are in contact present this area of knowledge. Our fellowman either may voluntarily reveal to us the truth about himself,

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

87 445

or by dissimulation he may deceive us as to the truth. No other object of knowledge can thus of its own initiative, either enlighten us with reference to itself or conceal itself, as a human being can. No other knowable object modifies its conduct from consideration of its being understood or misunderstood. This modification does not, of course, take place throughout the whole range of human relations. In many ways our fellow-man is also in principle only like a fragment of nature, which our apprehension, so to speak, holds fast in its grasp. In many respects, however, the situation is different, and our fellow-man of his own motion gives forth truth or error with reference to himself. Every lie, whatever its content, is in its essential nature a promotion of error with reference to the mendacious subject; for the lie consists in the fact that the liar conceals from the person to whom the idea is conveyed the true conception which he possesses. The specific nature of the lie is not exhausted in the fact that the person to whom the lie is told has a false conception of the fact. This is a detail in common with simple error. The additional trait is that the person deceived is held in misconception about the true intention of the person who tells the lie. Veracity and mendacity are thus of the most farreaching significance for the relations of persons with each other. Sociological structures are most characteristically differentiated by the measure of mendacity that is operative in them. To begin with, in very simple relationships a lie is much more harmless for the persistence of the group than in complex associations. Primitive man, living in communities of restricted extent, providing for his needs by his own production or by direct co-operation, limiting his spiritual interests to personal experience or to simple tradition, surveys and controls the material of his existence more easily and completely than the man of higher culture. In the latter case life rests upon a thousand presuppositions which the individual can never trace back to their origins, and verify; but which he must accept upon faith and belief. In a much wider degree than people are accustomed to realize, modern civilized life—from the economic system which is constantly becoming more and more a credit-economy,

88

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

446

THE AMERICAN JOURNAL OF SOCIOLOGY

to the pursuit of science, in which the majority of investigators must use countless results obtained by others, and not directly subject to verification—depends upon faith in the honor of others. We rest our most serious decisions upon a complicated system of conceptions, the majority of which presuppose confidence that we have not been deceived. Hence prevarication in modern circumstances becomes something much more devastating, something placing the foundations of life much more in jeopardy, than was earlier the case. If lying appeared today among us as a sin as permissible as among the Greek divinities, the Hebrew patriarchs, or the South Sea Islanders; if the extreme severity of the moral law did not veto it, the progressive upbuilding of modern life would be simply impossible, since modern life is, in a much wider than the economic sense, a "credit-economy." This relationship of the times recurs in the case of differences of other dimensions. The farther third persons are located from the center of our personality, the easier can we adjust ourselves practically, but also subjectively, to their lack of integrity. On the other hand, if the few persons in our immediate environment lie to us, life becomes intolerable. This banality must, nevertheless, be brought out to view, because it shows that the ratios of truthfulness and mendacity, which are reconcilable with the continuance of situations, form a scale that registers the ratios of the intensity of these relationships. In addition to this relative sociological permissibility of lying in primitive conditions, we must observe a positive utility of the same. In cases where the first organization, stratification, and centralization of the group are in question, the process is accomplished by means of subjection of the weaker to the physically and mentally superior. The lie that succeeds—that is, which is not seen through—is without doubt a means of bringing mental superiority to expression, and of enabling it to guide and subordinate less crafty minds. It is a spiritual fist-law, equally brutal, but occasionally quite as much in place, as the physical species; for instance, as a selective agency for the breeding of intelligence; as a means of enabling a certain few, for whom others must labor, to secure leisure for production of the higher

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

89 447

cultural good; or in order to furnish a means of leadership for the group forces. The more these purposes are accomplished by means which have fewer disagreeable consequences, the less is lying ncessary, and the more room is made for consciousness of its ethical unworthiness. This process is by no means completed. The small trader still thinks that he cannot dispense with a certain amount of mendacious recommendations of his wares, and he acts accordingly without compunctions of conscience. Wholesale and retail trade on a large scale have passed this stadium, and they are accordingly able to act in accordance with complete integrity in marketing their goods. So soon as the methods of doing business among small traders, and those of the middle class, have reached a similar degree of perfection, the exaggerations and actual falsifications, in advertising and recommending goods, which are today in general not resented in those kinds of business, will fall under the same ethical condemnation which is now passed in the business circles just referred to. Commerce built upon integrity will be in general the more advantageous within a group, in the degree in which the welfare of the many rather than that of the few sets the group standard. For those who are deceived — that is, those placed at a disadvantage by the lie—will always be in the majority as compared with the liar who gets his advantage from the lie. Consequently that enlightenment which aims at elimination of the element of deception from social life is always of a democratic character. Human intercourse rests normally upon the condition that the mode of thought among the persons associated has certain common characteristics; in other words, that objective spiritual contents constitute the common material, which is developed in its individual phases in the course of social contacts. The type and the most essential vehicle of this community of spiritual content is common language. If we look a little closer, however, the common basis here referred to consists by no means exclusively of that which all .equally know, or, in a particular case, of that which the one accepts as the spiritual content of the other; but this factor is shot through by another, viz., knowledge which the one associate possesses, while the other does not. If there were

90

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

448

THE AMERICAN JOURNAL OF SOCIOLOGY

such a thing as complete reciprocal transparency, the relationships of human beings to each other would be modified in a quite unimaginable fashion. The dualism of human nature, by reason of which every manifestation of it has its sources in numerous origins that may be far distant from each other, and every quantity is estimated at the same time as great or small, according as it is contemplated in connection with littleness or greatness, makes it necessary to think of sociological relationships in general dualistically; that is, concord, harmony, mutuality, which count as the socializing forces proper, must be interrupted by distance, competition, repulsion, in order to produce the actual configuration of society. The strenuous organizing forms which appear to be the real constructors of society, or to construct society as such, must be continually disturbed, unbalanced, and detached by individualistic and irregular forces, in order that their reaction and development may gain vitality by alternate concession and resistance. Relationships of an intimate character, the formal vehicle of which is psycho-physical proximity, lose the charm, and even the content, of their intimacy, unless the proximity includes, at the same time and 'alternately, distance and intermission. Finally —and this is the matter with which we are now concerned—the reciprocal knowledge, which is the positive condition of social relationships, is not the sole condition. On the contrary, such as those relationships are, they actually presuppose also a certain nescience, a ratio, that is immeasurably variable to be sure, of reciprocal concealment. The lie is only a very rude form, in the last analysis often quite self-contradictory, in which this necessity comes to the surface. However frequently lying breaks up a social situation, yet, so long as it existed, a lie may have been an integrating element of its constitution. We must take care not to be misled, by the ethically negative value of lying, into error about the direct positive sociological significance of untruthfulness, as it appears in shaping certain concrete situations. Moreover, lying in connection with the elementary sociological fact here in question—viz., the limitation of the knowledge of one associate by another—is only one of the possible means, the positive and aggressive technique, so to speak, the purpose of which in general

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

91 449

is obtained through sheer secrecy and concealment. The following discussion has to do with these more general and negative forms. Before we come to the question of secrecy as consciously willed concealment, we should notice in what various degrees different circumstances involve disregard of reciprocal knowledge by the members of associations. Among those combinations which involve some degree of direct reciprocity on the part of their members, those which are organized for a special purpose are first in eliminating this element of reciprocal knowledge. Among these purposeful organizations, which in principle still involve direct reciprocity, the extreme in the present particular is represented by those in which utterly objective performances of the members are in view. This situation is best typified by the cases in which the contribution of so much cash represents the participation of the individuals in the activities of the group. In such instances reciprocity, coherence, and common pursuit of the purpose by no means rest upon psychological knowledge of the one member by the others. As member of the group the individual is exclusively the agent of a definite performance; and whatever individual motive may impel him to this activity, or whatever may be the total characteristics of his conduct as a whole, is in this connection a matter of complete indifference. The organization for a special purpose (Zweckverband') is the peculiarly discreet sociological formation; its members are in psychological respects anonymous; and, in order to form the combination, they need to know of each other only that they form it. Modern culture is constantly growing more objective. Its tissues grow more and more out of impersonal energies, and absorb less and less the subjective entirety of the individual. In this respect the hand laborer and the factory laborer furnish the antithesis which illustrates the difference between past and present social structure. This objective character impresses itself also upon sociological structure, so that combinations into which formerly the entire and individual person entered, and which consequently demanded reciprocal knowledge beyond the immediate content of the relationship, are now founded exclusively on this content in its pure objectivity.

9

2

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

450

T

h

e Individual a n d Privacy

THE AMERICAN JOURNAL OF SOCIOLOGY

By virtue of the situation just noticed, that antecedent or consequent form of knowledge with reference to an individual— viz., confidence in him, evidently one of the most important synthetic forces within society—gains a peculiar evolution. Confidence, as the hypothesis of future conduct, which is sure enough to become the basis of practical action, is, as hypothesis^ a mediate condition between knowing and not knowing another person. The possession of full knowledge does away with the need of trusting, while complete absence of knowledge makes trust evidently impossible.1 Whatever quantities of knowing and not knowing must commingle, in order to make possible the detailed practical decision based upon confidence, will be determined by the historic epoch, the ranges of interests, and the individuals. The objectification of culture referred to above has sharply differentiated the amounts of knowing and not knowing essential as the condition of confidence. The modern merchant who enters into a transaction with another, the scholar who undertakes an investigation with another, the leader of a political party who makes an agreement with the leader of another party with reference to an election, or the handling of a proposed bill—all these. 1 There is, to be sure, still another type of confidence, which our present discussion has nothing to do with, since it is a type that falls outside the bounds either of knowing or not knowing. It is the type which we call faith of one person in another. It belongs in the category of religious faith. Just as no one has ever believed in the existence of God on grounds of proof, but these proofs are rather subsequent justifications or intellectual reflections of a quite immediate attitude of the affections; so we have faith in another person, although this faith may not be able to justify itself by proofs of the worthiness of the person, and it may even exist in spite of proofs of his unworthiness. This confidence, this subjective attitude of unreservedness toward a person, is not brought into existence by experiences or by hypotheses, but it is a primary attitude of the soul with respect to another. This condition of faith, in a perfectly pure form, detached from every sort of empirical consideration, probably occurs only within the sphere of religion. In order that it may be exercised toward men it probably always needs a stimulus or a sanction from the knowledge or the inference above referred to. On the other hand, it is probable that in those social forms of confidence, however exact or intellectually sanctioned they may seem to be, an element of that sentimental and even mystical " faith " of man toward man is hidden. Perhaps the type of attitude here indicated is a fundamental category of human conduct, resting back upon the metaphysical meaning of our relationship, and realized only empirically, accidentally, and partially through the special conscious grounds of confidence.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

93 45I

with exceptions and modifications that need not be further indicated, know, with reference to their associates, precisely what it is necessary to know for the purposes of the relationship in question. The traditions and institutions, the force of public opinion, and the circumscription of the situation, which unavoidably prejudice the individual, are so fixed and reliable that one only needs to know certain externalities with reference to the other in order to have the confidence necessary for the associated action. The basis of personal qualities, from which in principle a modification of attitude within the relationship could spring, is eliminated from consideration. The motivation and the regulation of this conduct has become so much a matter of an impersonal program that it is no longer influenced by that basis, and confidence no longer depends upon knowledge of that individual element. In more primitive, less differentiated relationships, knowledge of one's associates was much more necessary in personal respects, and much less in respect to their purely objective reliability. Both factors belong together. In order that, in case of lack in the latter respect, the necessary confidence may be produced, there is need of a much higher degree of knowledge of the former sort. That purely general objective knowledge of a person, beyond which everything that is strictly individual in his personality may remain a secret to his associates, must be considerably reinforced in the knowledge of the latter, whenever the organization for a specific purpose to which they belong possesses an essential significance for the total existence of its members. The merchant who sells grain or oil to another needs to know only whether the latter is good for the price. The moment, however, that he associates another with himself as a partner, he must not merely know his standing as to financial assets, and certain quite general qualities of his make-up, but he must see through him very thoroughly as a personality; he must know his moral standards, his degree of companionability, his daring or prudent temperament; and upon reciprocal knowledge of that sort must depend not merely the formation of the relationship, but its entire continuance, the daily associated actions, the division of functions between the partners,

94

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

452

THE AMERICAN JOURNAL OF SOCIOLOGY

etc. The secret of personality is in such a case sociologically more restricted. On account of the extent to which the common interest is dependent upon the personal quality of the associates, no extensive self-existence is in these circumstances permitted to the personality of the individual. Beyond the organizations for distinct purposes, but in like manner beyond the relationships rooted in the total personality, stands the relationship, highly significant sociologically, which is called, in the higher strata of culture, "acquaintance." That persons are "acquainted" with each other signifies in this sense by no means that they know each other reciprocally; that is, that they have insight into that which is peculiarly personal in the individuality. It means only that each has, so to speak, taken notice of the existence of the other. As a rule, the notion of acquaintanceship in this sense is associated only with mere mentioning of the name, the "presentation." Knowledge of the that, not of the what, of the personality distinguishes the " acquaintanceship." In the very assertion that one is acquainted with a given person, or even well acquainted with him, one indicates very distinctly the absence of really intimate relationships. In such case one knows of the other only his external characteristics. These may be only those that are on exhibit in social functions, or they may be merely those that the other chooses to exhibit to us. The grade of acquaintanceship denoted by the phrase "well acquainted with another" refers at the same time not to the essential characteristics of the other, not to that which is most important in his inmost nature, but only to that which is characteristic in the aspect presented to the world. On that account, acquaintanceship in this polite sense is the peculiar seat of "discretion." This attitude consists by no means merely in respect for the secret of the other—that is. for his direct volition to conceal from us this or that. It consists rather in restraining ourselves from acquaintance with all of those facts in the conditions of another which he does not positively reveal. In this instance the particulars in question are not in principle distinctly defined as forbidden territory. The reference is rather to that quite general reserve due to the total personality of another, and

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

95 453

to a special form of the typical antithesis of the imperatives; viz.: what is not forbidden is permitted, and, what is not permitted is forbidden. Accordingly, the relationships of men are differentiated by the question of knowledge with reference to each other: what is not concealed may be known, and what is not revealed may yet not be known. The last determination corresponds to the otherwise effective consciousness that an ideal sphere surrounds every human being, different in various directions and toward different persons; a sphere varying in extent, into which one may not venture to penetrate without disturbing the personal value of the individual. Honor locates such an area. Language indicates very nicely an invasion of this sort by such phrases as "coming too near" (zu nahe treteri). The radius of that sphere, so to speak, marks the distance which a stranger may not cross without infringing upon another's honor. Another sphere of like form corresponds to that which we designate as the "significance" (Bedeutung) of another personality. Towards the "significant" man there exists an inner compulsion to keep one's distance. Even in somewhat intimate relationships with him this constraint does not disappear without some special occasion; and it is absent only in the case of those who are unable to appreciate the "significance." Accordingly, that zone of separation does not exist for the valet, because for him there is no "hero." This, however, is the fault, not of the hero, but of the valet Furthermore, all intrusiveness is bound up with evident lack of sensitiveness for the scale of significance among people. Whoever is intrusive toward a significant personality does not, as it might superficially appear, rate that person high or too high; but on the contrary, he gives evidence of lacking capacity for appropriate respect. As the painter often emphasizes the significance of one figure in a picture that includes many persons, by grouping the rest at a considerable distance from the important figure, so there is a sociological parallel in the significance of distance, which holds another outside of a definite sphere filled by the personality with its power, its will, and its greatness. A similar circuit, although quite different in value, surrounds the man in the setting of his affairs and

96

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

454

THE AMERICAN JOURNAL OF SOCIOLOGY

his qualities. To penetrate this circuit by curiosity is a violation of his personality. As material property is at the same time an extension of the ego—property is precisely that which obeys the will of the possessor, as, in merely graduated difference, the body is our first " property" (Besitz)— and as on that account every invasion of this possession is resented as a violation of the personality; so there is a spiritual private property, to invade which signifies violation of the ego at its center. Discretion is nothing other than the sense of justice with respect to the sphere of the intimate contents of life. Of course, this sense is various in its extension in connection with different personalities, just as the sense of honor and of personal property has a quite different radius with reference to the persons in one's immediate circle from that which it has toward strangers and indifferent persons. In the case of the above-mentioned social relationships in the narrower sense, as most simply expressed in the term " acquaintanceship," we have to do immediately with a quite typical boundary, beyond which perhaps no guarded secrets lie; with reference to which, however, the outside party, in the observance of conventional discretion, does not obtrude by questions or otherwise. The question where this boundary lies is, even in principle, by no means easy to answer. It leads rather into the finest meshes of social forms. The right of that spiritual private property just referred to can no more be affirmed in the absolute sense than that of material property. We know that in higher societies the latter, with reference to the three essential sides, creation, security, and productiveness, never rests merely upon the personal agency of the individual. It depends also upon the conditions and powers of the social environment; and consequently its limitations, whether through the prohibitions that affect the mode of acquiring property, or through taxation, are from the beginning the right of the whole. This right, however, has a still deeper basis than the principle of service and counter-service between society and the individual. That basis is the much more elementary one, that the part must subject itself to so much limitation of its self-sufficiency as is demanded by the existence and purposes of the whole. The same principle applies to the

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

97 455

subjective sphere of personality. In the interest of association, and of social coherence, each must know certain things with reference to the other; and this other has not the right to resist this knowledge from the moral standpoint, and to demand the discretion of the other; that is, the undisturbed possession of his being and consciousness, in cases in which discretion would prejudice social interests. The business man who enters into a contractual obligation with another, covering a long future; the master who engages a servant; and, on the other hand, this latter, before he agrees to the servile relationship; the superintendent who is responsible for the promotion of a subordinate; the head of a household who admits a new personality into her social circle—all these must have the right to trace out or to combine everything ,with reference to the past or the present of the other parties in question, with reference to their temperament, and their moral make-up, that would have any relation to the conclusion or the rejection of the proposed relationship. These are quite rough cases in which the beauty of discretion—that is, of refraining from knowledge of everything which the other party does not voluntarily reveal to us—must yield to the demands of practical necessity. But in finer and less simple form, in fragmentary passages of association and in unuttered revelations, all commerce of men with each other rests upon the condition that each knows something more of the other than the latter voluntarily reveals to him; and in many respects this is of a sort the knowledge of which, if possible, would have been prevented by the party so revealed. While this, judged as an individual affair, may count as indiscretion, although in the social sense it is necessary as a condition for the existing closeness and vitality of the interchange, yet the legal boundary of this invasion upon the spiritual private property of another is extremely difficult to draw. In general, men credit themselves with the right to know everything which, without application of external illegal means, through purely psychological observation and reflection, it is possible to ascertain. In point of fact, however, indiscretion exercised in this way may be quite as violent, and morally quite as unjustifiable, as listening at keyholes and prying into the letters of

98

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

456

THE AMERICAN JOURNAL OF SOCIOLOGY

strangers. To anyone with fine psychological perceptions, men betray themselves and their inmost thoughts and characteristics in countless fashions, not only in spite of efforts not to do so, but often for the very reason that they anxiously attempt to guard themselves. The greedy spying upon every unguarded word; the boring persistence of inquiry as to the meaning of every slight action, or tone of voice; what may be inferred from such and such expressions; what the blush at the mention of a given name may betray—all this does not overstep the boundary of external discretion; it is entirely the labor of one's own mind, and therefore apparently within the unquestionable rights of the agent. This is all the more the case, since such misuse of psychological superiority often occurs as a purely involuntary procedure. Very often it is impossible for us to restrain our interpretation of another, our theory of his subjective characteristics and intentions. However positively an honorable person may forbid himself to practice such cogitation with reference to the unrevealed traits of another, and such exploiting of his lack of foresight and defenselessness, a knowing process often goes on with reference to another so automatically, its result often presents itself so suddenly and unavoidably, that the best intention can do nothing to prevent it. Where the unquestionably forbidden may thus be so unavoidable, the division line between the permitted and the non-permitted is the more indefinite. To what extent discretion must restrain itself from mental handling " of all that which is its own," to what extent the interests of intercourse, the reciprocal interdependence of the members of the same group, limits this duty of discretion—this is a question for the answer to which neither moral tact, nor survey of the objective relationships and their demands, can alone be sufficient, since both factors must rather always work together. The nicety and complexity of this question throw it back in a much higher degree upon the responsibility of the individual for decision, without final recourse to any authoritative general norm, than is the case in connection with a question of private property in the material sense. In contrast with this preliminary form, or this attachment of secrecy, in which not the attitude of the person keeping the secret,

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

99 457

but that of a third party, is in question, in which, in view of the mixture of reciprocal knowledge or lack of knowledge, the emphasis is on the amount of the former rather than on that of the latter—in contrast with this, we come to an entirely new variation; that is, in those relationships which do not, like those already referred to, center around definitely circumscribed interests; but in relationships which, at least in their essential idea, rest upon the whole extension of the personalities concerned. The principal types in this category are friendship and marriage. The ideal of friendship that has come down from antique tradition, and singularly enough has been developed directly in the romantic sense, aims at absolute spiritual confidence, with the attachment that material possession also shall be a resource common to the friends. This entrance of the entire undivided ego into the relationship may be the more plausible in friendship than in love, for the reason that, in the case of friendship, the one-sided concentration upon a single element is lacking, which is present in the other case on account of the sensuous factor in love. To be sure, through the circumstance that in the totality of possible grounds of attachment one assumes the headship, a certain organization of the relationship occurs, as is the case in a group with recognized leadership. A single strong factor of coherence often blazes out the path along which the others, otherwise likely to have remained latent, follow; and undeniably in the case of most men, sexual love opens the doors of the total personality widest; indeed, in the case of not a few, sexuality is the sole form in which they can give their whole ego; just as, in the case of the artist, the form of his art, whatever it may be, furnishes the only possibility of presenting his entire nature. This is to be observed with special frequency among women—to be sure, the same thing is to be asserted in the case of the quite different "Christian love" — namely, that they not only, because they love, devote their life and fortune without reserve; but that this at the same time is chemically dissolved in love, and only and entirely in its coloring, form, and temperature flows over upon the other. On the other hand, however, where the feeling of love is not expansive enough.

100

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

458

THE AMERICAN JOURNAL OF SOCIOLOGY

where the other contents of the soul are not flexible enough, it may take place, as I indicated, that the predominance of the erotic nexus may suppress not only the practically moral, but also the spiritual, contacts that are outside of the erotic group. Consequently friendship, in which this intensity, but also this inequality of devotion, is lacking, may more easily attach the whole person to the whole person, may more easily break up the reserves of the soul, not indeed by so impulsive a process, but throughout a wider area and during a longer succession. This complete intimacy of confidence probably becomes, with the changing differentiation of men, more and more difficult. Perhaps the modern man has too much to conceal to make a friendship in the ancient sense possible; perhaps personalities also, except in very early years, are too peculiarly individualized for the complete reciprocality of understanding, to which always so much divination and productive phantasy are essential. It appears that, for this reason, the modern type of feeling inclines more to differentiated friendships; that is, to those which have their territory only upon one side of the personality at a time, and in which the rest of the personality plays no part. Thus a quite special type of friendship emerges. For our problem, namely, the degree of intrusion or of reserve within the friendly relationship, this type is of the highest significance. These differentiated friendships, which bind us to one man from the side of sympathy, to another from the side of intellectual community, to a third on account of religious impulses, to a fourth because of common experiences, present, in connection with the problem of discretion, or self-revelation and self-concealment, a quite peculiar synthesis. They demand that the friends reciprocally refrain from obtruding themselves into the range of interests and feelings not included in the special relationship in each case. Failure to observe this condition would seriously disturb reciprocal understanding. But the relationship thus bounded and circumscribed by discretion nevertheless has its sources at the center of the whole personality, in spite of the fact that it expresses itself only in a single segment of its periphery. It leads ideally toward the same depths of sentiment, and to the

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

101 459

same capacity to sacrifice, which undifferentiated epochs and persons associate only with a community of the total circumference of life, with no question about reserves and discretions. Much more difficult is measurement of self-revelation and reserve, with their correlates intrusiveness and discretion, in the case of marriage. In this relationship these forms are among the universal problems of the highest importance for the sociology of intimate associations. We are confronted with the questions, whether the maximum of reciprocality is attained in a relationship in which the personalities entirely resign to each other their separate existence, or quite the contrary, through a certain reserve—whether they do not in a certain qualitative way belong to each other more if they belong to each other less quantitatively. These questions of ratio can of course, at the outset, be answered only with the further question: How is the boundary to be drawn, within the whole area of a person's potential communicability, at which ultimately the reserve and the respect of another are to begin? The advantage of modern marriage—which, to be sure, makes both questions answerable only one case at a time — is that this boundary is not from the start determined, as was the case in earlier civilizations. In these other civilizations marriage is, in principle, as a rule, not an erotic phenomenon, but merely a social-economic institution. The satisfaction of the instincts of love is only accidentally connected with it. With certain exceptions, the marriage is not on grounds of individual attraction, but rather of family policy, labor relationships, or desire for descendants. The Greeks, for example, carried this institution to the most extreme differentiation. Thus Demosthenes said: "We have hetaerae for our pleasure, concubines for our daily needs, but wives to give us lawful children and to care for the interior of the house." The same tendency to exclude from the community of marriage, a priori, certain defined lifecontents, and by means of super-individual provisions, appears in the variations in the forms of marriage to be found in one and the same people, with possibility of choice in advance on the part of those contracting marriages. These forms are differentiated in various ways with reference to the economic, religious, legal,

102

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

460

THE AMERICAN JOURNAL OF SOCIOLOGY

and other interests connected with the family. We might cite many nature-peoples, the Indians, the Romans, etc. No one will, of course, fail to observe that, also within modern life, marriage is, probably in the majority of cases, contracted from conventional or material motives; nevertheless, entirely apart from the frequency of its realization, the sociological idea of modern marriage is the community of all life-contents, in so far as they immediately, and through their effects, determine the value and the destiny of the personalities. Moreover, the prejudice of this ideal demand is by no means ineffective. It has often enough given place and stimulus for developing an originally very incomplete reciprocation into an increasingly comprehensive attachment. But, while the very indeterminateness of this process is the vehicle of the happiness and the essential vitality of the relationship, its reversal usually brings severe disappointments. If, for example, absolute unity is from the beginning anticipated, if demand and satisfaction recognize no sort of reserve, not even that which for all fine and deep natures must always remain in the hidden recesses of the soul, although they may think they open themselves entirely to each other—in such cases the reaction and disillusionment must come sooner or later. In marriage, as in free relationships of analogous types, the temptation is very natural to open oneself to the other at the outset without limit; to abandon the last reserve of the soul equally with those of the body, and thus to lose oneself completely in another. This, however, usually threatens the future of the relationship. Only those people can without danger give themselves entirely to each other who cannot possibly give themselves entirely, because the wealth of their soul rests in constant progressive development, which follows every devotion immediately with the growth of new treasures. Complete devotion is safe only in the case of those people who have an inexhaustible fund of latent spiritual riches, and therefore can no more alienate them in a single confidence than a tree can give up the fruits of next year by letting go what it produces at the present moment. The case is quite different, however, with those people who, so to speak, draw from their capital all their betrayals of feeling and

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

103 461

the revelations of their inner life; in whose case there is no further source from which to derive those elements which should not be revealed, and which are not to be disjoined from the essential ego. In such cases it is highly probable that the parties to the confidence will one day face each other empty-handed; that the Dionysian free-heartedness may leave behind a poverty which —unjustly, but not on that account with less bitterness—may so react as even to charge the enjoyed devotion with deception. We are so constituted that we not merely, as was remarked, need a certain proportion of truth and error as the basis of our life, but also a similar mixture of definiteness and indefiniteness in the picture of our life-elements. That which we can see through plainly to its last ground shows us therewith the limit of its attraction, and forbids our phantasy to do its utmost in adding to the reality. For this loss no literal reality can compensate us, because the action of the imagination of which we are deprived is self-activity, which cannot permanently be displaced in value by any receptivity and enjoyment. Our friend should not only give us a cumulative gift, but also the possibility of conferring gifts upon him, with hopes and idealizations, with concealed beauties and charms unknown even to himself. The manner, however, in which we-dispose of all this, produced by ourselves, but for his sake, is the vague horizon of his personality, the intermediate zone in which faith takes the place of knowledge. It must be observed that we have here to do by no means with mere illusions, or with optimistic or infatuated self-deception. The fact is rather that, if the utmost attractiveness of another person is to be preserved for us, it must be presented to us in part in the form of vagueness or impenetrability. This is the only substitute which the great majority of people can offer for that attractive value which the small minority possess through the inexhaustibility of their inner life and growth. The mere fact of absolute understanding, of having accomplished psychological exhaustion of the contents of relationship with another, produces a feeling of insipidity, even if there is no reaction from previous exaltation; it cripples the vitality of the relationship, and gives to its continuance an appearance of utter futility. This is the danger of

104

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

462

THE AMERICAN JOURNAL OF SOCIOLOGY

that unbroken, and in a more than external sense shameless, dedication to which the unrestricted possibilities of intimate relationships seduce, which indeed is easily regarded as a species of obligation in those relationships. Because of this absence of reciprocal discretion, on the side of receiving as well as of giving, many marriages are failures. That is, they degenerate into vulgar habit, utterly bereft of charm, into a matter-of-course which retains no room for surprises. The fruitful depth of relationships which, behind every latest revelation, implies the still unrevealed, which also stimulates anew every day to gain what is already possessed, is merely the reward of that tenderness and self-control which, even in the closest relationship, comprehending the whole person, still respect the inner private property, which hold the right of questioning to be limited by a right of secrecy. All these combinations are characterized sociologically by the fact that the secret of the one party is to a certain extent recognized by the other, and the intentionally or unintentionally concealed is intentionally or unintentionally respected. The intention of the concealment assumes, however, a quite different intensity so soon as it is confronted by a purpose of discovery. Thereupon follows that purposeful concealment, that aggressive defense, so to speak, against the other party, which we call secrecy in the most real sense. Secrecy in this sense— i. e., which is effective through negative or positive means of concealment — is one of the greatest accomplishments of humanity. In contrast with the juvenile condition in which every mental picture is at once revealed, every undertaking is open to everyone's view, secrecy procures enormous extension of life, because with publicity many sorts of purposes could never arrive at realization. Secrecy secures, so to speak, the possibility of a second world alongside of the obvious world, and the latter is most strenuously affected by the former. Every relationship between two individuals or two groups will be characterized by the ratio of secrecy that is involved in it. Even when one of the parties does not notice the secret factor, yet the attitude of the concealer, and consequently the whole relationship, will be modified by it. The historical development of society is in many respects characterized

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

105 463

by the fact that what was formerly public passes under the protection of secrecy, and that, on the contrary, what was formerly secret ceases to require such protection and proclaims itself. This is analogous with that other evolution of mind in which movements at first executed consciously become unconsciously mechanical, and, on the other hand, what was unconscious and instinctive rises into the light of consciousness. How this development is distributed over the various formations of private and public life, how the evolution proceeds toward better-adapted conditions, because, on the one hand, secrecy that is awkward and undifferentiated is often far too widely extended, while, on the other hand, in many respects the usefulness of secrecy is discovered very late; how the quantum of secrecy has variously modified consequences in accordance with the importance or indifference of its content — all this, merely in its form as questions, throws a flow of light upon the significance of secrecy for the structure of human reciprocities. In this connection we must not allow ourselves to be deceived by the manifold ethical negativeness of secrecy. Secrecy is a universal sociological form, which, as such, has nothing to do with the moral valuations of its contents. On the one hand, secrecy may embrace the highest values: the refined shame of the lofty spirit, which covers up precisely its best, that it may not seem to seek its reward in praise or wage; for after such payment one retains the reward, but no longer the real value itself. On the other hand, secrecy is not in immediate interdependence with evil, but evil with secrecy. For obvious reasons, the immoral hides itself, even when its content encounters no social penalty, as, for example, many sexual faults. The essentially isolating effect of immorality as such, entirely apart from all primary social repulsion, is actual and important. Secrecy is., among other things, also the sociological expression of moral badness, although the classical aphorism, " No one is so bad that he also wants to seem bad," takes issue with the facts. Obstinacy and cynicism may often enough stand in the way of disguising the badness. They may even exploit it for magnifying the personality in the judgment of

The Individual and Privacy

706

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

464

THE AMERICAN JOURNAL OF SOCIOLOGY

others, to the degree that sometimes immoralities which do not exist are seized upon as material for self-advertising. The application of secrecy as a sociological technique, as a form of commerce without which, in view of our social environment, certain purposes could not be attained, is evident without further discussion. Not so evident are the charms and the values which it possesses over and above its significance as a means, the peculiar attraction of the relation which is mysterious in form, regardless of its accidental content. In the first place, the strongly accentuated exclusion of all not within the circle of secrecy results in a correspondingly accentuated feeling of personal possession. For many natures possession acquires its proper significance, not from the mere fact of having, but besides that there must be the consciousness that others must forego the possession. Evidently this fact has its roots in our stimulability by contrast. Moreover, since exclusion of others from a possession may occur especially in the case of high values, the reverse is psychologically very natural, viz., that what is withheld from the many appears to have a special value. Accordingly, subjective possessions of the most various sorts acquire a decisive accentuation of value through the form of secrecy, in which the substantial significance of the facts concealed often enough falls into a significance entirely subordinate to the fact that others are excluded from knowing them. Among children a pride and self-glory often bases itself on the fact that the one can say to the others: " I know something that you don't know." This is carried to such a degree that it becomes a formal means of swaggering on the one hand, and of de-classing on the other. This occurs even when it is a pure fiction, and no secret exists. From the narrowest to the widest relationships, there are exhibitions of this jealousy about knowing something that is concealed from others. The sittings of the English Parliament were long secret, and even in the reign of George III reports of them in the press were liable to criminal penalties as violations of parliamentary privilege. Secrecy gives the person enshrouded by it an exceptional position; it works as a stimulus of purely social derivation, which is in principle quite independent of its casual content, but is naturally heightened in the degree in

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

107 465

which the exclusively possessed secret is significant and comprehensive. There is also in this connection an inverse phenomenon, analogous with the one just mentioned. Every superior personality, and every superior performance, has, for the average of mankind, something mysterious. To be sure, all human being and doing spring from inexplicable forces. Nevertheless, within levels of similarity in quality and value, this fact does not make the one person a problem to another, especially because in respect to this equality a certain immediate understanding exists which is not a special function of the intellect. If there is essential inequality, this understanding cannot be reached, and in the form of specific divergence the general mysteriousness will be effective —somewhat as one who always lives in the same locality may never encounter the problem of the influence of the environment, which influence, however, may obtrude itself upon him so soon as he changes his environment, and the contrast in the reaction of feeling upon the life-conditions calls his attention to this causal factor in the situation. Out of this secrecy, which throws a shadow over all that is deep and significant, grows the logically fallacious, but typical, error, that everything secret is something essential and significant. The natural impulse to idealization, and the natural timidity of men, operate to one and the same end in the presence of secrecy; viz., to heighten it by phantasy, and to distinguish it by a degree of attention that published reality could not command. Singularly enough, these attractions of secrecy enter into combination with those of its logical opposite; viz., treason or betrayal of secrets, which are evidently no less sociological in their nature. Secrecy involves a tension which, at the moment of revelation, finds its release. This constitutes the climax in the development of the secret; in it the whole charm of secrecy concentrates and rises to its highest pitch—just as the moment of the disappearance of an object brings out the feeling of its value in the most intense degree. The sense of power connected with possession of money is most completely and greedily concentrated for the soul of the spendthrift at the moment at which this power slips from his hands. Secrecy also is sustained by the conscious-

108

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

466

THE AMERICAN JOURNAL OF SOCIOLOGY

ness that it might be exploited, and therefore confers power to modify fortunes, to produce surprises, joys, and calamities, even if the latter be only misfortunes to ourselves. Hence the possibility and the temptation of treachery plays around the secret, and the external danger of being discovered is interwoven with the internal danger of self-discovery, which has the fascination of the brink of a precipice. Secrecy sets barriers between men, but at the same time offers the seductive temptation to break through the barriers by gossip or confession. This temptation accompanies the psychical life of the secret like an overtone. Hence the sociological significance of the secret, its practical measure, and the mode of its workings must be found in the capacity or the inclination of the initiated to keep the secret to himself, or in his resistance or weakness relative to the temptation to betrayal. From the play of these two interests, in concealment and in revelation, spring shadings and fortunes of human reciprocities throughout their whole range. If, according to our previous analysis, every human relationship has, as one of its traits, the degree of secrecy within or around it, it follows that the further development of the relationship in this respect depends on the combining proportions of the retentive and the communicative energies—the former sustained by the practical interest and the formal attractiveness of secrecy as such, the latter by inability to endure longer the tension of reticence, and by the superiority which is latent, so to speak, in secrecy, but which is actualized for the feelings only at the moment of revelation, and often also, on the other hand, by the joy of confession, which may contain that sense of power in negative and perverted form, as self-abasement and contrition. All these factors, which determine the sociological role of secrecy, are of individualistic nature, but the ratio in which the qualities and the complications of personalities form secrets, depends at the same time upon the social structure upon which its life rests. In this connection the decisive element is that the secret is an individualizing factor of the first rank, and that in the typical double role; i. e., social relationships characterized by a large measure of personal differentiation permit and promote secrecy in a high degree, while, conversely, secrecy serves and

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

intensifies such differentiation. In a small and restricted circuit, construction and preservation of secrets are technically difficult from the fact that each is too close to the circumstances of each, and that the frequency and intimacy of contacts carry with them too great temptation to disclose what might otherwise be hidden. But in this case there is no need of secrecy in a high degree, because this social formation usually tends to level its members, and every peculiarity of being, acting, or possessing the persistence of which requires secrecy is abhorrent to it. That all this changes to its opposite in case of large widening of the circle is a matter-of-course. In this connection, as in so many other particulars, the facts of monetary relationships reveal most distinctly the specific traits of the large circle. Since transfers of economic values have occurred principally by means of money, an otherwise unattainable secrecy is possible in such transactions. Three peculiarities of the money form of values are here important: first, its compressibility, by virtue of which it is possible to make a man rich by slipping into his hand a check without attracting attention; second, its abstractness and absence of qualitative character, in consequence of which numberless sorts of acquisitions and transfers of possessions may be covered up and guarded from publicity in a fashion impossible so long as values could be possessed only as extended, tangible objects; third, its long-distance effective-: ness, by virtue of which we may invest it in the most widely removed and constantly changing values, and thus withdraw it utterly from the view of our nearest neighbors. These facilities of dissimulation which inhere in the degree of extension in the use of money, and which disclose their dangers particularly in dealings with foreign money, have called forth, as protective provisions, publicity of the financial operations of corporations. This points to a closer definition of the formula of evolution discussed above; viz., that throughout the form of secrecy there occurs a permanent in- and out-flow of content, in which what is originally open becomes secret, and what was originally concealed throws off its mystery. Thus we might arrive at the paradoxical idea that, under otherwise like circumstances, human associations require a definite ratio of secrecy which merely changes its

109

110

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

468

THE AMERICAN JOURNAL OF SOCIOLOGY

objects; letting go of one, it seizes another, and in the course of this exchange it keeps its quantum unvaried. We may even fill out this general scheme somewhat more exactly. It appears that with increasing telic characteristics of culture the affairs of people at large become more and more public, those of individuals more and more secret In less developed conditions, as observed above, the circumstances of individual persons cannot protect themselves in the same degree from reciprocal prying and interfering as within modern types of life, particularly those that have developed in large cities, where we find a quite new degree of reserve and discretion. On the other hand, the public functionaries in undeveloped states envelop themselves in a mystical authority, while in maturer and wider relations, through extension of the range of their prerogatives, through the objectivity of their technique, through the distance that separates them from most of the individuals, a security and a dignity accrue to them which are compatible with publicity of their behavior. That earlier secrecy of public functions, however, betrayed its essential contradictoriness in begetting at once the counter-movements of treachery, on the one hand, and of espionage, on the other. As late as the seventeenth and eighteenth centuries, governments most anxiously covered up the amounts of public debts, the conditions of taxation, and the size of their armies. In consequence of this, ambassadors often had nothing better to do than to act as informers, to get possession of the contents of letters, and to prevail upon persons who were acquainted with valuable facts, even down to servants, to tattle their secrets.2 In the nineteenth century, however, publicity takes possession of national affairs to such an extent that the governments themselves publish the official data without concealing, which no government would earlier 'This counter-movement occurs also in the reverse direction. It has been observed, in connection with the history of the English court, that the actual court cabals, the secret whisperings, the organized intrigues, do not spring up under despotism, but only after the king has constitutional advisers, when the government is to that extent a system open to view. After that time — and this applies especially since Edward II — the king begins to form an unofficial, and at the same time subterranean, circle of advisers, in contrast with the ministers somehow forced upon him. This body brings into existence, within itself, and through endeavors to join it, a chain of concealments and conspiracies.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

111 469

have thought possible. Accordingly, politics, administration, justice, have lost their secrecy and inaccessibility in precisely the degree in which the individual has gained possibility of more complete privacy, since modern life has elaborated a technique for isolation of the affairs of individuals, within the crowded conditions of great cities, possible in former times only by means of spatial separation. To what extent this development is to be regarded as advantageous depends upon social standards of value. Democracies are bound to regard publicity as the condition desirable in itself. This follows from the fundamental idea that each should be informed about all the relationships and occurrences with which he is concerned, since this is a condition of his doing his part with reference to them, and every community of knowledge contains also the psychological stimulation to community of action. It is immaterial whether this conclusion is entirely binding. If an objective controlling structure has been built up, beyond the individual interests, but nevertheless to their advantage, such a structure may very well, by virtue of its formal independence, have a rightful claim to carry on a certain amount of secret functioning without prejudice to its public character, so far as real consideration of the interests of all is concerned. A logical connection, therefore, which would necessitate the judgment of superior worth in favor of the condition of publicity, does not exist. On the other hand, the universal scheme of cultural differentiation puts in an appearance here: that which pertains to the public becomes more public, that which belongs to the individual becomes more private. Moreover, this historical development brings out the deeper real significance: that which in its nature is public, which in its content concerns all, becomes also externally, in its sociological form, more and more public; while that which in its inmost nature refers to the self alone— that is, the centripetal affairs of the individual — must also gain in sociological position a more and more private character, a more decisive possibility of remaining secret. While secrecy, therefore, is a sociological ordination which characterizes the reciprocal relation of group elements, or rather

112

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

470

THE AMERICAN JOURNAL OF SOCIOLOGY

in connection with other forms of reaction constitutes this total relation, it may further, with the formation of " secret societies," extend itself over the group as a whole. So long as the being, doing, and having of an individual persist as a secret, his general sociological significance is isolation, antithesis, egoistic individualization. In this case the sociological meaning of the secrecy is external; as relationship of him who has the secret to him who does not have it. So soon, however, as a group as such seizes upon secrecy as its form of existence, the sociological meaning of the secrecy becomes internal. It now determines the reciprocal relations of those who possess the secret in common. Since, however, that relation of exclusion toward the uninitiated exists here also with its special gradations, the sociology of secret societies presents the complicated problem of ascertaining the immanent forms of a group which are determined by attitudes of secrecy on the part of the same toward other elements. I do not preface this part of the discussion with a systematic classification of secret societies, which would have only an external historical interest. The essential categories will appear at once. The first internal relation that is essential to a secret society is the reciprocal confidence of its members. This element is needed in a peculiar degree, because the purpose of maintaining the secrecy is, first of all, protection. Most radical of all the protective provisions is certainly that of invisibility. At this point the secret society is distinguished in principle from the individual who seeks the protection of secrecy. This can be realized only with respect to specific designs or conditions; as a whole, the individual may hide himself temporarily, he may absent himself from a given portion of space; but, disregarding wholly abstruse combinations, his existence cannot be a secret. In the case of a societary unity, on the contrary, this is entirely possible. Its elements may live in the most frequent commerce, but that they compose a society—a conspiracy, or a band of criminals, a religious conventicle, or an association for sexual extravagances — may remain essentially and permanently a secret. This type, in which not the individuals but their combination is concealed, is sharply distinguished from the others, in which the social formation is

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OP SECRECY

113 471

unequivocally known, but the membership, or the purpose, or the special conditions of the combination are secrets; as, for instance, many secret bodies among the nature peoples, or the Freemasons. The form of secrecy obviously does not afford to the latter types the same unlimited protection as to the former, since what is known about them always affords a point of attack for further intrusion. On the other hand, these relatively secret societies always have the advantage of a certain variability. Because they are from the start arranged on the basis of a certain degree of publicity, it is easier for them to accommodate themselves to further betrayals than for those that are as societies entirely unavowed. The first discovery very often destroys the latter, because their secret is apt to face the alternative, whole or not at all. It is the weakness of secret societies that secrets do not remain permanently guarded. Hence we say with truth: " A secret that two know is no longer a secret." Consequently, the protection that such societies afford is in its nature, to be sure, absolute, but it is only temporary, and, for contents of positive social value, their commitment to the care of secret societies is in fact a transitional condition, which they no longer need after they have developed a certain degree of strength. Secrecy is finally analogous only with the protection which one secures by evading interruptions. It consequently serves only provisionally, until strength may be developed to cope with interruptions. Under these circumstances the secret society is the appropriate social form for contents which are at an immature stage of development, and thus in a condition peculiarly liable to injury from opposing interests. Youthful knowledge, religion, morality, party, is often weak and in need of defense. Hence each may find a recourse in concealment. Hence also there is a predestination of secret societies for periods in which new life-contents come into existence in spite of the opposition of the powers that be. The eighteenth century affords abundant illustrations. For instance, to cite only one example, the elements of the liberal party were present in Germany at that time. Their emergence in a permanent political structure was postponed by the power of the civic conditions. Accordingly, the secret association was the

114

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

472

THE AMERICAN JOURNAL OF SOCIOLOGY

form in which the germs could be protected and cultivated, as in the case of the orders of the Illuminati. The same sort of protection which secrecy affords to ascending movements is also secured from it during their decline. Refuge in secrecy is a ready resort in the case of social endeavors and forces that are likely to be displaced by innovation. Secrecy is thus, so to speak, a transition stadium between being and not-being. As the suppression of the German communal associations began to occur, at the close of the Middle Ages, through the increasing power of the central governments, a wide-reaching secret life developed within these organizations. It was characterized by hidden assemblies and conferences, by secret enforcement of law, and by violence— somewhat as animals seek the protection of concealment when near death. This double function of secrecy as a form of protection, to afford an intermediate station equally for progressing and for decaying powers, is perhaps most obvious in the case of religious movements. So long as the Christian communities were persecuted by the state, they were often obliged to withdraw their meetings, their worship, their whole existence, from public view. So soon, however, as Christianity had become the state religion, nothing was left for the adherents of persecuted, dying paganism than the same hiding of its cultus which it had previously forced upon the new faith. As a general proposition, the secret society emerges everywhere as correlate of despotism and of police control. It acts as protection alike of defense and of offense against the violent pressure of central powers. This is true, not alone in political relations, but in the same way within the church, the school, and the family. Corresponding with this protective character of the secret society, as an external quality, is, as already observed, the inner quality of reciprocal confidence between the members. This is, moreover, a quite specific type of confidence, viz., in the ability to preserve silence. Social unities may rest, so far as their content is concerned, upon many sorts of presumption about grounds of confidence. They may trust, for example, to the motive of business interest, or to religious conviction, to courage, or to love, to the high moral tone, or—in the case of criminal combinations —

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

115 473

to the radical break with moral imperatives. When the society becomes secret, however, there is added to the confidence determined by the peculiar purposes of the society the further formal confidence in ability to keep still — evidently a faith in the personality, which has, sociologically, a more abstract character than any other, because every possible common interest may be subsumed under it. More than that, exceptions excluded, no kind of confidence requires so unbroken subjective renewal; for when the uncertainty in question is faith in attachment or energy, in morality or intelligence, in sense of honor or tact, facts are much more likely to be observable which will objectively establish the degree of confidence, since they will reduce the probability of deception to a minimum. The probability of betrayal, however, is subject to the imprudence of a moment, the weakness or the agitation of a mood, the perhaps unconscious shading of an accentuation. The keeping of the secret is something so unstable, the temptations to betrayal are so manifold, in many cases such a continuous path leads from secretiveness to indiscretion, that unlimited faith in the former contains an incomparable preponderance of the subjective factor. For this reason those secret societies whose rudimentary forms begin with the secret shared by two, and whose enormous extension through all times and places has not even yet been appreciated, even quantitatively—such societies have exerted a highly efficient disciplinary influence upon moral accountability among men. For there resides in confidence of men toward each other as high moral value as in the companion fact that this confidence is justified. Perhaps the former phenomenon is freer and more creditable, since a confidence reposed in us amounts almost to a constraining prejudice, and to disappoint it requires badness of a positive type. On the contrary, we "give" our faith in another. It cannot be delivered on demand, in the same degree in which it can be realized when spontaneously offered. Meanwhile the secret societies naturally seek means psychologically to promote that secretiveness which cannot be directly forced. The oath, and threats of penalties, are here in the foreground and need no discussion. More interesting is the fre-

116

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

474

THE AMERICAN JOURNAL OF SOCIOLOGY

quently encountered technique for teaching novices the art of silence. In view of the above-suggested difficulties of guarding the tongue absolutely, in view especially of the tell-tale connection which exists on primitive social planes between thought and expression—among children and many nature peoples thinking and speaking are almost one—there is need at the outset of learning silence once for all, before silence about any particular matter can be expected. Accordingly, we hear of a secret order in the Molucca Islands in which not merely silence about his experiences during initiation is enjoined upon the candidate, but for weeks he is not permitted to exchange a word on any subject with anybody, even in his own family. In this case we certainly have the operation not only of the educational factor of entire silence, but it corresponds with the psychical undifferentiation of this cultural level, to forbid speech in general in a period in which some particular silence must be insured. This is somewhat analogous with the fact that immature peoples easily employ the death penalty, where later for partial sins a partial punishment would be inflicted, or with the fact that similar peoples are often moved to offer a quite disproportionate fraction of their possessions for something that momentarily strikes their fancy. It is the specific "incapacity" (Ungeschicklichkeit) which advertises itself in all this; for its essence consists in its incompetence to undertake the particular sort of inhibition appropriate to endeavors after a strictly defined end. The unskilled person moves his whole arm where for his purpose it would be enough to move only two fingers, the whole body when a precisely differentiated movement of the arm would be indicated. In like manner, in the particular types of cases which we are considering, the preponderance of psychical commerce, which can1 be a matter of logical and actual thought-exchange only upon a higher cultural level, both enormously increases the danger of volubility, and, on the other hand, leads far beyond prohibition of the specific act which would embarrass its purposes, and puts a ban on the whole function of which such act would be an incident. When, on the other hand, the secret society of the Pythagoreans prescribed silence for the novice during a number

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

117 475

of years, it is probable that the aim went beyond mere pedagogical discipline of the members in the art of silence, not, however, with special reference to the clumsiness just alluded to, but rather with the aim of extending the differentiated purpose in its own peculiar direction; that is, the aim was not only to secure silence about specific things, but through this particular discipline the adept should acquire power to control himself in general. The society aimed at severe self-discipline and schematic purity of life, and whoever succeeded in keeping silence for years was supposed to be armed against seductions in other directions. Another means of placing reticence upon an objective basis was employed by the Gallic druids. The content of their secrets was deposited chiefly in spiritual songs, which every druid had to commit to memory. This was so arranged, however—especially by prohibition of putting the songs in writing—that an inordinate period was necessary for the purpose, in some cases twenty years. Through this long duration of pupilage, before anything considerable could be acquired which could possibly be betrayed, there grew up a gradual habit of reticence. The undisciplined mind was not suddenly assailed by the temptation to divulge what it knew. There was opportunity for gradual • adaptation to the duty of reticence. The other regulation, that the songs should not be written down, had much more thoroughgoing sociological structural relations. It was more than a protective provision against revelation of the secrets. The necessity of depending upon tradition from person to person, and the fact that the spring of knowledge flowed only from within the society, not from an objective piece of literature—this attached the individual member with unique intimacy to the community. It gave him the feeling that if he were detached from this substance, he would lose his own, and would never recover it elsewhere. We have perhaps not yet sufficiently observed to what extent, in a more advanced cultural stage, the objectifications of intellectual labors affect the capacity of the individual to assert independence. So long as direct tradition, individual instruction, and more than all the setting up of norms by personal authorities, still determine the spiritual life of the individual, he is

118

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

476

THE AMERICAN JOURNAL OF SOCIOLOGY

solidly merged in the environing, living group. This group alone gives him the possibility of a fulfilled and spiritual existence. The direction of those connective tissues through which the contents of his life come to him, run perceptibly at every moment only between his social milieu and himself. So soon, however, as the labor of the group has capitalized its output in the form of literature, in visible works, and in permanent examples, the former immediate flow of vital fluid between the actual group and the individual member is interrupted. The life-process of the latter no longer binds him continuously and without competition to the former. Instead of that, he can now sustain himself from objective sources, not dependent upon the actual presence of former authoratative persons. There is relatively little efficacy in the fact that this now accumulated stock has come from the processes of the social mind. In the first place, it is often the labor of far remote generations quite unconnected with the individual's feeling of present values, which is crystallized in that supply. But, more than that, it is before all else the form of the objectivity of this supply, its detachment from the subjective personality, by virtue of which there is opened to the individual a super-social natural source, and his mental content becomes much more notably dependent, in kind and degree, upon his powers of appropriation than upon the conventionally furnished ideas. The peculiar intimacy of association within the secret society, of which more must be said later, and which gets its place among the categories of the feelings from the traits of the specific "confidence" (Vertrauen) characteristic of the order, in consequence of what has been said very naturally avoids committing the contents of its mysteries to writing, when tradition of spiritual contents is the minor aim of the association. In connection with these questions about the technique of secrecy, it is not to be forgotten that concealment is by no means the only means under whose protection promotion of the material interests of the community is attempted. The facts are in many ways the reverse. The structure of the group is often with the direct view to assurance of keeping certain subjects from general

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

119 477

knowledge. This is the case with those peculiar types of secret society whose substance is an esoteric doctrine, a theoretical, mystical, religious gnosis. In this case secrecy is the sociological endunto-itself. The issue turns upon a body of doctrine to be kept from publicity. The initiated constitute a community for the purpose of mutual guarantee of secrecy. If these initiates were merely a total of personalities not interdependent, the secret would soon be lost. Socialization affords to each of these individuals a psychological recourse for strengthening him against temptations to divulge the secret. While secrecy, as I have shown, works toward isolation and individualization, socialization is a counteractive factor. If this is in general the sociological significance of the secret society, its most clear emergence is in the case of those orders characterized above, in which secrecy is not a mere sociological technique, but socialization is a technique for better protection of the secrecy, in the same way that the oath and total silence, that threats and progressive initiation of the novices, serve the same purpose. All species of socialization shuffle the individualizing and the socializing needs back and forth within their forms, and even within their contents, as though promotion of a stable combining proportion were satisfied by introduction of quantities always qualitatively changing. Thus the secret society counterbalances the separatistic factor which is peculiar to every secret by the very fact that it is society. Secrecy and individualistic separateness are so decidedly correlatives that with reference to secrecy socialization may play two quite antithetical roles. It can, in the first place, as just pointed out, be directly sought, to the end that during the subsequent continuance of the secrecy its isolating tendency may be in part counteracted, that within the secret order the impulse toward community may be satisfied, while it is vetoed with reference to the rest of the world. On the other hand, however, secrecy in principle loses relative significance in cases where the particularization is in principle rejected. Freemasonry, for example, insists that it purposes to become the most universal society, " the union of unions," the only one that repudiates every particularistic character and aims to appropriate as its material exclusively that

120

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

478

THE AMERICAN JOURNAL OF SOCIOLOGY

which is common to all good men. Hand in hand with this increasingly definite tendency there grows up indifference toward the element of secrecy on the part of the lodges, its restriction to the merely formal externalities. That secrecy is now promoted by socialization, and now abolished by it, is thus by no means a contradiction. These are merely diverse forms in which its connection with individualization expresses itself—somewhat as the interdependence of weakness and fear shows itself both in the fact that the weak seek social attachments in order to protect themselves, and in the fact that they avoid social relations when they encounter greater dangers within them than in isolation. The above-mentioned gradual initiation of the members belongs, moreover, to a very far-reaching and widely ramifying division of sociological forms, within which secret societies are marked in a special way. It is the principle of the hierarchy, of graded articulation, of the elements of a society. The refinement and the systematization with which secret societies particularly work out their division of labor and the grading of their members, go along with another trait to be discussed presently; that is, with their energetic consciousness of their life. This life substitutes for the organically more instinctive forces an incessantly regulating will; for growth from within, constructive purposefulness. This rationalistic factor in their upbuilding cannot express itself more distinctly than in their carefully considered and clear-cut architecture. I cite as example the structure of the Czechic secret order, Ondadina, which was organized on the model of a group of the Cwrbonari, and became known in consequence of a judicial process in 1893. The leaders of the Omladina are divided into " thumbs " and "fingers."In secret session a " thumb " is chosen by the members. He selects four "fingers." The latter then choose another " thumb," and this second " thumb " presents himself to the first "thumb." The second "thumb" proceeds to choose four more "fingers"; these, another "thumb;" and so the articulation continues. The first "thumb" knows all the other " thumbs," but the remaining " thumbs " do not know each other. Of the "fingers" only those four know each other who are subordinate to one and the same " thumb." All transactions

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

121 479

of the Omladina are conducted by the first " thumb," the " dictator." He informs the other "thumbs" of all proposed undertakings. The "thumbs" then issue orders to their respective subordinates, the " fingers." The latter in turn instruct the members of the Omladina assigned to each. The circumstance that the secret society must be built up from its base by calculation and conscious volition evidently affords free play for the peculiar passion which is the natural accompaniment of such arbitrary processes of construction, such foreordaining programs. All schematology—of science, of conduct, of society—contains a reserved power1 of compulsion. It subjects a material which is outside of thought to a form which thought has cast. If this is true of all attempts to organize groups according to a priori principles, it is true in the highest degree of the secret society, which does not grow, which is built by design, which has to reckon with a smaller quantum of ready-made building material than any despotic or socialistic scheme. Joined to the interest in making plans, and the constructive impulse, which are in themselves compelling forces, we have in the organization of a society in accordance with a preconceived outline, with fixed positions and ranks, the special stimulus of exercising a decisive influence over a future and ideally submissive circle of human beings. This impulse is decisively separated sometimes from every sort of utility, and revels in utterly fantastic construction of hierarchies. Thus, for example, in the "high degrees" of degenerate Freemasonry. For purposes of illustration I call attention to merely a few details from the " Order of the African Master-Builders." It came into existence in Germany and France after the middle of the eighteenth century, and although it was constructed according to the principles of the Masonic order, it aimed to destroy Freemasonry. The government of the very small society was administered by fifteen officials: summus register, summi locum tenentes, prior, sub-prior, magister, etc. The degrees of the order were seven: the Scottish Apprentices, the Scottish Brothers, the Scottish Masters, the Scottish Knights, the Eques Regii, the Eques de Secta Consueta, the Eques Silentii Regii; etc., etc. Parallel with the development of the hierarchy, and with

122

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

480

THE AMERICAN JOURNAL OF SOCIOLOGY

similar limitations, we observe within secret societies the structure of the ritual. Here also their peculiar emancipation from the prejudices of historical organizations permits them to build upon a self-laid basis extreme freedom and opulence of form. There is perhaps no external tendency which so decisively and with such characteristic differences divides the secret from the open society, as the valuation of usages, formulas, rites, and the peculiar preponderance and antithetic relation of all these to the body of purposes which the society represents. The latter are often guarded with less care than the secret of the ritual. Progressive Freemasonry emphasizes expressly that it is not a secret combination: that it has no occasion to conceal the roll of its members, its purposes, or its acts; the oath of silence refers exclusively to the forms of the Masonic rites. Thus the student order of the Amicisten, at the end of the eighteenth century, has this characteristic provision in sec. i of its statutes: The most sacred silence with reference Among these belong: of fraternity brothers,

duty of each member is to preserve the profoundest to such things as concern the well-being of the order. symbols of the order and signs of recognition, names ceremonies, etc.

Later in the same statute the purpose and character of the order are disclosed and precisely specified! In a book of quite limited size which describes the constitution and character of the Carbonari, the account of the ceremonial forms and usages, at the reception of new members and at meetings, covers seventy-five pages! Further examples are needless. The role of the ritual in secret societies is sufficiently well known, from the religio-mystical orders of antiquity, on the one hand, to the Rosenkreutzer of the eighteenth century, and the most notorious criminal bands. The sociological motivations of this connection are approximately the following. That which is striking about the treatment of the ritual in secret societies is not merely the precision with which it is observed, but first of all the anxiety with which it is guarded as a secret—as though the unveiling of it were precisely as fatal as betrayal of the purposes and actions of the society, or even the existence of the society altogether. The utility of this is probably

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

123 481

in the fact that, through this absorption of a whole complex of external forms into the secret, the whole range of action and interest occupied by the secret society becomes a well-rounded unity. The secret society must seek to create among the categories peculiar to itself, a species of life-totality. Around the nucleus of purposes which the society strongly emphasizes, it therefore builds a structure of formulas, like a body around a soul, and places both alike under the protection of secrecy, because only so can a harmonious whole come into being, in which one part supports the other. That in this scheme secrecy of the external is strongly accentuated, is necessary, because secrecy is not so much a matter of course with reference to these superficialities, and not so directly demanded as in the case of the real interests of the society. This is not greatly different from the situation in military organizations and religious communities. The reason why, in both, schematism, the body of forms, the fixation of behavior, occupies so large space, is that, as a general proposition, both the military and the religious career demand the whole man; that is, each of them projects the whole life upon a special plane; each composes a variety of energies and interests, from a particular point of view, into a correlated unity. The secret society usually tries to do the same. One of its essential characteristics is that, even when it takes hold of individuals only by means of partial interests, when the society in its substance is a purely utilitarian combination, yet it claims the whole man in a higher degree, it combines the personalities more in their whole compass with each other, and commits them more to reciprocal obligations, than the same common purpose would within an open society. Since the symbolism of the ritual stimulates a wide range of vaguely bounded feelings, touching interests far in excess of those that are definitely apprehended, the secret society weaves these latter interests into an aggregate demand upon the individual. Through the ritual form the specific purpose of the secret society is expanded into a comprehensive unity and totality, both sociological and subjective. Moreover, through such formalism, just as through the hierarchical structure above discussed, the secret society constitutes itself a sort of counterpart of the official

124

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

482

THE AMERICAN JOURNAL OF SOCIOLOGY

world with which it places itself in antithesis. Here we have a case of the universally emerging sociological norm; viz., structures, which place themselves in opposition to and detachment from larger structures in which they are actually contained, nevertheless repeat in themselves the forms of the greater structures. Only a structure that in some way can count as a whole is in a situation to hold its elements firmly together. It borrows the sort of organic completeness, by virtue of which its members are actually the channels of a unifying life-stream, from that greater whole to which its individual members were already adapted, and to which it can most easily offer a parallel by means of this very imitation. The same relation affords finally the following motive for the sociology of the ritual in secret societies. Every such society contains a measure of freedom, which is not really provided for in the structure of the surrounding society. Whether the secret society, like the Vehme, complements the inadequate judicature of the political area; or whether, as in the case of conspiracies or criminal bands, it is an uprising against the law of that area; or whether, as in the case of the " mysteries," they hold themselves outside of the commands and prohibitions of the greater area— in either case the apartness (Heraussonderwng) which characterizes the secret society has the tone of a freedom. In exercise of this freedom a territory is occupied to which the norms of the surrounding society do not apply. The nature of the secret society as such is autonomy. It is, however, of a sort which approaches anarchy. Withdrawal from the bonds of unity which procure general coherence very easily has as consequences for the secret society a condition of being without roots, an absence of firm touch with life (Lebensgefuhl), and of restraining reservations. The fixedness and detail of the ritual serve in part to counterbalance this deficit. Here also is manifest how much men need a settled proportion between freedom and law; and, furthermore, in case the relative quantities of the two are not prescribed for him from a single source, how he attempts to reinforce the given quantum of the one by a quantum of the other derived from any source whatsoever, until such settled proportion is reached.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

125 483

With the ritual the secret society voluntarily imposes upon itself a formal constraint, which is demanded as a complement by its material detachment and self-sufficiency. It is characteristic that, among the Freemasons, it is precisely the Americans—who enjoy the largest political freedom—of whom the severest unity in manner of work, the greatest uniformity of the ritual of all lodges, are demanded; while in Germany—where the otherwise sufficient quantum of bondage leaves little room for a counterdemand in the direction of restrictions upon freedom—more freedom is exercised in the manner in which each individual lodge carries on its work. The often essentially meaningless, schematic constraint of the ritual of the secret society is therefore by no means a contradiction of its freedom bordering on anarchy, its detachment from the norms of the circle which contains it. Just as widespread existence of secret societies is, as a rule, a proof of public unfreedom, of a policy of police regulation, of police oppression; so, conversely, ritual regulation of these societies from within proves a freedom and enfranchisement in principle for which the equilibrium of human nature produces the constraint as a counter-influence. These last considerations have already led to the methodological principle with reference to which I shall analyze the still outstanding traits of secret societies. The problem is, in a word, to what extent these traits prove to be in essence quantitative modifications of the typical traits of socialization in general. In order to establish this manner of representing secret societies, we must again review their status in the whole complex of sociological forms. The secret element in societies is a primary sociological fact, a definite mode and shading of association, a formal relationship of quality in immediate or mediate reciprocity with other factors which determine the habit of the group-elements or of the group. The secret society, on the other hand, is a secondary structure; i. e., it arises always only within an already complete society. Otherwise expressed, the secret society is itself characterized by its secret, just as other societies, and even itself, are characterized by their superiority and subordination, or by their offensive pur-

The Individual and Privacy

726

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

484

THE AMERICAN JOURNAL OF SOCIOLOGY

poses, or by their initiative character. That they can build themselves up with such characteristics is possible, however, only under the presupposition of an already existing society. The secret society sets itself as a special society in antithesis with the wider association included within the greater society. This antithesis, whatever its purpose, is at all events intended in the spirit of exclusion. Even the secret society which proposes only to render the whole community a definite service in a completely unselfish spirit, and to dissolve itself after performing the service, obviously regards its temporary detachment from that totality as the unavoidable technique for its purpose. Accordingly, none of the narrower groups which are circumscribed by larger groups are compelled by their sociological constellation to insist so strongly as the secret society upon their formal self-sufficiency. Their secret encircles them like a boundary, beyond which there is nothing but the materially, or at least formally, antithetic, which therefore shuts up the society within itself as a complete unity. In the groupings of every other sort, the content of the grouplife, the actions of the members in the sphere of rights and duties, may so fill up their consciousness that within it the formal fact of socialization under normal conditions plays scarcely any role. The secret society, on the other hand, can on no account permit the definite and emphatic consciousness of its members that they constitute a society to escape from their minds. The always perceptible and always to-be-guarded pathos of the secret lends to the form of union which depends upon the secret, as contrasted with the content, a predominant significance, as compared with other unions. In the secret society there is complete absence of organic growth, of the character of instinct in accumulation, of all unforced matter of course with respect to belonging together and forming a unity. No matter how irrational, mystical, impressionistic (gefiihlsmassig) their contents, the way in which they are constructed is always conscious and intentional. Throughout their derivation and life consciousness of being a society is permanently accentuated. The secret society is, on that account, the antithesis of all genetic (triebhaft) societies, in which the unifica-

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

127 485

tion is more or less only the expression of the natural growing together of elements whose life has common roots. Its sociopsychological form is invariably that of the teleological combination (Zweckverband). This constellation makes it easy to understand that the specifications of form in the construction of secret societies attain to peculiar definiteness, and that their essential sociological traits develop as mere quantitative heightenings of quite general types of relationship. One of these latter has already been indicated; viz., the characterization and the coherence of the society through closure toward the social environment. To this end the often complicated signs of recognition contribute. Through these the individual offers credentials of membership in the society. Indeed, in the times previous to the general use of writing, such signs were more imperative for this use than later. At present their other sociological uses overtop that of mere identification. So long as there was lack of documentary credentials, an order whose subdivisions were in different localities utterly lacked means of excluding the unauthorized, of securing to rightful claimants only the enjoyment of its benefits or knowledge of its affairs, unless these signs were employed. These were disclosed only to the worthy, who were pledged to keep them secret, and who could use them for purposes of legitimation as members of the order wherever it existed. This purpose of drawing lines of separation very definitely characterizes the development manifested by certain secret orders among the nature peoples, especially in Africa and among the Indians. These orders are composed of men alone, and pursue essentially the purpose of magnifying their separation from the women. The members appear in disguises, when they come upon the stage of action as members, and it is customary to forbid women, on pain of severe penalties, to approach them. Still, women have occasionally succeeded in penetrating their veil of secrecy sufficiently to discover that the horrible figures are not ghosts, but their own husbands. When this occurred, the orders have often lost their whole significance, and have fallen to the level of a harmless masquerade. The undifferentiated sensuous conceptions of nature people cannot

128

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

486

THE AMERICAN JOURNAL OF SOCIOLOGY

form a more complete notion of the separateness which orders of this sort wish to emphasize, than in the concealment, by disguise or otherwise, of those who have the desire and the right thus to abstract themselves. That is the rudest and externally most radical mode of concealment; viz., covering up not merely the special act of the person, but at once the whole person obscures himself; the order does not do anything that is secret, but the totality of persons comprising it makes itself into a secret. This form of the secret society corresponds completely with the primitive intellectual plane in which the whole agent throws himself entire into each specific activity; that is, in which the activity is not yet sufficiently objectified to give it a character which less than the whole man can share. Hence it is equally explicable that so soon as the disguise-secret is broken through, the whole separation becomes ineffective, and the order, with its devices and its manifestations, loses at once its inner meaning. In the case in question the separation has the force of an expression of value. There is separation from others because there is unwillingness to give oneself a character common with that of others, because there is desire to signalize one's own superiority as compared with these others. Everywhere this motive leads to the formation of groups which are obviously in sharp contrast with those formed in pursuit of material (sachlich) purposes. As a consequence of the fact that those who want to distinguish themselves enter into combination, there results an aristocracy which strengthens and, so to speak, expands the selfconsciousness of the individuals through the weight of their sum. That exclusiveness and formation of groups are thus bound together by the aristocracy-building motive gives to the former in many cases from the outset the stamp of the " special" in the sense of value. We may observe, even in school classes, how small, closely attached groups of comrades, through the mere formal fact that they form a special group, come to consider themselves an elite, compared with the rest who are unorganized: while the latter, by their enmity and jealousy, involuntarily recognize that higher value. In these cases secrecy and pretense of secrecy (Geheimnistnerei) are means of building higher the wall

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

129 4&7

of separation, and therein a reinforcement of the aristocratic nature of the group. This significance of secret associations, as intensification of sociological exclusiveness in general, appears in a very striking way in political aristocracies. Among the requisites of aristocratic control secrecy has always had a place. It makes use of the psychological fact that the unknown as such appears terrible, powerful, and threatening. In the first place, it employs this fact in seeking to conceal the numerical insignificance of the governing class. In Sparta the number of warriors was kept so far as possible a secret, and in Venice the same purpose was in view in the ordinance prescribing simple black costumes for all the nobili. Conspicuous costumes should not be permitted to make evident to the people the petty number of the rulers. In that particular case the policy was carried to complete concealment of the inner circle of the highest rulers. The names of the three state inquisitors were known only to the Council of Ten who chose them. In some of the Swiss aristocracies one of the most important magistracies was frankly called "the secret officials " (die Heimlichen), and in Freiburg the aristocratic families were known as die heimlichen Geschlechter. On the other hand, the democratic principle is bound up with the principle of publicity, and, to the same end, the tendency toward general and fundamental laws. The latter relate to an unlimited number of subjects, and are thus in their nature public. Conversely, the employment of secrecy within the aristocratic regime is only the extreme exaggeration of that social exclusion and exemption for the sake of which aristocracies are wont to oppose general, fundamentally sanctioned laws. In case the notion of the aristocratic passes over from the politics of a group to the disposition (Gesiwnwng) of an individual, the relationship of separation and secrecy attains to a plane that is, to outward appearance, completely changed. Perfect distinction ( Vomehmheit) in both moral and mental respects, despises all concealment, because its inner security makes it indifferent to what others know or do not know about us, whether their estimate of us is true or false, high or low. From the standpoint of such superiority, secrecy is a concession to outsiders, a

130

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

488

THE AMERICAN JOURNAL OF SOCIOLOGY

dependence of behavior upon consideration of them. Hence the " mask " which so many regard as sign and proof of their aristocratic soul, of disregard of the crowd, is direct proof of the significance that the crowd has for such people. The mask of those whose distinction is real is that the many can at best not understand them, that they do not see them, so to speak, even when they show themselves without disguise. The bar against all external to the circle, which, as universal sociological form-fact, makes use of secrecy as a progressive technique, gains a peculiar coloring through the multiplicity of degrees, through which initiation into the last mysteries of secret societies is wont to occur, and which threw light above upon another sociological trait of secret societies. As a rule, a solemn pledge is demanded of the novice that he will hold secret everything which he is about to experience, before even the first stages of acceptance into the society occur. Therewith is the absolute and formal separation which secrecy can effect, put into force. Yet, since under these conditions the essential content or purpose of the order is only gradually accessible to the neophyte — whether the purpose is the complete purification and salvation of the soul through the consecration of the mysteries, or whether it is the absolute abolition of all moral restraint, as with the Assassins and other criminal societies — the separation in material respects is otherwise ordered; i. e., it is made more continuous and more relative. When this method is employed, the initiate is in a condition nearer to that of the outsider. He needs to be tested and educated up to the point of grasping the whole or the center of the association. Thereby, however, a protection is obviously afforded to the latter, an isolation of it from the external world, which goes beyond the protection gained from the entrance oath. Care is taken — as was incidentally shown by the example of the druids — that the still untried shall also have very little to betray if he would, inasmuch as, within the secret principle which surrounds the society as a whole, graduated secrecy produces at the same time an elastic zone of defense for that which is inmost and essential. The antithesis of the exotic and the esoteric members, as we have it in the case of the

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

131 489

Pythagoreans, is the most striking form of this protective arrangement. The circle of the only partially initiated constitutes to a certain extent a buffer area against the totally uninitiated. As it is everywhere the double function of the "mean" to bind and to separate—or, rather, as it plays only one role, which we, however, according to our apperceptive categories, and according to the angle of our vision, designate as uniting and separating—so in this connection the unity of activities which externally clash with each other appears in the clearest light Precisely because the lower grades of the society constitute a mediating transition to the actual center of the secret, they bring about the gradual compression of the sphere of repulsion around the same, which affords more secure protection to it than the abruptness of a radical standing wholly without or wholly within could secure. Sociological self-sufficiency presents itself in practical effect as group-egoism. The group pursues its purposes with the same disregard of the purposes of the structure external to itself, which in the case of the individual is called egoism. For the consciousness of the individual this attitude very likely gets a moral justification from the fact that the group-purposes in and of themselves have a super-individual, objective character; that it is often impossible to name any individual who would directly profit from the operation of the group egoism; that conformity to this group program often demands unselfishness and sacrifice from it« promoters. The point at issue here, however, is not the ethical valuation, but the detachment of the group from its environments, which the group egoism effects or indicates. In the case of a small group, which wants to maintain and develop itself within a larger circle, there will be certain limits to this policy, so long as it has to be pursued before all eyes. No matter how bitterly a public society may antagonize other societies of a larger organization, or the whole constitution of the same, it must always assert that realization of its ultimate purposes would redound to the advantage of the whole, and the necessity of this ostensible assertion will at all events place some restraint upon the actual egoism of its action. In the case of secret

132

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

490

THE AMERICAN JOURNAL OF SOCIOLOGY

societies this necessity is absent, and at least the possibility is given of a hostility toward other societies, or toward the whole of society, which the open society cannot admit, and consequently cannot exercise without restrictions. In no way is the detachment of the secret society from its social environment so decisively symbolized, and also promoted, as by the dropping of every hypocrisy or actual condescension which is indispensable in co-ordinating the open society with the teleology of the environing whole. In spite of the actual quantitative delimitation of every real society, there is still a considerable number the inner tendency of which is: Whoever is not excluded is included. Within certain political, religious, and class peripheries, everyone is reckoned as of the association who satisfies certain conditions, mostly involuntary, and given along with his existence. Whoever, for example, is born within the territory of a state, unless peculiar circumstances make him an exception, is a member of the highly complex civic society. The member of a given social class is, as a matter of course, included in the conventions and forms of attachment pertaining to the same, if he does not voluntarily or involuntarily make himself an outsider. The extreme is offered by the claim of a church that it really comprehends the totality of the human race, so that only historical accidents, sinful obduracy, or a special divine purpose excludes any persons from the religious community which ideally anticipates even those not in fact within the pale. Here is, accordingly, a parting of two ways, which evidently signify a differentiation in principle of the sociological meaning of societies in general, however they may be confused, and their definiteness toned down in practice. In contrast with the fundamental principle: Whoso is not expressly excluded is included, stands the other: Whoever is not expressly included is excluded. The latter type is presented in the most decisive purity by the secret societies. The unlimited character of their separation, conscious at every step of their development, has, both as cause and as effect, the rule that whoever is not expressly adopted is thereby expressly excluded. The Masonic fraternity could not better support its recently much emphasized assertion that it is

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

133 491

not properly a secret order, than through its simultaneously published ideal of including all men, and thus of representing humanity as a whole. Corresponding with intensification of separateness from the outer world, there is here, as elsewhere, a similar access of coherence within, since these are only the two sides or forms of manifestation of one and the same sociological attitude. A purpose which stimulates formation of a secret union among men as a rule peremptorily excludes such a preponderating portion of the general social environment from participation that the possible and actual participants acquire a scarcity value. These must be handled carefully, because, ceteris paribus, it is much more difficult to replace them than is the case in an ordinary society. More than that, every quarrel within the secret society brings with it the danger of betrayal, to avoid which in this case the motive of self-preservation in the individual is likely to co-operate with the motive of the self-preservation of the whole. Finally, with the defection of the secret societies from the environing social syntheses, many occasions of conflict disappear. Among all the limitations of the individual, those that come from association in secret societies always occupy an exceptional status, in contrast with which the open limitations, domestic and civic, religious and economic, those of class and of friendship, however manifold their content, still have a quite different measure and manner of efficiency. It requires the comparison with secret societies to make clear that the demands of open societies, lying so to speak in one plane, run across each other. As they carry on at the same time an open competitive struggle over the strength and the interest of the individual, within a single one of these spheres, the individuals come into sharp collision, because each of them is at the same time solicited by the interests of other spheres. In secret societies, in view of their sociological isolation, such collisions are very much restricted. The purposes and programs of secret societies require that competitive interests from that plane of the open society should be left outside the door. Since the secret society occupies a plane of its own—few individuals belonging to more than one secret society—it exercises a kind of absolute

134

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

492

THE AMERICAN JOURNAL OF SOCIOLOGY

sovereignty over its members. This control prevents conflicts among them which easily arise in the open type of co-ordination. The "King's peace" (Burgfriede) which should prevail within every society is promoted in a formally unsurpassed manner within secret societies through their peculiar and exceptional limitations. It appears, indeed, that, entirely apart from this more realistic ground, the mere form of secrecy as such holds the associates safer than they would otherwise be from disturbing influences, and thereby make concord more feasible. An English statesman has attempted to discover the source of the strength of the English cabinet in the secrecy which surrounds it. Everyone who has been active in public life knows that a small collection of people may be brought to agreement much more easily if their transactions are secret. Corresponding with the peculiar degree of cohesion within secret societies is the definiteness of their centralization. They furnish examples of an unlimited and blind obedience to leaders, such as occurs elsewhere of course; but it is the more remarkable here, in view of the frequent anarchical and negative character toward all other law. The more criminal the purposes of a secret society, the more unlimited is likely to be the power of the leaders, and the more cruel its exercise. The Assassins in Arabia; the Chauffeurs, a predatory society with various branches that ravaged in France, particularly in the eighteenth century; the Gardunas in Spain, a criminal society that, from the seventeenth to the beginning of the nineteenth century, had relations with the Inquisition — all these, the nature of which was lawlessness and rebellion, were under one commander, whom they sometimes set over themselves, and whom they obeyed without criticism or limitation. To this result not merely the correlation of demand from freedom and for union contributes, as we have observed it in case of the severity of the ritual, and in the present instance it binds together the extremes of the two tendencies. The excess of freedom, which such societies possessed with reference to all otherwise valid norms, had to be offset, for the sake of the equilibrium of interests, by a similar excess of submissiveness and resigning of the individual will. More essential, however.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

135 493

was probably the necessity of centralization, which is the condition of existence for the secret society, and especially when, like the criminal band, it lives off the surrounding society, when it mingles with this society in many radiations and actions, and when it is seriously threatened with treachery and diversion of interests the moment the most invariable attachment to one center ceases to prevail. It is conseqeuntly typical that the secret society is exposed to peculiar dangers, especially when, for any reasons whatever, it does not develop a powerfully unifying authority. The Waldenses were in nature not a secret society. They became a secret society in the thirteenth century only, in consequence of the external pressure, which made it necessary to keep themselves from view. It became impossible, for that reason, to hold regular assemblages, and this in turn caused loss of unity in doctrine. There arose a number of branches, with isolated life and development, frequently in a hostile attitude toward each other. They went into decline because they lacked the necessary and reinforcing attribute of the secret society, viz., constantly efficient centralization. The fact that the dynamic significance of Freemasonry is obviously not quite in proportion with its extension and its resources is probably to be accounted for by the extensive autonomy of its parts, which have neither a unified organization nor a central administration. Since their common life extends only to fundamental principles and signs of recognition, these come to be virtually only norms of equality and of contact between man and man, but not of that centralization which holds together the forces of the elements, and is the correlate of the apartness of the secret society. It is nothing but an exaggeration of this formal motive when, as is often the case, secret societies are led by unknown chiefs. It is not desirable that the lower grades should know whom they are obeying. This occurs primarily, to be sure, for the sake of guarding the secret, and with this in view the device is carried to the point of constructing such a secret society as that of the Welfic Knights in Italy. The order operated at the beginning of the nineteenth century in the interest of Italian liberation and

136

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

494

THE AMERICAN JOURNAL OF SOCIOLOGY

unification. At each of its seats it had a supreme council of six persons, who were not mutually acquainted, but dealt with each other only through a mediator who was known as " The Visible." This, however, is by no means the only utility of the secret headship. It means rather the most extreme and abstract sublimation of centralized coherence. The tension between adherent and leader reaches the highest degree when the latter withdraws from the range of vision. There remains the naked, merciless fact, so to speak, modified by no personal coloring, of obedience pure and simple, from which the superordinated subject has disappeared. If even obedience to an impersonal authority, to a mere magistracy, to the representative of an objective law, has the character of unbending severity, this obedience mounts still higher, to the level of an uncanny absoluteness, so soon as the commanding personality remains in principle hidden. For if, along with the visibility of the ruler, and acquaintance with him, it must be admitted that individual suggestion, the force of the personality, also vanish from the commanding relationship; yet at the same time there also disappear from the relationship the limitations, i. e., the merely relative, the "human," so to speak, which are attributes of the single person who can be encountered in actual experience. In this case obedience must be stimulated by the feeling of being subject to an intangible power, not strictly defined, so far as its boundaries are concerned; a power nowhere to be seen, but for that reason everywhere to be expected. The sociologically universal coherence of a group through the unity of the commanding authority is, in the case of the secret society with unknown headship, shifted into a focus imaginarius, and it attains therewith its most distinct and intense form. The sociological character of the individual elements of the secret society, corresponding with this centralized subordination, is their individualization. In case the society does not have promotion of the interests of its individual members as its immediate purpose, and, so to speak, does not go outside of itself, but rather uses its members as means to externally located ends and activities — in such case the secret society in turn manifests a heightened degree of self-abnegation, of leveling of individuality, which is

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

137 495

already an incident of the social state in general, and with which the secret society outweighs the above-emphasized individualizing and differentiating character of the secrecy. This begins with the secret orders of the nature peoples, whose appearance and activities are almost always in connection with use of disguises, so that an expert immediately infers that wherever we find the use of disguises (Mashen) among nature peoples, they at least indicate a probability of the existence of secret orders. It is, to be sure, a part of the essence of the secret order that its members conceal themselves, as. such. Yet, inasmuch as the given man stands forth and conducts himself quite unequivocably as a member of the secret order, and merely does not disclose which otherwise known individuality is identical with this member, the disappearance of the personality, as such, behind his role in the secret society is most strongly emphasized. In the Irish conspiracy which was organized in America in the seventies under the name Clan-nagael, the individual members were not designated by their names, but only by numbers. This, of course, was with a view to the practical purpose of secrecy. Nevertheless, it shows to what extent secrecy suppresses individuality. Among persons who figure only as numbers, who perhaps—as occurs at least in analogous cases—are scarcely known to the other members by their personal names, leadership will proceed with much less consideration, with much more indifference to individual wishes and capacities, than if the union includes each of its members as a personal being. Not less effective in this respect are the extensive role and the severity of the ritual. All of this always signifies that the object mold has become master over the personal in membership and in activity. The hierarchical order admits the individual merely as agent of a definite role; it likewise holds in readiness for each participant a conventional garb, in which his personal contour disappears. It is merely another name for this effacement of the differentiated personality, when secret societies cultivate a high degree of relative equality among the members. This is so far from being in contradiction of the despotic character of their constitutions that in all sorts of other groupings despotism finds its correlate in the leveling of the ruled. Within the secret

138

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

496

THE AMERICAN JOURNAL OF SOCIOLOGY

society there often exists between the members a fraternal equality which is in sharp and purposeful contrast with their differences in all the other situations of their lives. Typical cases in point appear, on the one hand, in secret societies of a religio-ethical character, which strongly accentuate the element of brotherhood; on the other hand, in societies of an illegal nature. Bismarck speaks in his memoirs of a widely ramified pederastic organization in Berlin, which came under his observation as a young judicial officer; and he emphasizes " the equalizing effect of co-operative practice of the forbidden vice through all social strata." This depersonalizing, in which the secret society carries to an excessive degree a typical relationship between individual and society, appears finally as the characteristic irresponsibility. In this connection, too, physical disguise (Maske) is the primitive phenomenon. Most of the African secret orders are alike in representing themselves by a man disguised as a forest spirit. He commits at will upon whomsoever he encounters any sort of violence, even to robbery and murder. No responsibility attaches to him for his outrages, and evidently this is due solely to the disguise. That is the somewhat unmanageable form under which such societies cause the personality of their adherents to disappear, and without which the latter would undoubtedly be overtaken by revenge and punishment. Nevertheless, responsibility is quite as immediately joined with the ego—philosophically, too, the whole responsibility problem is merely a detail of the problem of the ego—in the fact that removing the marks of identity of the person has, for the naive understanding in question, the effect of abolishing responsibility. Political finesse makes no less use of this correlation. In the American House of Representatives the real conclusions are reached in the standing committees, and they are almost always ratified by the House. The transactions of these committies, however, are secret, and the most important portion of legislative activity is thus concealed from public view. This being the case, the political responsibility of the representatives seems to be largely wiped out, since no one can be made responsible for proceedings that cannot be observed. Since the shares of the individual persons in the transactions remain

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIOLOGY OF SECRECY

139 497

hidden, the acts of committees and of the House seem to be those of a super-individual authority. The irresponsibility is here also the consequence or the symbol of the same intensified sociological de-individualization which goes with the secrecy of group-action. In all directorates, faculties, committees, boards of trustees, etc., whose transactions are secret, the same thing holds. The individual disappears as a person in the anonymous member of the ring, so to speak, and with him the responsibility, which has no hold upon him in his intangible special character. Finally, this one-sided intensification of universal sociological traits is corroborated by the danger with which the great surrounding circle rightly or wrongly believes itself to be threatened from the secret society. Wherever there is an attempt to realize strong centralization, especially of a political type, special organizations of the elements are abhorred, purely as such, entirely apart from their content and purposes. As mere unities, so to speak, they engage in competition with the central principle. The central power wants to reserve to itself the prerogative of binding the elements together in a form of common unity. The jealous zeal of the central power against every special society (Sonderbund) runs through all political history. A characteristic type is presented by the Swiss convention of 1481, according to which no separate alliances were to be formed between any of the ten confederated states. Another is presented by the persecution of the associations of apprentices by the despotism of the seventeenth and eighteenth centuries. A third appears in the tendency to disfranchise local political bodies, so often manifested by the modern state. This danger from the special organization for the surrounding whole appears at a high potency in the case of the secret society. Men seldom have a calm and rational attitude toward strangers or persons only partially known. The folly which treats the unknown as the non-existent, and the anxious imaginativeness which inflates the unknown at once into gigantic dangers and horrors, are wont to take turns in guiding human actions. Accordingly, the secret society seems to be dangerous simply because it is secret. Since it cannot be surely known that any special organization whatever may not some day turn its legally

140

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

498

THE AMERICAN JOURNAL OF SOCIOLOGY

accumulated powers to some undesired end, and since on that account there is suspicion in principle on the part of central powers toward organizations of subjects, it follows that, in the case of organizations which are secret in principle, the suspicion that their secrecy conceals dangers is all the more natural. The societies of Orangemen, which were organized at the beginning of the nineteenth century in England for the suppression of Catholicism, avoided all public discussion, and operated only in secret, through personal bonds and correspondence. But this very secrecy gave them the appearance of a public danger. The suspicion arose " that men who shrank from appealing to public opinion meditated a resort to force." Thus the secret society, purely on the ground of its secrecy, appears dangerously related to conspiracy against existing powers. To what extent this is a heightening of the universal political seriousness of special organizations, appears very plainly in such an occurrence as the following: The oldest Germanic guilds afforded to their members an effective legal protection, and thus to that extent were substitutes for the state. On the one hand, the Danish kings regarded them as supports of public order, and they consequently favored them. On the contrary, however, they appeared, for the same reason, to be direct competitors with the state. For that reason the Prankish capitularies condemned them, and the condemnation even took the form of branding them as conspiracies. The secret association is in such bad repute as enemy of central powers that, conversely, every politically disapproved association must be accused of such hostility!

[7] The Social Psychology of Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Barry Schwartz ABSTRACT Patterns of interaction in any social system are accompanied by counter-patterns of withdrawal, one highly institutionalized (but unexplored) mode of which is privacy. There exists a threshold beyond which social contact becomes irritating for all parties; therefore, some provision for removing oneself from interaction and observation must be built into every establishment. Such provisions subserve the action patterns for which they provide intermission. Privacy, which is bought and sold in social establishments, reflects and affirms status divisions, and permits "localized" deviation which is invisible to the group as a whole. Privacy thereby insulates against dysfunctional knowledge. Rules governing entrance into and exit from privacy are most clearly articulated on the level of the establishment and are reflected in its physical structure and in proprieties concerning the uses of space, doors, windows, drawers, etc. The report ends with a discussion of identity and its relation to the freedoms of engagement and disengagement.

Patterns of coming and staying together imply counterpatterns1 of withdrawal and disaffiliation which, as modalities of action, are worthy of analysis in their own right Simmel makes the identical point in his essay, "Briicke und Tur": "Usually we only perceive as bound that which we have first isolated in some way. If things are to be joined they must first be separated. Practically as well as logically it would be nonsense to speak of binding that which is not separate in its own sense.... Directly as well as symbolically, bodily as well as spiritually, we are continually separating our bonds and binding our separations."2 Simmel, however, ignores the question of how separation subserves integration—of how men are bound by taking leave of one another as well as by their coming together. 1 The initiation of a social contact generally entails a withdrawal from a preceding one. Therefore, men may withdraw into new social circles as well as into seclusion. In this particular sense it would be most exact to employ the term "contactwithdrawal," as opposed to a single term for engagement and another for disengagement However, this distinction does not apply to movements into privacy.

• Georg Simmel, "Brucke und Tur," in Briicke und Tur (Stuttgart: K. F. Koebler, 19S7), p. 1.

One sociologically relevant approach to this problem is through the analysis of privacy, which is a highly institutionalized mode of withdrawal. THE GROUP-PRESERVING FUNCTIONS 07 PRIVACY

Withdrawal into privacy is often a means of making life with an unbearable (or sporadically unbearable) person possible. If the distraction and relief of privacy were not available hi such a case, the relationship would have to be terminated if conflict were to be avoided. Excessive contact is the condition under which Freud's principle of ambivalence most clearly exercises itself, when intimacy is most likely to produce open hostility as well as affection.* Issue must therefore be taken with Romans' proposition, "Persons who interact frequently with one another tend to like one another" (providing the relationship is not obligatory).4 The statement holds generally, but misses the essential point that there 3 Sigmund Freud, Group Psychology and the Analysis of the Ego (New York: Bantam Books, Inc., 1960), pp. 41-42.

4 George C. Homans, The Unman Group (New York: Harcourt, Brace & Co., 1950), p. 111.

142

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

742

The Individual and Privacy THE AMERICAN JOURNAL OF SOCIOLOGY

is a threshold beyond which interaction is unendurable for both parties. It is because people frequently take leave of one another that the interaction-liking proposition maintains itself. Guarantees of privacy, that is, rules as to who may and who may not observe or reveal information about whom, must be established in any stable social system. If these assurances do not prevail—if there is normlessness with respect to privacy— every withdrawal from visibility may be accompanied by a measure of espionage, for without rules to the contrary persons are naturally given to intrude upon invisibility. "Secrecy sets barriers between men," writes Simmel, "but at the same time offers the seductive temptations to break through the barriers."5 Such an inclination is embodied in the spy, the Peeping Tom, the eavesdropper, and the like, who have become its symbols. "Surveillance" is the term which is generally applied to institutionalized intrusions into privacy. And social systems are characterizable in terms of the tension that exists between surveillant and anti-surveillant modes. Much of our literature on the anti-utopia, for example, George Orwell's 1984, which depicts the dis-eases of excessive surveillance, is directed against the former mode. But dangers of internal disorder reside in unconditional guarantees of invisibility against which many administrative arms of justice have aligned themselves. On the other hand, surveillance may itself create the disorder which it seeks to prevent. Where there are few structural provisions for privacy, social withdrawal is equivalent to "hiding." For Simmel, "This is the crudest and, externally, most radical manner of concealment"6 Where privacy is prohibited, man can only imagine separateness as an act of stealth.7 * Georg Simmel, "The Secret and the Secret Society," in Kurt Wolff (ed.), The Sociology of Georg Simmel (New York: Free Press, 1964), p. 334. "Ibid., p. 364.

'Ibid.

Since some provisions for taking leave of one another and for removing oneself from social observation are built into every establishment, an individual withdrawal into privacy and the allowance of such a withdrawal by other parties reflects and maintains the code that both sides adhere to. Leave taking, then, contains as many ritualistic demands as the act of coming together. Durkheim, like Romans, is not altogether correct in his insistence that the periodic gatherings of the group are its main sources of unity.8 After a certain point the presence of others 'becomes irritating and leave taking, which is a mutual agreement to part company, is no less a binding agent than the ritual of meeting. In both cases individual needs (for gregariousness and isolation) are expressed and fulfilled in collectively indorsed manners. The dissociation ritual presupposes (and sustains) the social relation. Rules governing privacy, then, if accepted by all parties, constitute a common bond providing for periodic suspensions of interaction. If privacy presupposes the existence of established social relations its employment may be considered as an index of solidarity. Weak social relationships, or relationships in the formative stage, cannot endure the strain of dissociation. By contrast, members of a stable social structure feel that it is not endangered by the maintenance of interpersonal boundaries. This point is of course well reflected in the Frostian dictum, "Good fences make good neighbors." PRIVACY HELPS MAINTAIN STATUS DIVISIONS

It is also well known that privacy both reflects and helps to maintain the status divisions of a group. In the armed forces, for example, the non-commissioned officer may reside in the same building as the dormitoried enlisted man but he will mamtain a separate room. The officer of higher * Ernie Durkheim, The Elementary forms of the Religious Life (Glencoe, HI.: Free Press, 1947), pp. 214-19.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIAL PSYCHOLOGY OF PRIVACY

143 743

rank will live apart from the non-commis- cial rank, for instance, derives perhaps not sioned, but on the same base, often in an only from his technical skill but also from apartment building; but officers of highest his authority to ignore barriers of privacy. status are more likely to have private quar- However, this prerogative is not limited to ters away from the military establishment. those of high status. We must not forget the In organizational life the privacy of the "non-person" who lacks the ability to chalupper rank is insured structurally; it is lenge the selfhood of his superiors. Goffman necessary to proceed through the lieutenant cites Mrs. Frances Trollope: "I had indeed stratum if the top level is to be reached. In frequent opportunities of observing this hacontrast, the lower rank, enjoying less con- bitual indifference to the presence of their trol over those who may have access to it, slaves. They talk to them, of their condifind then* privacy more easily invaded. Even tion, of then* faculties, of their conduct exin domestic life persons of the lower stratum actly as if they were incapable of hearing. lack "the butler" by means of whom the . . . A young lady displaying modesty berich exercise tight control over their accessi- fore white gentlemen was found lacing her bility to others. stays with the most perfect composure bePrivacy is an object of exchange. It is fore a Negro footman."11 In general society bought and sold in hospitals, transportation the assumption of the social invisibility of facilities, hotels, theaters, and, most con- another is looked upon as indecency, that spicuously, in public restrooms where a is, as a failure to erect a barrier of privacy dime will purchase a toilet, and a quarter, between self and other under prescribed a toilet, sink and mirror. In some public conditions. The general rule that is deducible from lavatories a free toilet is provided—without a door. all of this is that outside of the kinship Privacy has always been a luxury. Essay- group an extreme rank is conferred upon ist Phyllis McGinley writes: "The poor those for whom privacy shields are volunmight have to huddle together in cities for tarily removed. The prestige afforded the need's sake, and the frontiersman cling to physician is exaggerated in order to protect his neighbor for the sake of protection. But the self from the shame which ordinarily in each civilization, as it advanced, those accompanies a revelation of the body to a who could afford it chose the luxury of a stranger, particularly if he is of the opposite withdrawing place. Egyptians planned vine- sex. Likewise, the de-statusing of the servhung gardens, the Greeks had their porticos ant is necessary if he is to be utilized for and seaside villas, the Romans put enclo- purposes of bathing, dressing, etc. Persons of either high or low rank who sures around their patios. . . . Privacy was considered as worth striving for as hall- have access to the private concerns of then* marked silver or linen sheets for one's bed.'* clients are subject to definite obligations reIn this same respect Goffman comments garding both the manner hi which secret upon the lack of front and back region dif- knowledge is to be obtained and, most imferentiation in contemporary lower-class portantly, the way in which it is treated once it has been obtained. Explicit or imresidences.10 The ability to invade privacy is also re- plicit guarantees of confidentiality neutralflective of status. The physician's high so- ize the transfer of power which would otherwise accompany the bestowal of private • Phyllis McGinley, «A Lost Privilege," in Prov- information. Both the possession of an exince of the Heart (New York: viking Press, 1959), treme rank and the assurance of confidenp. 56. tiality thus legitimize the "need to know" 10 Erving Goffman, The Presentation of Self M and the intrusions which it makes possible. Everyday Life (Edinburgh: University of Edin»/«OCESSES

-AVOIDANCE

-TABOOS -COURTSHIP

0-OPENEO C-CLOSED

Figure 1 A framework of privacy regulation in relationship to culture.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

70

IRWIN ALTMAN

used to control access by others. When I wish to be alone, I close my door and thereby use the physical environment to shut myself off from others. Here the "closed" part of the physical environment circle predominates. When I wish to be accessible, I leave my door ajar, and the "open" part of the circle predominates. But there are people and cultures who do not use such a mechanism, which could mean that their "environmental circle" usually has the open section occupying the largest area. The model offered here states that, although they do not use that particular mechanism, they probably have other mechanisms that operate as part of a total privacy regulation system. The superimposed circle reflects the idea that we are dealing with a complex system of privacy regulation that can include a variety of combinations of mechanisms in the smaller circles and that operates as a holistic entity. In sum, I hypothesize that all cultures have evolved mechanisms by which members can regulate privacy, but that the particular pattern of mechanisms may differ across cultures. Thus, to examine privacy as a cross-cultural phenomenon, the level of analysis must be shifted from particular privacy behaviors to a more holistic, patternlike analysis.

ASSESSING THE CULTURAL UNIVERSALITY OF PHENOMENA In considering privacy as a cultural universal, one must realize that this is an area of long-standing concern and controversy among anthropologists and other cross-cultural researchers, and that there are many pitfalls and complexities associated with any search for universals (see Lonner, in press, for an analysis of this issue). For example, the perspective of cultural relativism states that each culture or group of cultures is unique and must be understood in its own right, not through imposition of the orientation of another culture. Thus, seeking universals may be an ethnocentric or "etic" flaw, and a culture's functioning may be misperceived by forcing on it another culture's perspective. (This, incidently, is a complaint often raised by minority cultures in the United States.) On the other side of the coin, a purely relativistic approach may ignore generic similarities among peoples, and there is value in searching for commonalities across cultures while still recognizing cultural uniqueness. Another issue concerns the levels of abstraction at which one describes universals. To say that all people eat, sleep, and procreate or that all cultures have such institutions as religions, families, and governance systems is to state what Lonner (Note

179

180

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

71

1) has termed "yawning truisms," which add little to our understanding. However, as some have suggested, one can proceed beyond the yawning truism level to examine the actual functioning of institutions and the behavioral dynamics of a particular social process within a theoretical framework, and thereby enhance the potential for learning about a process. To put the complexity of this issue in context, Lonner (in press) proposed a taxonomy of psychological universals that includes: (a) simple universals, for example, the universality of human sexuality; (b) variform universals, or simple universals that need to be viewed in a culturally relativistic way (somewhat like my approach to privacy); (c) functional universals, or interrelated behaviors that can have the same social consequences and that can be contrasted across cultures; (d) diachronic universals, such as basic processes of cognition and learning that are stable over time; (e) ethologically oriented universals, or behaviors with a biological link; (f) systematic behavioral universals, or theoretical and philosophical models (e.g., Freudian theory) that specify stages, forms, dynamics, and etiology of behavior in a systematic sense; and (g) cocktail party universals, or a priori, nonempirical, philosophical statements about human qualities. Before launching into an examination of privacy across cultures, it is important to recognize several problems with such an analysis. First, it is not easy to use ethnographic materials to verify or confirm the framework of this article. Many cultural descriptions are not sufficiently explicit and were not developed with our particular model of privacy in mind. Thus, there may be instances in which a culture is described as having "no privacy," examples are provided, and the situation is left at that. If we use such material are we to conclude that our hypothesis is invalid, and /or that it is not adequately testable because the ethnography may have been incomplete in its description of the total range of privacy regulation mechanisms? Another problem concerns the inferences one can legitimately make about the function of a particular behavior. Suppose that we describe a mechanism by which a given culture's participants make themselves more or less accessible to others. How are we to infer that these mechanisms are truly in the service of privacy regulation versus (or in addition to) serving religious, dominance, political, and other functions? Thus, labeling of behavioral events in terms of their meaning and significance can be a problem. Given the preceding comments and the framework of the present article, I am using two lines of approach to examine

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

72

IRWIN ALTMAN

privacy in a cross-cultural context: 1. Analyze extreme cases of privacy. Some cultures have been described as having either minimum privacy, its members apparently unable to keep from interacting with one another, or as having maximum privacy, with little contact among certain of its members. By considering each type of culture according to the logic of the preceding framework, I would expect to find compensatory mechanisms that modulate the apparent extreme instances of total privacy or total lack of privacy. 2. A nalyze social relationships. A second approach is to examine various processes that occur in the context of social relationships in a given culture (see the right side of Figure 1). This could involve an analysis of privacy mechanisms used by males and females, husbands and wives, in-laws, and so on, to facilitate openness and closedness. For example, if cultural circumstances forced a son-in-law and mother-in-law to have frequent and/or socially sensitive contacts, one might expect to find compensatory mechanisms that permit them to avoid one another in certain ways. Thus, an analysis of specific social bonds might reveal a network of mechanisms by which people regulate their contacts. A more systematic way to pursue this matter would be through the Human Relations Area Files or through systematic samples of cultures, such as Murdock's (1967) Ethnographic Atlas. One could, for example, tap into cultures through processes related to interaction, such as joking taboos, avoidance mechanisms, sleeping arrangements, and so on. By grouping societies as high or low or present or absent on a particular behavior, one could then compare how each type of culture operated according to other areas of social interaction relevant to privacy regulation.

CULTURAL EXAMPLES OF PRIVACY REGULATION

Cultures of Apparently Minimal Privacy The Mehinacu culture. Gregor and Roberts (Gregor, 1970, 1974; Roberts & Gregor, 1971) provided an excellent example of a dialectic, muhimechanism analysis of privacy in the Mehinacu Indians, a tribal group who reside in central Brazil. On the face of it, the Mehinacu have little privacy. In one village, five communal houses were located around a small circular plaza, so that everyone could be seen as they moved about. Furthermore, paths leading into the plaza were long and straight so that people could be observed at great distances. Villagers also recognized one another's footprints in the sandy paths around the village, and agricultural

181

182

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

73

fields were adjacent, so that everyone knew a great deal about others' whereabouts. Also, living arrangements were nonprivate because housing was communal, people entered their dwellings without announcing themselves, and the thatched walls of the structures had little sound reducing quality. Although there was little privacy in a traditional environmental sense, Roberts and Gregor observed that the Mehinacu had a variety of practices to regulate social interaction. For example, there were secret paths and clearings in the woods around the village that people used to escape from others; it was also permissible to leave the village for several days. Some people even had houses and gardens miles away, to which they retreated with their families for extended stays. In addition, there were sanctions against women entering the men's social and religious house, people did not enter others' residences without permission, and occupants of the same building did not intrude into other families' areas. There also were strong norms against exposing others' misconduct, people did not ask embarassing questions of one another, and lying was a regular practice used to avoid revealing information. An interesting facet of Mehinacu life was the practice of systematic isolation, which could encompass many years of a person's life. Seclusion began with the birth of a child, when the mother, father, and child remained behind a wooden partition in their living area for several weeks or months, especially if there were no other children in the family. The child continued to be secluded until about 1-1-1/2 years old and was rarely taken outside. The next period of isolation occurred when boys were 9 or 10 years old. They remained inside the home behind a wooden partition and rarely had contact with others, although they were able to leave the house after sundown. Food and bathing water were brought to them, and they urinated through a wooden tube pushed through the thatched wall of the dwelling. During this period, often lasting for 2 years, boys were taught to speak quietly, to refrain from play, and to avoid emotional displays. Girls had a similar period of isolation following their first menstruation. Other instances of isolation occurred on the death of a spouse or when men learned to become religious leaders. It was possible, theoretically, for Mehinacu villager to spend up to 8 years of life in seclusion. Roberts and Gregor interpreted this pattern of seclusion and openness in a dialectic fashion, compatible with the framework of the present article: The Mehinacu culture had evolved mecha-

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

74

IRWIN ALTMAN

nisms that permitted a balance of openness and closedness to others, with different mechanisms and different levels of accessibility shifting over time and with circumstances. Furthermore, this ethnographic analysis provides a good illustration of the value of conceptualizing privacy as involving a mixture of environmental, verbal, nonverbal, and cultural mechanisms. By focusing only on one aspect of life, such as environmental factors, one would have obtained a distorted view of the Mehinacu privacy regulation system. Gregor (1974) stated it well: Information on rules of privacy . . . may be buried in descriptions of etiquette, or must be inferred from the characteristic house type and settlement pattern. . . . The diffuse definition of relationships and the exposed settings characteristic of many primitive communities demands a different kind of ethnography; an ethnography sensitive to the delicate interplay of privacy and publicity which emerges from social conduct, (p. 348)

Javanese culture. Geertz (cited in Westin, 1967) described certain groups in the Javanese culture who also apparently had little physical privacy. Families lived in unfenced bamboo homes, house walls were thin and not tightly constructed, many homes did not have doors, outsiders freely wandered in and out, and people went from room to room without announcement. On the other hand, Geertz observed that people used a variety of mechanisms to regulate social exchange. For example, social contacts were restrained, people hid their emotional feelings, decorum was elaborate, people spoke softly, and, as Geertz put it, "Javanese shut people out with a wall of etiquette" (cited in Westin, 1967, p. 16). Thus, both Mehinacu and Javanese cultures exhibited the simultaneous presence of openness and closedness, as well as a mix of behavioral mechanisms for regulating privacy. Consistent with the thesis of this article, privacy regulation occurs in both the Mehinacu and Javanese societies as a dialectic process, and what differs between the two cultures is the particular blend of behavioral mechanisms used to control interaction. Pygmies of Zaire (the Congo). Turnbull (1961) provided a rich ethnography of the Pygmies of Zaire, who reside in the northeast corner of the Ituri Forest, a heavily vegetated rain forest. Pygmies, also known as the Ba Mbuti, are a communal hunting and gathering people who live in temporary camps and who reflect well some of the principles enunciated in the present article. For example, huts were constructed out of large leaves and were repaired and rearranged on a frequent basis. Turnbull noted that the arrival

183

184

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

75

of a new family or person in a camp might result in a door being moved from one side of the hut to the other, especially if the new arrival was disliked by the older resident. One could almost keep track of arguments, jealousies, and conflicts as the directions of the huts were rearranged. People also sometimes built "spite fences" between one another's huts during serious disagreements. While largely using environmental mechanisms, this ethnography demonstrates the dynamic quality of privacy regulation among a group of people who live in close contact and who otherwise seem to have little privacy in the traditional sense. As an example of the long term dialectic quality of privacy regulation, the Pygmies periodically separated into small family groups and lived apart from others for up to 2 months. Over time, Turnbull observed that they began to long for communal life and sought out larger encampments. It was as if the Pygmies oscillated between periods of separateness and togetherness, a cycle they followed year after year. Thus, a highly communal society that at one level seemed to have little ability to regulate privacy did, in fact, have behavioral mechanisms—some environmental, some involving long-term withdrawal—to regulate and pace the flow of their social interaction. Especially interesting from the perspective of the present article is the suggestion of a dialectic approach to privacy that not only involves the simultaneous presence of forces and mechanisms for being open and closed to others but also includes oscillating cycles of openness and closedness over longer periods of time. Woleia atoll. Consider an example from a completely different part of the world—a South Pacific atoll called Woleia, a 5 mile long by 2.5 mile wide island in the Western Caroline Islands (Alkire, 1968). The population of about 600 people engaged in agriculture and fishing and lived in a close communal setting with extensive face-to-face contacts. Alkire observed the presence of elaborate rules governing interaction, which he partially attributed to the pervasive contact among people and the resulting need to minimize heterosexual competition and jealousies. In our terms, it may be the privacy mechanisms in this culture served as a counterforce to the accessibility of people to one another. For example, in communal cleaning of villages, areas were separately assigned to men and women, and they never worked together; men and women did not dance with one another, nor were men with religious training allowed to eat with women. Furthermore, areas near canoes and the beach were off limits

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

76

IRWIN ALTMAN

to women, whereas interior paths on the island were considered women's areas; when a woman had to pass near a canoe house, she took as wide a detour as possible. Also, men could not bring religious items into homes, which were women's areas, nor was a man supposed to spend time at home during the day. And, men and women walking alone did not stop to talk with members of the opposite sex. Thus, it appears that the Woleia culture had a series of practices to control interaction among men and women, perhaps because of the extensive contact that might otherwise occur given the small size of the physical environment. Thus, we see side by side in a dialectic analog forces for and against openness and closedness, as well as a series of unique cultural mechanisms for regulating social interaction. There are other societies with apparently minimal privacy: The Ngadju Dayaks of Borneo (Miles, 1970), the Choco Indians of Panama (Faron, 1962), the IKung Bushmen of Southwest Africa (Draper, 1973). In each, close living arrangements are coupled with freedom to enter and exit easily from groups. Cultures with Apparently Maximum Privacy Balinese culture. Geertz (cited in Westin, 1967) described Balinese culture as seemingly characterized by maximum privacy, especially to outsiders. Families lived in houses surrounded by high walls, entrance ways to yards were through narrow doorways that weren't always open, and only family and close friends freely entered house yards. While this suggests an isolated existence, Geertz (cited in Westin, 1967, p. 7) noted "a tremendous warmth, humor [and] openness" among the Balinese, reflecting mechanisms to facilitate accessibility together with behaviors to restrict interaction. Tuareg culture. The Tuareg are a Moslem nomadic pastoral people who live in Northern Africa in tribal and subtribal groups of 50 to several hundred people. As Murphy (1964) noted, the Tuareg wore a sleeveless underrobe and a flowing outer garment that reached from the shoulder to the ankle, along with a turban and veil. Males dressed so that only their eyes were visible, since the veil and headdress covered the forehead and the area from the bridge of the nose over the rest of the face. The veil was worn continuously once a male reached adulthood, even when he ate and slept. As Murphy indicated, the veil was a literal boundary regulation mechanism and was adjusted and readjusted, however slightly, to reflect openness or closedness to others. Thus, the Tuareg veil serves as an important behavioral mechanism

185

186

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

77

used by people in this culture to control interaction with others and reflects well the dynamic and dialectic features of privacy management hypothesized in this article. Once again, these examples illustrate how privacy is a culturally pervasive process, if one views it as the presence of forces for people to make themselves more or less accessible to others. Yet, these examples also illustrate the cultural specificity of privacy regulation, with different behavioral mechanisms used by cultures to permit people to pace their interaction with one another.

SOCIAL RELATIONSHIPS AND SOCIAL PROCESSES The preceding section considered privacy regulation in individual cultures. As suggested earlier (see Figure 1), one can also examine specific social relationships, such as husbands and wives or in-laws. In this section we examine privacy in three types of bonds: (a) peripheral relationships, such as strangers and acquaintances; (b) more extensive bonds, such as in-laws; and (c) close relationships, between husbands and wives and parents and children. Relationships with Strangers, Acquaintances, and Neighbors The African Pygmies (Turnbull, 1961) had a symbiotic relationship with Bantu Negroes, an agricultural people with whom the Pygmies sometimes worked and traded. Whenever the Pygmies made a major meat kill, such as an elephant, the villagers came into the forest to join the feast. Because their customs demanded courtesy and sharing, the Pygmies permitted the villagers to stay as long as they desired although, after a time, the visitors became an irritant. To rid themselves of their unwanted guests, the pygmies engaged the Bantu Negroes in a gambling game at which the Pygmies were far superior; within a short time, the villagers were stripped of all their possessions and soon left the camp. This is a good example of privacy regulation, since there existed side by side cultural practices to increase social contact and another set of practices to reduce contact. Another example is from Paine (1970), who described the Lapps of Northern Europe, a reindeer herding people. In this society there was a norm that visitors could enter a tent without extensive preliminaries, sit down, and take part in the ongoing activities. The occupant could not refuse entry by visitors, yielding an apparent lack of control over privacy. Yet, mechanisms existed for closing off undesired contact. The occupant who felt negatively

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

78

IRWIN ALTMAN

about the visitor typically feigned falling asleep, which served as a signal that the visitor was unwanted. Thus, by virtue of their peculiar cultural circumstances, the Lapps closed themselves off from others in situations where cultural norms specified some initial mandatory openness. A more paced regulation of contact with strangers characterized various groups of Australian Aborigines (Peterson, 1975). Typically, messengers or visitors remained at the fringes of an encampment or community until an escort was sent out to receive them. In some instances the escort presented the visitor with a fire stick to symbolize a welcome, or there was a brief symbolic feinting and clash of shields and weapons to welcome the visitor. Thus, both visitors and occupants had a system to regulate interaction in advance of its occurrence, whereas the Lapps and Pygmies had to alter the pace of interaction following its initiation. Another type of relationship deals with interfamily contacts among neighbors or communal residents. For example, Anderson (1972) did a case study of Chinese families in Malaysia who lived in communal dwellings. While there was considerable contact and occasional tension, Anderson noted that families maintained separation by means of several cultural practices. These included strong taboos for entering (or even looking into) other families' sleeping areas, separate family storage areas and family stoves in various parts of the communal kitchen, clear status relationships among the elderly and young and between men and women, freedom for anyone to discipline children (with particular emphasis on punishment for invasions of privacy), and the maintenance of neutral and unemotional relationships with people from other families. Other instances of interfamily regulation of contact appear in the ethnographic descriptions presented earlier in this article. For example, Mehinacu families lived in communal dwellings but avoided entering others' areas; they also erected partitions during periods of seclusion (Gregor, 1970; Roberts & Gregor, 1971). The Ngadju Dayaks of Borneo (Miles, 1970) resided in multifamily units but maintained separate sleeping areas and possessions, ate at different times, and had strong norms against intrusion. In summary, an analysis of social relationships among strangers, acquaintances, or different family units suggests that when social contact is high or when certain interactions are forced, compensatory behavioral mechanisms are available that permit people to regulate their social contacts, to be open or closed as circumstances warrant. Again, these illustrations are compatible

187

188

The Individual and Privacy PRIVACY REGULATION

79

with our concept of privacy as a culturally pervasive dialectic process, with differences among cultures revolving around the specific mechanisms used to achieve desired levels of privacy. Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Relationships between In-laws

The practice of "in-law avoidance" has been of considerable interest to anthropologists and refers to the observation that a spouse's parents, especially mothers-in-law, are often treated with respect, circumspection, and even hostility. This seems particularly prevalent where couples live in close proximity to the parents-inlaw. One explanation for this phenomenon concerns avoidance of sexual, economic, and social exploitation that might occur among in-laws. In our framework, this practice might also be partly interpreted in terms of a dialectic process of privacy regulation. That is, because the relationship between in-laws is imposed by virture of a marriage, and because in-laws often have close and potentially emotion-laden contacts, one might expect to find compensatory mechanisms permitting them to reduce and/or defuse their contacts. The Yuma Indians of southeastern California exhibited in-law avoidance in the form of minimal joking between a man and his mother-in-law and infrequent positive emotional expressions, including absence of hugging, kissing, or exhibition of good feeling (Bee, 1963). A somewhat different way of avoiding contact with in-laws occurs among certain rural groups in Thailand (Tambiah, 1969). Here, newly married couples lived with the wife's parents, and a rigid arrangement of living circumstances regulated contact between a man and his mother-in-law. For example, a son-in-law was not allowed to enter the dwelling through the doorway of his parents-in-law; once in the dwelling he was forbidden to enter their sleeping area. The son-in-law also slept in a remote corner, with his wife and father-in-law separating him from his mother-inlaw. As another example, consider again the Mehinacu (Gregor, 1974). In-laws could not touch one another's sleeping hammock; they avoided meeting in the entranceway to their communal home; they stepped aside when meeting one another on a public path; they averted their eyes from one another; they never mentioned each other's names; they spoke only briefly about important issues; and a new son-in-law spoke to his father-in-law only through his wife. Thus, among the close living Mehinacu, as with the other cultures, there is a clearcut series of mechanisms for regulating contact between in-laws, which may serve to compensate

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

80

IRWIN ALTMAN

for their newly appearing physical and psychological proximity. LeVine (1962) described another type of avoidance phenomenon—between co-wives in three polygamous African societies, the Gusii, the Kipsigis, and the Luo. These cultures had different living arrangements among the co-wives, from close proximity to considerable separation. Among the Luo, wives' homes were quite close and the women shared a common yard. Gusii wives lived in adjacent dwellings, but they often had fences separating their huts and had their own gardens and cattle pens. Kipsigis women lived at a distance from one another and had little day to day contact. LeVine noted that the often jealous and hostile relationship between co-wives was reflected in mutual accusations of witchcraft and sorcery. He confirmed the hypothesis that the closer co-wives lived to one another, the greater the attributions they made about each other's sorcery and witchcraft powers—an avoidance process that resulted in less contact between those living close to one another. Once again, the greater the forced contact between in-laws or those in analogous relationships, the more prevalent the mechanisms by which avoidance was achieved. (Naturally, it is recognized that co-wife competition may derive from sexual or inheritance competition and not exclusively from privacy regulation.) Other examples of in-law avoidance appear in cross-cultural analyses. For example, Murdock (1971) examined mother-in-law avoidance in 89 societies selected as being representative of world cultures. His analysis of son-in-law, mother-in-law, daughter-inlaw, and father-in-law relationships suggested widespread occurrence of respect, formality, absence of joking, and avoidance of parents-in-law. In general, then, a variety of instances suggest the simultaneous presence of contact—almost forced by the relationship itself—and noncontact between in-laws. As stated, the particular mechanisms by which contact is modulated seem to be unique to cultures and involve different combinations of environmental, verbal, and nonverbal mechanisms. Relationships within Families Whiting, Kluckhohn, and Anthony (1958) undertook a crosscultural analysis of relationships among family members in an attempt to track factors associated with adolescent initiation rituals. They hypothesized that these rites occurred in societies where boys were especially dependent on their mothers and that one function of the rites was to break the maternal bond and to increase the boy's identification with the male role. An analysis

189

790

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

81

of about 50 societies indicated that cultures with initiation rites were frequently those in which a young boy slept alone with his mother for at least a year. In addition, these societies often had restrictions on parental sexual behavior for at least a year after childbirth. Therefore, cultures with high social contact between a mother and a young child also had mechanisms to break off that contact in later years, yielding a long term dialectic balance of mother-child and father-child interaction. Consider an example provided by Whiting, Kluckhohn, and Anthony (1958): Among the Kwama people of New Guinea, the child remained close to the mother, slept in the mother's arms, and was nursed for 2 to 3 years. The child was also held by the mother all day, the father slept separately on his own bed, and the parents did not engage in sexual intercourse during this period. But, this changed abruptly at the time of weaning, when the child was put in his own bed, the parents slept together and engaged in intercourse in the same room as the child, and the mother no longer held the child. Thus, in a longitudinal sense, we see a cycle of high contact followed by low contact between a mother and child and, presumably, the reverse pattern between a boy and his father or other males. One final example involves husbands and wives in the Mehinacu culture (Gregor, 1974). Among these people a married couple employed a delicate set of behavioral mechanisms to reflect their changing closeness and distance. For example, they publicly bathed together several times a day; if this did not happen, it was a clue to marital difficulties. Also, if a couple did not walk side by side others assumed some conflict between them. Another mechanism involved the position of their sleeping hammocks in the communal residence. Typically, a husband and wife hung their hammocks from the same pole, with the husband's hammock slightly higher, and with their heads only a few inches apart, indicating an intimate relationship. If they mounted their hammocks on different poles and slept several feet apart, this suggested a degree of estrangement. Similarly, if they ate from a common bowl, their bond was close; if not, it was a signal of a marital rift. Thus, the Mehinacu couple used a variety of behavioral mechanisms to pace and regulate the closeness of their interaction, to portray to each other and to the community the changing quality of their bond. From these examples of interaction between parents and children and between husbands and wives we see behavioral practices compatible with the framework of this chapter. Cultures

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

82

IRWIN ALTMAN

seem to have developed universally a variety of mechanisms for regulating interaction between strangers, acquaintances, in-laws, or family members. These mechanisms enable people to shut themselves off from others or to be accessible to others. Also, these privacy regulation mechanisms can operate in temporal simultaneity, as in the case of the Mehinacu husband and wife, or they can function over longer cyclical periods, as in the relationship between the mother, father, and child in the Kwama culture. And, to reiterate another theme, privacy is controlled by a variety of behavioral mechanisms that may be culturally unique and adapted to the particular circumstances of a society.

A CONCLUDING COMMENT This article has presented a heuristic analysis of privacy in relationship to culture. I propose a framework emphasizing dialectic and boundary control features of privacy, whereby people can make themselves accessible or inaccessible to others. Furthermore, I suggest that privacy regulation involves more than use of the physical environment alone, but includes a variety of verbal, nonverbal, environmental, and cultural mechanisms. Thus, I conceptualize privacy as a complex and molar phenomenon that requires a broader perspective than it has received in the past. In pursuing this line of reasoning, I have also speculated about the cultural pervasiveness of privacy regulation. It seems that the ability to regulate interaction is necessary for individual and cultural survival, and unless people have figured out ways to control interaction, their status as intact human beings can well be in jeopardy. However, to simply posit that privacy is a cultural universal does not say very much, so I have suggested that (a) people in all cultures engage in the regulation of social interaction—sometimes being accessible to others and sometimes being inaccessible to others, and (b) the behavioral mechanisms by which accessibility is controlled are probably unique to the particular physical, psychological, and social circumstances of a culture. I then explored these points through an analysis of cultures with apparently maximum and minimum privacy and through an analysis of various relationships, for example, acquaintances, in-laws, and family members. There are many difficulties with the analysis I have proposed, including the possibilities of selective bias in case selection, imposition of an ethnocentric frame of reference on other cultures, nonrepresentativeness bf cases, incomplete ethnographies, and

191

192

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

PRIVACY REGULATION

83

inaccurate labeling of cultural practices. In spite of these potential hazards, this line of analysis seems worth pursuing further, for it sheds an interesting light on the concept of privacy as a social psychological process, not only in relation to cultural phenomena but also in a way that is not readily achieved in traditional social psychological research settings. REFERENCE NOTE 1. Lonner, W. J. Personal communication, 1976. REFERENCES

Alkire, W. H. Porpoises and taro. Ethnology, 1968, 7, 280-290. Altman, I. The environment and social behavior: Privacy, personal space, territory and crowding. Monterey, CA.: Brooks/Cole, 1975. Anderson, E. N., Jr. Some Chinese methods of dealing with crowding. Urban Anthropology, 1972, /, 141-150. Bee,R. L. Changes in Yuma social organization. Ethnology, 1963,2, 207-227. Draper, P. Crowding among hunter-gathers: The IKung Bushmen. Science,

1973, 182, 301-303.

Faron, L. C. Marriage, residence, and domestic groups among the Panamanian Choco. Ethnology, 1962, 1, 13-38. Gregor, T. A. Exposure and seclusion: A study of institutionalized isolation among the Mehinacu Indians of Brazil. Ethnology, 1970, 9, 234-250. Gregor, T. A. Publicity, privacy, and Mehinacu marriage. Ethnology, 1974, 13, 333-349. LeVine, R. A. Witchcraft and co-wife proximity in southwestern Kenya. Ethnology, 1962, 1, 39-45. Lonner, W. J. The search for psychological universals. In H. C. Triandis (Ed.), Handbook of cross-cultural psychology. Boston: Allyn & Bacon, in press. Miles, D. The Ngadju Dayaks of Central Kalimantan, with special reference to the Upper Mentaya. Behavior Science Notes, 1970, 5, 291-319. Murdock, G. P. Ethnographic atlas. Pittsburgh, PA.: University of Pittsburgh Press, 1967. Murdock, G. P. Cross-sex patterns of kin behavior. Ethnology, 1971, W, 359-368. Murphy, R. F. Social distance and the veil. American Anthropologist, 1964, 66, 1257-1274. Paine, R. Lappish decisions, partnerships, information management, and sanctions—A nomadic pastoral adaptation. Ethnology, 1970, 9, 52-67. Peterson, N. Hunter-gatherer territoriality: The perspective from Australia. American Anthropologist, 1975, 77, 53-68. Proshansky, H., Ittelson, W. H., & Rivlin, L. G. (Eds.). Environmental psychology. New York: Holt, Rinehart & Winston, 1970. Roberts, J. M., & Gregor, T. A. Privacy: A cultural view. In J. R. Pennock & J. W. Chapman (Eds.), Privacy. New York: Atherton Press, 1971. Rychlak, J. F. The multiple meanings of dialectic. In J. F. Rychlak (Ed.), Dialectic: Humanistic rationale for behavior and development. New York: Basel, 1976.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

84

IRWIN ALTMAN

Seligman, M. E. P. Helplessness: On depression, development, and death. San Francisco: Freeman, 1975. Tambiah, S. J. Animals are good to think and good to prohibit. Ethnology, 1969, 8, 423-460. Turnbull, C. M. The forest people: A study of the Pygmies of the Congo. New York: Simon & Schuster, 1961. Westin, A. Privacy and freedom. New York: Atheneum, 1967. White, R. W. Motivation reconsidered: The concept of competence. Psychological Review, 1959, 66, 297-333. Whiting, J. W. M., Kluckhohn, R., & Anthony, A. The function of Male initiation ceremonies at puberty, in E. E. Maccoby, T. M. Newcomb, & E. L. Hartley (Eds.), Readings in social psychology. New York: Holt, 1958.

193

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

This page intentionally left blank

[10] The socio-legal context of privacy1

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Philip LeMi Professor of Law, School of Law, Queen's University, Belfast

Abstract

Privacy rights an growing apace, as can be seen from a continuing stream of judgments from UK and European courts, the rise of special interest privacy groups and other institutions tasked to protect privacy. Privacy has - its proponents suggest - at last arrived as a fully fledged legal right However, despite these advancements, I suggest that privacy is becoming less prevalent in society; primarily because of technological and cultural changes, but also because the technical legal implementation of privacy is highly problematic. In this article it is argued that this seeming paradox should be more critically examined by socio-legal researchers who, to date, have done little to test the assertions and assumptions of the privacy lobby. This article maintains that there is a need for more investigation of the basis and assumptions behind data protection and privacy law and that a more robust analysis of the claims and rhetoric for these rights will change our attitudes towards privacy developments. The sociological conception that "underlying all social interaction there seems to be afundamental dialectic' will be used to undermine the legal notion of privacy as an individualistic fundamental right'.

i. A socio-legal approach to privacy? Can there be a socio-legal approach to the study of 'privacy'? Or is there a contradiction in sociological terms when we discuss a stand-alone 'legal right' of privacy? Surely, the very notion of 'sociological' means that an individualistic concept such as the 'right to be left alone' must be a target of attack from socio-legal researchers? This ankle takes this latter position: it argues that, for several reasons, privacy as a legal right is highly problematic even though we have arrived at a European position where it is judicially more venerated than the right to receive information.2 What are these reasons? • first, that the currently developing legal concept of privacy denies a social and interactive context to information; • second, that the technological, commercial and governmental environment has so radically changed with digitisation that many expectations of privacy are redundant; and • third, that legislation and judicial interpretation - when aimed at protecting privacy as, for example, in data protection law - usually misses its mark due to a combination of the first two reasons. There has, of course, been very much written on privacy within the past century, but there has been little in the legal or governmental sphere which has taken a sociological (by which I mean a 'detached' and 'analytical') approach to the nature of information.3 Sociologists have certainly looked to I 2

3

This paper was has been developed from both a presentation given at the AHRB Privacy and Technology Workshop, Edinburgh, September 2005 and the author's inaugural lecture. I suggest this below in discussion of the Law Lords in Campbell. I realise that many in the field will not agree with this, but the reader of the research will find an assumption that the task of the researcher is to improve privacy - evidence by for example, a 'signing of a document' by conference attendees attesting their 'abiding commitment to their use of protective measures and technologies'. See Bennett and Grant (1999, p. viii).

196

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

106

PHILIP LEITH

notions of privacy: an early example is Harrington Moore, who took a social evolutionary approach and suggested that few of the cultural subjects of his study evidenced a complete lack of conception of private, but emphasised that ultimately, 'Privacy cannot be the dominant value in any society. Man has to live in society, and social concerns have to take precedence' (Moore, 1984, p. 274). Contrary to Moore's view, though, the current European legal framing of the debate sets privacy as a reified concept the existence of which can be explained through a combination of individual psychological need4 and individual (fundamental) right. In this framing, the social nature is ignored and we are left with a rhetoric which argues that, for example, the rights of a patient to control their medical information (through 'consent') should almost always take precedence over other rights. Much of this rhetoric does not accurately show the actual effect of the legal framing of privacy (as we examine below) but it can have a powerful effect upon legislator, judge and litigant This 'individualistic' approach is problematical: it leads us to attempt the development of a pathological society in a Durkheimian sense - in which social benefit is forever playing second riddle to individual desire, and it further leads to legal reasoning which must - to accord with the rhetoric of the legislature involve complex legal fictions. I will argue in favour of Moore's denial of privacy as a dominant value: further, that a theory of self and society is an essential requirement of any coherent and critical legal understanding of the nature of privacy. That is, that if we are to begin to develop a socio-legal theory of privacy, we need a socio-legal framework to set properly rights to privacy 'in balance' with other competing - and frequently more important - rights. Generally, there is clear indication that a sociological approach is relevant to a period of technological change where private lives appear to be under constant surveillance, discussion in the press, data collection and processing. For example, C Wright Mills' argument (Mills, 1959) for the utility of sociological approaches almost appears to have been written as an introduction to the study of privacy and technical change.5 We can look at any of the myriad of texts produced on the loss of privacy over the past 45 years since Mills wrote his piece and see the sense of entrapment which is at the heart of 'the privacy problem'. Interestingly, though, these texts also attempt to marshal arms and persuade the reader to fight back against the forces which transcend their immediate locale. For example, Garfinkel - using what has become the de facto 'approach' - builds up the pessimistic picture of the individual oppressed by surveillance and data collection, but then optimistically argues that we can indeed control the invasion: 'Privacy is certainly on the ropes in America today, but so was the environment in 1969... There are signs around us indicating that privacy is getting ready to make a comeback as well. The war against privacy is commanding more and more attention in print, on television, and on the Internet.' (Garfinkel, 2000, p. 9) Often the agency which is seen as the opponent of privacy is the state. The US, with a populist antigovernment philosophy, has seen many of these texts published - Davis's "Unbridled Power: inside the secret culture of the IRS' (Davis 1997) says it all in the title. Senator Edward Long's The Intruders'* 4

The literature of psychology - unlike that of law - is well stocked with analysis of privacy/secrecy/ interaction. For analysis in unspoken behaviours See, e.g., dePaulo (1991).

5

'Nowadays men often feel that their private lives are a series of traps. They sense that within their everyday worlds, they cannot overcome their troubles, and in this feeling, they are often quite correct What ordinary men are directly aware of and what they try to do are bounded by the private orbits in which they live; their visions and their powers are limited to the close-up scenes of job, family, neighborhood; in other milieux, they move vicariously and remain spectators. And the more aware they become, however vaguely, of ambitions and of threats which transcend their immediate locales, the more trapped they seem to feel.'

6

This carries a quote from Vance Packard: 'An illuminating, startling and highly readable book by the man who has done more than any other public official to combat unreasonable snooping in American life.'

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

197 107

(Long, 1966) arose from a Senate Subcommittee investigation on surveillance including the surveillance industry. (The two demonstrators - both were moonlighting schoolteachers - could not know that their every move was being observed by a federal agent. Nor could they guess that outside the market, five more such agents were gathered around a car radio, listening to the conversation.' p. 3.) Less populist texts also look with that same perspective of highlighting the problem and then proposing that 'something must/can be done'. These approaches highlight the attack on privacy and all, to differing degrees, suggest that we can reclaim this lost sphere through both individual and concerted action. Since terrorism took centre stage, the state and its desire for more intrusive methods of averting, rather than simply solving, crime have certainly figured more highly in the public debate.7 The fear is of the absolute state peering into every comer of life, mirroring the absolute monarch: Louis XIV's advice to his heir, albeit the modern approach is less concerned with court society: The art of governing is not at all difficult or unpleasant. It consists simply in knowing the real thoughts of all the princes in Europe, knowing everything that people try to conceal from us, their secrets, and keeping close watch over them'8 (Elias, 1982, p. 197). It is not just the state which is seen as problematic commercial firms too are viewed as destroyers of privacy in their quest for more and more information on their customers.9 In the UK, for example, dumkumby, a subsidiary of the Tesco supermarket chain, has set up a database collecting data on every household in the UK which is then sold on to other large commercial firms: ' "It contains details of every consumer in the UK at their home address across a range of demographic, socio-economic and lifestyle characteristics," says the marketing blurb.... It has "added intelligent profiling and targeting" to its data through a software system called Zodiac. This profiling can rank your enthusiasm for promotions, your brand loyalty, whether you are a "creature of habit" and when you prefer to shop. As the blurb puts it: "The list is endless if you know what you are looking for".'10 Most of the critical texts which have highlighted the attack on the individual's privacy have had little effect on what they see as the problem. Others have had significant effect: for example, Alan Westin's Databanks in a Free Society (Westin, 1974) and his Privacy and Freedom (Westin, 1967) both acted as studies and definitions of 'the problem' and also helped produce defensive approaches" which have become formalised in data protection law through Europe." Set against privacy is the

7

The list of legislation and proposed legislation is large indeed, including the Patriot Act in the US and the Regulation of Investigatory Powers Act in the UK, as well the generally increased funding of systems which target private communication via technical means.

8

But note that Louis XIV himself had little personal or spatial privacy - from rising to retiring his entire life was acted out as part of courtly life.

9

The current focus is on RFID technology where a small chip on each item can show location even when outwith the premises from which it was purchased.

10

The Guardian, 20 September 2005. The Data Protection Register entry for dunnhumby describes the purpose of its information handling to be Trading/Sharing in Personal Information' and The sale, hire or exchange of personal information'.

ir

For example: 'Westin's work in general, and Privacy and Freedom in particular, have shaped virtually all current thinking about privacy as public issue. Indeed, other than Ralph Nader, no figure comes to mind who has so decisively shaped the public view on any current issue' (Rule, 1980, p. 73).

12

The US does has a privacy law - the Privacy Act of 1974 5 U.S.C § 5523 - which relates to security of government held personal data and criminalises misuse of this, but it is of much narrower focus than that of Europe. The development of "Safe Harbor1 agreements shows the difference in expectations between the two systems. The Fair Credit Reporting Act 15 U.S.G also offers protection through criminalising certain activities relating to credit information.

198

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

108

PHILIP LEITH

technology which has concerned the authors so much: an ever reducing cost of storage13 and the merging of telephony and computing into telecommunications.14 The world has been changed by an electronic technology which has dramatically affected communication in so many ways - from the rise of the culture of celebrity, mass media and its hunger for copy/programming, data mining of customer information, stored health information becoming more personalised and detailed, surveillance systems from CCTV to Carnivore,'5 etc. It is this kind of'attack' on privacy - that of 'informational privacy" as it has come to be known16 which is of concern here, though clearly the wider conceptions of 'privacy* which have appeared in US case law and relate to rights to abortion, contraception etc. are also of interest to socio-legal study. Discussion of the more extensive concept of privacy will be set aside for the more coherent, tractable notion of'informational privacy'. How might this informational privacy be perceived by a socio-legal theory? It is clear that sociological approaches are highly relevant in a number of ways. For example: - Privacy concerns interpersonal relationships (sometimes one-to-one, sometimes one-to-many) and how they combine into larger societal relationships. For example, the relationship between a doctor and his patient may be one-to-one or it may involve family members; and wider, it may involve questions of public interest such as disease transmission or epidemiological study. - Privacy is about the physical/psychological relationship between self and society since notions of the self involve spatial separateness between self and the wider society. For example, the oft quoted definition of privacy as the right to be left alone is one which defines self as an individual entity which can be removed from that wider society. - Privacy is about power, authority and role in society. History shows that those with most power have usually enjoyed privacy the most and those with least power (welfare recipients, perhaps17) have enjoyed it least. We see, for example, privacy used in many ways to protect authority whether political, artistic as in the celebrity system, or where status is maintained through a staged setting where the private and the public rarely deliberately meet (the British royal family, perhaps). These are so often the very issues which are at the heart of notions of privacy and thus clearly there is some utility in teasing out conceptions of privacy and applying the critical focus which sociological insight offers.

2. Privacy v. Goffman's dialectic A sociological perspective cannot simply point to one actor's viewpoint and suggest that this is the correct interpretation. A social phenomenon is clearly one which is perceived by at least two and usually many more actors. To the sociologist the claim to privacy is a claim being made by one actor or group of actors in concert (e.g. secret societies such as Masonic lodges) and must also be 13

In 1956 the purchase cost per Mb of storage was $ 10,000. Currently, cost is about 30 cents per Gb (equivalent to 1024 Mb). Thus storage costs were 34 million times more expensive when data processing first became a useful technology even before inflation is considered.

14

This occurred in the 19705 but it was the 19905 before widespread public access via ISPs was available.

15

Carnivore is an FBI technology which sits on the internet and listens in to traffic. The court order allowing this to be installed on ISP systems specified criminal investigation but clearly such a system is open to wider usage than surveillance of only specified email addresses. Documents related to this system are available at www.epic.org.

16

'Informational privacy1 has become the common term to describe the desire to keep private details such as purchase information, credit ratings, etc.

17

Gillion (2001) examines welfare processing and the recipients' attempt to fight back against the state removal of privacy in return for social welfare support ('You have to watch every step like you are in prison. All the time you are on welfare, yeah, you are in prison.' p. i).

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

199 109

understood within the context of those against whom the claim to privacy is being made. These privacy issues are of the nature of legal policy just as much as they are issues of technical legal interpretation. While legal policy issues are much to be found in the literature of new technology,18 the typical legal academic's article proposing privacy rarely looks with much social insight behind the case law, concentrating more upon technical implementation.19 For an example of this, we look at Phillipson below. Also of recent interest in this approach is Hector McQueen's persuasive argument that privacy can be protected via copyright in speech (McQueen, 2005), but McQueen does not provide a policy argument as to why privacy should be so protected through this mechanism. Markesenis, in the foreword to his edited Protecting Privacy (Markesenis, 1999) similarly gives little space to the arguments for or against privacy when he suggests: the [Human Rights Bill] will also, we hope, give impetus to our courts to develop, incrementally but steadily, our patchy law of privacy.' When policy arguments are to be found, they are frequently of arguable quality: for example, the recycling of Mr Warren's sister which we look at below. There is clearly an excuse for this limited technical approach since legislation has given us 'privacy* as a legal concept - indeed it is now a 'fundamental right'.20 However, we have arrived at a point where European law recognises privacy in a confused manner because a perspective has developed that privacy is 'a good thing* rather than we have a clear notion of what it is: the literature of the field has followed the pro-privacy model, asserting that we are under more and more surveillance or have lost more and more privacy and need to attend to the problem rather than providing detailed solutions for each element which constitutes the indefinable notion of 'privacy". It may be - as I suggest - that the solutions proposed by this rhetoric are not effective and that the rhetoric of fundamental privacy rights has developed from a rather one-sided debate which ignores the deeper evidence of the value of social communication. It is a rhetoric which is very widely utilised. For example, in the 2000 US Presidential elections:21 • Bush stated: 'I believe privacy is a fundamental right, and that every American should have absolute control over his or her personal information.' • Gore similarly suggested:'... I have called for an Electronic Bill of Rights for this electronic age. It includes the right to choose whether personal information is disclosed; the right to know how, when, and how much of that information is being used; the right to see it yourself; and the right to know if it's accurate.' • And, unsurprisingly, Nader was most aggressive in the promotion of rights to control over data: 'We should support the human right to privacy over corporations' desire to trade information.' While the well-meaning beliefs of Presidential candidates may be held by many, the reality of personal information handling is somewhat different: it is different because there is always at least one more party at the privacy table; and that party has rights, too. It should not be a surprise to the socio-legal community that, just as someone may have desire to hide information, others have similar desire to collect information - and these desires are frequently persuasive and reasonable. In the most basic of interactions, for example, Goffman has clearly described how communication is always a manoeuvre between parties where one or both are attempting to present a certain image of themselves (their 'self) and others are testing that image against other factors and information: 18

See for example, Agre (1997).

19

Lawyers who have looked more critically at policy issues in privacy include Colin Tapper who, in early editions of his Computer Law (Tapper, 1989) was taking a sceptical stance on the 'conventional wisdom and fallacies' of the argument for privacy. Tapper was legally viewing the problem from a technologically expert perspective.

20

Case law began with National Panasonic (UK) Ltd v EC Commission Case 136/79 [1980] ECR 2033.

21

Edited from '3 statements by Presidential Candidates,' at http://www.cptech.org.

The Individual and Privacy

200

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

IIO

PHILIP LBITH

'Underlying all social interaction there seems to be a fundamental dialectic. When one individual enters the presence of others, he will want to discover the facts of the situation. Were he to possess this information, he could know, and make allowances for, what will come to happen and he could give the others present as much of their due as is consistent with his enlightened self-interest To uncover fully the factual nature of the situation, it would be necessary for the individual to know all the relevant social data about the others.' (Goffman, 1956, p. 249) Goffman's dialectic provides the basis for the building of trust relationships. We need to test the definition of self which someone is attempting to present against our measure of that self - so that, for example, we can enter a trusting relationship. Of course, the dialectic is also competitive in the same way that human interaction is competitive but this does not mean that trust is not a primary issue. Trust incorporates knowing how one can behave with that other,22 and how that other will view one's self. A relationship of this kind is not necessarily of marriage quality - it can include that between the celebrity who wants us to trust him as a family loving, clean-living sportsman and we who are prepared (depending upon evidence in the media and/or their ability to gain an injunction) to view them either aligned with his own public self definition or as an overpaid and anti-social fomicator, or somewhere in between. Goffman was particularly interested in face to face interaction,23 but it can be seen that this interaction is evident in all social (e.g. bureaucratic, commercial, fan/celebrity) interactions. It develops a picture of the demand for privacy as part of an ongoing social relationship (attempting to control perception) rather than a fundamental right. It provides - on my reading - the context for reading the privacy/freedom of expression debate. In this article I will not move much beyond this simple assertion of Goffman whose many sociological critics will, I presume, find this a non-controversial position. Extending use of Goffman (in a developed socio-legal theory) would be more controversial, however, and it is sufficient to note that in my reading of Goffman he is much more critical and subversive than is often supposed - in, for example, implicit description of power relationships. In a world where everyone had Bush's suggested total control over their information, we could have no real trust One would be given only the information which that individual felt was useful to their own enlightened self-interest and nothing more. We could not test that information and must automatically suspect it since it is not testable. Trust is, as Simmel has suggested, 'one of the most important synthetic forces within society' (Simmel, 1950, p. 326). It is not just in interpersonal relationships that we need to test information. In the larger political environment it is necessary, too, where trust can be seen to break down when one side is too easily able to control the information being placed into the debate. For example, trust issues had grown during the Labour government's term in office to such an extent that the Phillis Report was commissioned to look into the trust relationship between government, press and public (Phillis, 2004). Overall, the thrust of Phillis was openness, not secrecy; more direct, unmediated communications to the public; genuine engagement with the public as part of policy formation and delivery, not communication as an afterthought; positive presentation of government policies and achievements, not misleading spun. These are the underlying elements of freedom of information: that we trust more when we are given accurate and testable information. Yet, for some reason, when we move to the rhetoric of the individual we ignore this methodology for increasing trust, and we give voice to individual fundamental rights which would effectively - if indeed they were effective - undermine the possibility of trust being created hi a relationship. 22 23

An outsider to Northern Ireland - even in a period of 'peace' - quickly finds that knowledge of religious background is an essential element of this dialectic: the two sides have such different perspectives that to avoid embarrassment one must know to whom you are talking. But see also his analysis of male/female roles in advertising photography in Goffman (1979).

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

201 III

Of course, the critic will say that the situation for the individual is more difficult than for government and that expectations of how government will behave must be different from how the individual behaves and is treated. This argument suggests that it is the relative lack of power in the relationship which is important and why informational control rights must be given to the individual. The power balance is certainly not in favour of the individual, but it appears to me that this is irrelevant - the issue of trust occurs constantly in person-to-person, person-to-group, personto-business, group-to-person and group-to-group interactions that it is the leading requirement for a normal, working social relationship. Even the lone survivalist living in a cave has trust issues with the population around him: Is he safe? Is he armed? Is he stealing chickens from me? etc. Without trust - which is an outcome of information-seeking behaviour - all social relationships will be fractured and pathological Yet trust-building, information-seeking behaviour is antithetical to privacy: privacy denies the right to seek information. Further, a dialectic approach is not just about trust issues, it is about providing insight into a more active notion of'the private': that is privacy as a social process. For example, Gary Marx (2003) has used a Goffmanesque analysis to demonstrate tactics which can be used to resist 'the new surveillance', which he calls, for example, discovery moves, avoidance moves, piggybacking moves, etc. The writing of those opposed to government surveillance and data collection normally view the citizen as a passive actor, whereas when one takes a more process-oriented view, the evidence shows that this is a limited view. One small example from research into provision of legal information is useful: asked whether farmers would approach government for legal advice, it was suggested they were 'afraid to ring government departments in case they invoke inspections from that department or other departments' (Leith, 20O4).24 We see these kinds of tactics in many citizen/government interactions. As is well accepted in the literature, privacy advocates have found it extremely difficult to define informational privacy. Lord Woolf, for example, suggested in A v. B25 that: 'In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection.' This is reminiscent of the Principia Mathematics (Whitehead, 1910) definition of implication by means of negation - that is, accepting that a central concept of the system is so confusing that we need to redefine it by more reliable means.26 Notions of privacy are consistently found to be redefined in this manner: sometimes 'intrusion' is seen to be the concept which reflects loss of privacy, but such a value-loaded term assumes a loss of privacy before it can be utilised. Furthermore, there are deep cultural differences between European countries as to what should be private: Lloyd notes that in Sweden a publication can be purchased which contains: a 'name, address and a string of numbers... the digits represent the subject's declared income for the tax year in question' (Lloyd, 2004, p. 45). There is also little international governmental agreement over what role is required to 'protect privacy1 as evidenced by the problem of'Safe Harbors' for cross-border data traffic, where the US approach views it as a problem for individual commercial entities, and where Europe views it as one for centralised regulation.27 And, further, though not something which will be dealt with here, is the confusing relationship between private information and ownership of that 24

Also see GilHon, note 17.

25

A n B [2002] EWCA Civ 337, [2003] QB 195.

26

Russell and Whitehead were trying to produce a logical foundation to mathematics. The project was - as Russell later accepted - impossible. 'Implication' is mathematically, logically and philosophically very important since it is about 'if... then...' causal types of relationship.

27

For a useful overview from the US see Regan (2003) and Poullet (2000), who has - agreeing with most European commentators - 'seriousreservations'about the protection being offered.

The Individual and Privacy

202

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

112

PHILIP LEIT1I

information28 where privacy rights, freedom of expression rights and property rights conflate and confuse in each individual jurisdiction. So how can we define 'privacy' socio-legally? Clearly, we cannot define it as a singular right without always involving other factors: a definition which suggests that "being left alone' is even partially sufficient cannot be useful because it only looks to one side of the social relationship which Goffman - and indeed, Mead (1934) - has earlier highlighted. It might be suggested that "balance" is needed: that we need to balance privacy rights against, for example, freedom of expression rights. But "balance' is a problematic concept and one which lawyers frequently tend to use to gloss over difficulties, suggesting that it will be alright in court on the day.29 'Balance' doesn't help us sociolegally by clarifying any of the matters which socio-legal investigators might be interested in, it just moves the problem of definition elsewhere. 'Balance' is also often found discussed in the literature of privacy. For example, Raab (1999) outlines the problems with the concept and then suggests that what is really need instead is 'steering1 - 'some combination of regulation and self-regulation, along with better public education and the availability of privacy-enhancing technologies may succeed in steering towards privacy protection'.30 We may assume that if even strong advocates like Raab find balance a difficult concept we should not see the balancing of rights as an easy task. In the next section the practical difficulties of balance are demonstrated. Following that, I argue that Raab's goal of privacy protection is most likely much more distant than he would prefer by looking to whether privacy and data protection have actually been well served by the protection system to date.

3. The importance of the other This article is not an attack upon the notion of privacy itself. Privacy is part of Goffman's dialectic, as one party attempts to control the informational space between it and the other party and is thus a fundamental part of human interaction. The article is, rather, a critical look at the legal notion of 'privacy' as a stand-alone fundamental right, rather than part of this social process. The thrust of the article has been that too much emphasis upon one part of the process is pathological, to use Durkheim's term. Of course, Durkheim was seeking an ordered non-chaotic society and his term indicated such a society: one which the sociologist should remedy wherever found. But the Durkheimian world of brute social facts and a well-oiled society is just as simplistic a world view as is that of those who focus on enabling total private control of information. Durkheim ignored conflict, power, and unpredictability;31 privacy advocates ignore the 'informational dance' between parties which relate to these aspects of conflict, power and unpredictability.31 We do need to study privacy, but with a more developed and investigative approach. The approach which presumes that personal control of information is the ultimate goal to be achieved is ideological rather than academic, where the presumptions and assumptions are often untested, unstated and involve controversial moral claims which are suggested to be 'commonly held'.

28

For a popular outline, see Branscomb (1994).

29

The notion of balance as a metaphor is, for example, being more closely examined in areas such as intellectual property where traditionally theoretical underpinnings have been based on this idea. See, e.g., Burrell (2005), where they argue confusions exist between balance being a method or process for achieving resolution of compering interests and being 'harmony of proportion of design'.

30

pp. 88-9.

31

For a readable overview see S. Luke's introduction to Durkheim (1982).

32

These are usually cited as weakness of Goffman's theory, too. However, this is arguable - see e.g., Rogers (1980), which mirrors my own reading.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOC1O-LEGAL CONTEXT OF PRIVACY

203 IIJ

We need to understand that privacy is currently everywhere. Even in locations where surveillance is total, there is a hiding of information from others (including the state). For example, anthropological studies have shown that in societies with continual surveillance looking into the internal belief systems of individuals, 'cultures of secrecy* are to be found. Lattas in his study of cargo cults in Papua New Guinea points to the tension between believers in these cults and the arrival of the US-based 'New Tribes Mission', which utilised well-funded resources and 'bom-again believers sent out by local churches and dedicated to the evangelization of the unreached tribal peoples' (Lattas, 1998). More local to this author is the use in the 1980$ of the first computerised telephone networks (System X), appearing earlier in Northern Ireland than other areas of the UK owing to their much more sophisticated tapping and surveillance facilities. Despite this attack on the information privacy of the IRA and others, terrorist activity continued unabated: that is, despite extensive and well-funded assault on the 'privacy' of terrorist groups, they managed to hold their informational cards close to their chests. Also, a more rounded view of privacy would also be wary of assuming that surveillance necessarily leads to totalitarian systems of control. The technology which we have today which enables easy collection of information on who phones whom etc. would have certainly been sought by totalitarian societies, as Arendt has pointed out: The Okhrana, the Czarist predecessor of the GPU, is reported to have invented a filing system in which every suspect was noted on a large card in the center of which his name was surrounded by a red circle; his political friends were designated by smaller red circles and his non-political acquaintances by green ones; brown circles indicated persons in contact with friends of the suspect but not known to him personally, cross-relationships between the suspect's friends, political and nonpolitical, and the friends of his friends were indicated by lines between the respective circles. Obviously the limitations of this method are set only by the size of the filing cards, and, theoretically, a gigantic single sheet could show the relations and cross-relationships of the entire population. And this is the Utopian goal of the totalitarian secret police.' (Arendt, 1967, p. 433) Since such a 'single sheet' is easily realisable by database technology we might concern ourselves about the possibility of technology giving rise to dictatorship - that technology is the egg, and totalitarianism is inevitably the chick. Organisations such as Statewatch33 appear to accept this model. A deeper reading of Arendt, however, does not suggest that it is the technology and the ease of surveillance which produces the slide into a totalitarian society: it is the psychology of the totalitarian state which seeks methods to introduce chaos through technology. Most governments wish order through technology - Arendt's view of totalitarian states is the opposite: that they wish disorder via technology since without disorder their continued existence would be in doubt. This significantly changes how we must discuss their use of technology. A more rounded view of privacy would also consider those locations where privacy has a negative effect on the community from those who wish their individual privacy to be 'respected'. For example, those wishing to keep their details from a cancer registry will have a substantial effect upon the epidemiological value of that information - it has been suggested that registration falling much below 95% would make these registries worthless. The destruction of data sets during 'privacy enhancing' routines in organisations34 means that members of the community will have a reduced opportunity to re-examine their personal or community history. Privacy in death35 means that 33

http://www.statewatch.org.

34

DP principle ;: 'not kept for longer than is necessary.' Warner (2002) discusses this principle without any reference to potential negative aspects for the community: 'compliance... will increase efficiencies in data processing for almost any organisation...' (p. 308).

35

Werth (2002).

204

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

114

PHILIP LEITH

family understanding is fragmented and left without closure, as was the denial of information to those raised in care*6 prior to the ECHR's judgment in Gaskin." A more rounded view of privacy would also impact upon understanding e-government. It is clear that e-Gov relies upon processing data in ways which are not fully compatible with the principles of data protection - for example, the principle that information provided should only be used for the limited purposes for which there is clear consent (usually in a one to one relationship with a single part of government). One reading of the Cabinet Office's Data privacy and sharing (Cabinet Office, 2002) report is that it is an attempt to discuss removal of government processing of information from restrictions of the data protection regime.38 It is clear why this is needed: to utilise e-Gov effectively, the same processing methodology which is used by Equifax, dunnhumby, etc. has to be adopted. If not, how else can fraud and efficient and effective processing of data be enabled in a world where government is complex and it subcontracts work to commercial partners? The logic for this use is powerful, as we note below with respect to the need to trace information on those who refuse to accept court orders to pay their creditors; and whatever feeling of sympathy one might have for the fraudulent welfare claimant, it remains a fraudulent activity which can really only effectively discovered either by physical surveillance or by data mining.39 Less sympathy will be offered the farmer cheating on CAP payments, but once again either expensive physical surveillance or cheaper technology using data matching are required.40 Yet this is a particularly government-centred approach to the use of information: the information is passed between citizen and government and held confidentially from other citizens: this, we are told, is good governance. It clearly is not: good governance means that we know what our neighbours are up to, just as much as we know what government is up to.41 A model where we are all isolated individuals, separated from each other by the rhetoric of 'personal information' is not a picture which has been too frequently painted - by Athenian or later theorists - as a philosophical ideal of governance towards which we should aim.41 In the discussion of the new DNA technology, too, there is often a misunderstanding of just what this technology implies. Many believe that DNA information is 'personal'43 and can thus be controlled and indeed should be controlled. Of course, the essence of DNA information is that it reflects a biological community and information on one member of that community will surely indicate biological aspects of others. There exist databases which use this fact: DNA samples can be placed in order to help build family trees and locate lost family members (see, for example. The

36

See the Careleavers Association (www.careleavers.com) for personal histories of file access.

37

Gaskin v. United Kingdom (Application 10454/83) (1989) 12 ECHR 36.

38

Much has been written on privacy and e-Gov - see, e.g., Ferri 6 (1998). Unfortunately, to my view, most take a non-critical approach to need for privacy.

39

See Department of Work and Pensions (200;): '10. We already use our computers to constantly crossreference information held across government By increasing the scope of this and running scans through credit reference agencies, we will be able to investigate fraudsters without their knowledge and tackle frauds that can be harder to detect using traditional methods.' (p. 3).

40

For example the Monitoring of Agriculture with Remote Sensing (MASS) project will match CIS data from satellites with application information from individual farmers.

41

For example, planning is becoming a more transparent process. See one example at Camden in London at http://www.camden.gov.uk where we see what our neighbours are up to. Access to public information is a related topic but will not be dealt with here.

42

Though has been successfully used by various governments as 'divide et impenf - the British in India being an example.

43

Information concerning an individual's genetic make-up is of a highly personal and sensitive nature.' (Laurie, 2002, p. 90).

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

205 II;

McGee Surname DNA Project'44), and the important factor here is that members of these groupings happily provide their DNA information for personal and group benefit - a situation not considered by Laurie in his Genetic Privacy.'* Yet through this channel, 'using nothing more than a swab of saliva and the internet, a 15-year-old boy has tracked down his anonymous sperm donor father... the teenager was able to use genealogy websites to trace his father by looking for men with a matching Y-chromosome, which is passed down the male line'.46 What are proponents of privacy to do? Make it unlawful to participate in DNA family projects? There are many other areas where 'privacy' is discussed in simplistic individualistic terms which require a more sophisticated analysis - court mandated drug treatment orders47 or in the current difficulties of the UK family law system where public confidence has been lost in a process where privacy was supposed to ensure effective working. The study of privacy requires not just an ideologically free context, it also requires an understanding of the changing nature of technology and the social world which is being created by that technology. The evidence for cultural change arising from technological change is strong: the long term perspectives of communications technologies such as writing and print having been particularly well examined.48 It is clear that our descendants will view their world in a very different manner from which our recent forefathers have viewed their world. It may just be that whereas print produced a mind set which emphasised the detached observationalist view (McLuhan describes it as a Cartesian outlook49) that one of the major transitions from the new electronic world is that we simply grow used to living - not without 'privacy* - but with a different form of privacy to that which we have become accustomed. Privacy is certainly culturally specific: the traditional Inuit living in the same space as other families could 'retire' to a private area, yet still be visible; and the well known example of the veiled face of the Tuareg (Murphy, 1984)'° is another example of how 'the private' can differ from our current notion. Might our notion of privacy change from a focus on informational privacy (perhaps through it becoming impossible to sustain) and return to one where privacy concerns physical space?51 This new privacy - whatever it looks like - will exist in a world where much communication is difficult to keep private should someone wish to examine it: e.g. transmission of data upon the internet requires audit trails5' and despite the attempts to propose various privacy enhancing technologies53 one can have little confidence that technology will enhance our traditional notions of privacy. But this does not mean that we become open books to those in the state or who live next 44

http-7/www.mymcgec.com.

45

Laurie (2002).

46

The Guardian, 3 November 2005.

47

See Eley et al. (2002): The public visibility of the offender/client in the DTTOs in the UK and the later drug court orders of Scottish drug courts plays a crucial role. The clients have a high acceptability of this as pan of the justice-led treatment (although those less comfortable may have opted for a custodial sentence or other community sentence as entry to drug courts/DTTOs is voluntary). In the evaluation of the DTTOs we published in 2002 we expressed the diversity of client responses to not having anonymity.' (Personal Communication, October 2005). See also Nolan (2003).

48

Ong(i982).

49

McLuhan (1962).

50

Note that veiling is a highly contentious activity when viewed either through Muslim or feminist eyes. See ElGuindi(2003).

51

For an interesting essay on this topic see Kumar (1997).

52

Because data must be sent and received between specific points, and routing machines between these must know from and to where this is to be sent

53

See above, note 3.

The Individual and Privacy

206 Il6

PHILIP LEITH

door and who wish to investigate us: there will always be - as Goffman suggests - an information manipulating opportunity in which to respond.34

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

4. The rise of privacy protection: perception v. success Sodo-legal investigation perhaps is most productive when it offers a critique of social representations which lack or have a weak evidential basis. Generally, it can provide an analytical framework for understanding a legal context which is relatively free from and/or highlights legal fictions. For a number of reasons outlined below it appears that the fields of data protection and privacy are in much need of this kind of investigation; because they have developed from such a problematic foundation (for example, indefinable notions of privacy) in the implementation of privacy protection, there is clearly a mismatch between public expectation and reality. The reality of the data protection field is that much data is collected and processed in ways at which those giving 'consent' would probably be surprised. The literature of data mining;55 the growth of commercial entities utilising and selling personal information products and services; and the rise of large interrelated enterprises which can maximise information use all point to a significant growth in a new information industry. We have moved a substantial way from the 19805 when simple list trading was the norm to much more extensive and complex processing of personal data. Yet the perception that this new industry exists seems neither to have fully entered public consciousness, nor that it is possible only due to the new communications technologies. The public does not yet appear to understand the near impossibility to communicate without a digital audit trail being left.56 With press privacy issues, too, the world has changed and yet perceptions do not seem to have followed: the press is now dealing with celebrity culture which relies for its existence and income upon a market of information between the celebrity and public mediated by that same press. When we read the case law, this whole business world almost appears non-existent Why should the perceptions of courts be so blind to social reality and economic fact? In the UK, the first proper study of the privacy problem was carried out by the Younger Committee (HMSO, 1972). It can be seen as using basic investigative techniques to test the reality of the perceived problem, through not only getting views from interested parties but also inviting evidence of actual complaint. Was there a problem found? Not particularly, for letters to Younger from the public which related to complaints against various record-holding/publishing agencies were minimal. For example: • • • • • •

Banks: o Broadcasting: 6 (all BBC) Credit Agencies: 20 Education: o Employment: 10 Medicine: r

54

On a slightly different tack, we can note Goffman's references to homosexuality in Goffman, 1963. The resetting of the agenda from stigmatised to 'normal' is a powerful example of such manipulation of the informational agenda.

55

Data mining is the use of collected data to extract meaningful information from the interrelationships between the data elements. For an introduction, see Hand (2001).

56

Nicoll (2003) is interesting in that the contributors are almost all pro-privacy enhancing technologies (PETs), but the message underlying all their attempts is that privacy enhancing technology is very difficult to implement indeed. These security issues are part of the reason why the US is keen to control internet governance and the technical implementation of TCP and IP protocols.

The Individual and Privacy THE SOCIO-LEGAL CONTEXT OP PRIVACY

207 117

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

• Neighbours, landlords and others: 12 • Press: 2757 However, Younger was also interested in how privacy issues were perceived by the public and carried out a 'Survey of Attitudes to Privacy' and whilst a negligible percentage mentioned credit rating agencies, when they were prompted with a hypothetical situation they took a completely different view. When asked: 'Suppose you had wanted to buy a new washing machine recently and you had asked for hire purchase terms, and the dealer told you that before giving you credit he would have to check with a credit rating agency. Would you regard [this] as an invasion of privacy? The vignette brought a different perspective: 46% thought the situation was an invasion of privacy and 37% thought it should be made illegal Such perceptions are naive: it would not be possible to gain credit at all unless there was some means for the seller to check the trustworthiness of the potential purchaser. Credit rating agencies continue to collect enormous amounts of information about individuals despite this early call for them to be made illegal: if this had been criminalised then an entire system of commerce would have collapsed. Credit rating agencies currently hold information on hundreds of millions of individuals and, even with data protection legislation, are enabled to validly use these records worldwide.*8 Similarly, more current evidence points to a divergence between what is happening and reasonable so far as business is concerned, and what consumers perceive to be the situation. Tesco is a prime example, particularly because of its importance in the UK marketplace. We have already pointed to the dunnhumby subsidiary of Tesco which is collecting clearly personal information for the purposes of selling this information. This collection is certainly not illegal, since Directive 95/46/EC59 (the basis for the Data Protection Act 1998 ('DPA')) gives a very wide range of activities which enable collection of personal data either with the consent of Tesco's customers (via their Clubcard agreement) or for example when organisations such as the Countryside Alliance collect sensitive personal information about anti-hunt campaigners under the rubric of crime prevention.60 So long as 'consent1 is gained or there are other legitimate interests, the information can legally be made use of.

57

Younger suggests only four of these 27 were by individuals and 'scarcely provide support for the view than unreasonable press intrusion is either common or growing' (para. 118).

58

For example, Equifax gives a purpose as Trading/Sharing in Personal Information' and transfer as 'Worldwide' in their Public Register of Data Controllers' entry. These firms now see new markets and sell •identity theft security' to the public.

59

Article 7: Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or if) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article r(i).

60

The Register of Data Controllers for the Countryside Alliance collects such information as: Family, Lifestyle and Social Circumstances; Education and Training Details; Employment Details Financial Details; Goods or Services Provided; Political Opinions; Physical or Mental Health or Condition for the purposes of crime prevention and prosecution offenders.

The Individual and Privacy

205

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

Il8

PHILIP LE1TH

Tesco's Clubcard application form has a Data Protection Statement which meets the requirement of unambiguous consent. Despite the happiness of customers to sign up to this system and to allow the collection of their data for what some see as intrusive processing, when they are questioned on their perceptions as to privacy some immediately take a more concerned position. For example, the transnational study conducted for the UK Information Commissioner (Booth, 2004) showed that there is a strong view in many European countries that the kinds of information being collected by Tesco and similar organisations is highly personal and thus presumably problematical. The Information Commissioner's Office has viewed it as their responsibility to highlight potential information abuse and the individual's rights - thus helping to build up concern about privacy and data - through for example, press advertising. Yet, despite this, there is evidence that much of the population are simply not too concerned about data usage by companies as shown from the Information Commissioner's own 'segmented research' (Information Commissioner's Office, zooj):61 • • • •

The Concerned: 40%, middle class, older, worried and knowledgeable. The Proactive 13%, young, single, unworried due to self-confidence in their information handling. The Self-Reliant: 10%, working class, mid-sos, children, unconcerned. The Social Observers: 17%, upmarket, married with children. Extremely worried about abuse but not worried about company intrusiveness. • The Naive: 19%, young parents, single or divorced, lower social classes, unconcerned. Which suggests that around 50% of the population is generally not particularly concerned with privacy issues, and that the segment which is most concerned is that group described as 'empty nesters' with traditional attitudes (the ICO research suggests Sunday lunch, trust in government and "baby-sitting grandchildren during the week1), which may be a group whose attitudes to sharing information were developed in a period when public shame and the need to present a respectable face to the community was a much more prevalent attitude than today. The 'Proactive* group have confidence in their abilities to control their personal information, but we are not told whether this is a conceit or whether they actually understand how this personal information is being used - a situation which might undermine this confidence. This is an important point since studies continue to suggest a lack of understanding of the technical and informational environment now found: it may be that knowledge would either increase fear, or alternatively increase acceptance of a world which is being changed by technology. Gandy has highlighted these 'perceptions of privacy1 which have been gleaned via public surveys as a problem. He notes that surveying academics such as Westin - who has provided consultancy services for many firms62 have been utilised by the information industry to control the way that policy has developed. As Gandy (1993) points out, surveys are of little use when: 'the public knows so little about the ways in which personal information is used, and has little way of knowing that they have been victimized by its use, is rarely presented for consideration by policy makers... In part, this may reflect the fact that questions that would emphasize this aspect of public concern have rarely been included in opinion surveys.' Perceptions that fear of loss of privacy is mounting are continually being upset by counter-evidence; there can be little real confidence that surveys are providing us with an accurate representation of reality. For example, Google's GMail is an example of the general lack of concern by many - even the technologically literate - towards privacy. The system which was first to offer free email and large amounts of storage was targeted by privacy advocates since the system scanned emails and

61

See also Uoyd (2004, pp. 75-6).

62

See his testimony, Westin (2001).

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

209 119

aimed adverts at recipients according to what was contained in their email text. There were accusations that it was all an FBI plot and while the attack on Google's plan was substantial,63 there were pleadings for 'Invites'6* to join GMail on many 'technical topic' bulletin boards by those who wanted no-cost access to a huge email store and were little concerned about what Google would do with their emails. Research into privacy aspects of the US census data gathering have also suggested that - while lip service is given to privacy concerns - only the very smallest percentage (around i%) appear to alter behaviour in any meaningful way to protect this (Singer, 2003). The response to the Cabinet Office Consultation on Data Sharing also demonstrates a lack of public concern - only three individuals (out of a UK population of 60 million) bothered to respond.65 In total, there were only 60 responses to a proposal which would - as a public law colleague informs me - radically change the nature of the information relationship between state and citizen. ID Cards, too, are examples of a public attitude which is not always opposed to the loss of privacy. Until the expected costs of the proposed UK ID card were given, the vast majority of the public were persuaded that they were supportable.66 Similar situations were found in Germany: there may have been riots from the minority, but a large majority of the population did not object to a card which demonstrated national membership. Given that Nazi Germany and its collection of personal data relating to religion is frequently cited as a reason against ID Cards and government intrusion into sensitive personal information, it is worth while remembering that personal religious affiliation (and non-affiliation) has been collected by the state for many years in Germany for the entire population as the basis for financial support to churches (Barker, 2000). There has been much interest in this contradiction - the fear of loss or privacy, yet either the acceptance of that loss or simply giving up privacy for small economic67 or usability68 benefit amongst technology law researchers, who posit that customers are happy to sell their personal information while at the same time complaining - in opinion surveys - about losing control of it69 Bergkamp (2002) has even argued strongly that data protection law adversely affects the consumer. Those who approach the notion of privacy with technical understanding and a reasonably critical attitude toward the assumptions which underlie the rhetoric of privacy can be struck by the mismatch between perception of what is happening in the world and what is actually happening in the new information processing industries. We have a small segment of society arguing against and highlighting what they see as the damaging effects of technology (with a highly moral/ ideological aspect to these arguments) while the population as a whole pays little real attention. To socio-legal researchers, this should seem like a field well worth researching. Technology is certainly changing what can be private and it would be difficult to argue that privacy is not under 'threat' to use the terminology of the privacy lobby. However, whether the solutions which have been proposed have had much effect on that loss of privacy is a question to 63

See Google's defence at http://gmail.google.com/gmail/help/more.html.

64

These 'Invites' allowed access to the preview release of the system.

65

See www.dca.gov.uk/majrep/datasharing/updateJitm.

66

A Home Office spokesman said: The £93 figure is the unit cost of issuing a combined passport and identity card package valid for 10 years. Support for ID cards has always been strong - around 81% in previous ICM polls. It is only when a figure of £93 is mentioned that support appears to go down.' The Guardian, 14 June 2005.

67

The value of these cards appears to be, between 0.2% and 3.3% for grocery shopping with Tesco at the highest level. Travel points (e.g. air miles) are worth more.

68

Where would we be without cookies which allow web sites to keep our details? We would be forever inputting our addresses to amazon.com, etc.

69

See, e.g., Edwards's (2004) suggestion.

210

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

120

PHILIP LEITH

which there is no clear answer. The data protection regime has certainly given what one might presume to be important rights to users to access and to verify personal information but there appears generally to be little interest in utilising these rights (except those held by policing bodies where they are used as an equivalent of 'certificates of good conduct' or 'police clearance certificates').70 It appears to be the case that there is no less personal information now stored despite the data protection environment If the regime has not affected an overall decrease, has it managed to reduce the worst excesses which might have arrived without it? Once again, it is difficult to know. The fundamental question is: is privacy actually important? Obviously, privacy is important to everyone to some extent, but it appears that 'privacy* is not just a simple black or white definition. It may be that there is some information which we share without problem with e-commerce web sites which we do not want our neighbours to know. Whether it would harm us anyway to have this information released to our neighbours is another question: we may simply change our cultural expectations to be, for example, more like the Swedes in the publication of tax details. To answer such questions fully requires a social theory of privacy and more detached empirical study. A theory of privacy is not my goal here, rather the beginnings of more detached analysis. In the next section I take a more sceptical attitude to the current UK judicial approach to privacy as a fundamental right.

5. The House of Lords approaches privacy The theory of legal knowledge which most appeals as the basis for a theory of privacy is one which was developed in The Barristers' World (Morison, 1990). It is relativistic, narrative-based but with a critical attitude to information. In simple terms it assumes that legal developments are driven by underlying moral assumptions which require 'storylines' to provide intellectual coherence and internal logic to these developments. The informational aspect is important since a court can using various rules and strategies - allow or disallow information into the decision making process which radically affects the potential coherence of narratives (p. 193). It is interesting to apply that theory to one particular case to demonstrate how such perspectives can show the current development of privacy. The Law Lords, in Campbell,71 had been expected to produce a judgment which would clarify 'privacy' as a legal concept. However, as commentators suggested,72 they did not do this, rather simply confirming the underlying basis of privacy in the UK as being breach of confidence, as Woolf had proposed inAv.B. He suggested that: 'A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected.' It is not clear why leave to appeal was given by the House of Lords, but the decision to review the Court of Appeal's judgment provides us with an opportunity to look at aspects of the Lords approach to privacy - technical legal reasoning, and the moral underpinning of their judgment Note that the decision was not unanimous - three Law Lords supported Campbell's appeal and two opposed this. For the purposes of this article, this division is

70 71 72

There are widespread reports of applicants for work having to provide these as part of the UK recruitment process. Has data protection law reduced privacy rather than increased it? Campbell v. MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.

For example, Wacks (2004): The result is, however, disappointing. The House of Lords in Naomi Campbell v. MGN Ltd has offered a less than clear guide on the central question of what constitutes "private facts" in a case where they have been gratuitously publicised. The purpose of this brief paper is to suggest that, until this vital matter is elucidated, the future of a privacy tort of public disclosure of private facts is likely to be unsatisfactory.'

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOC1O-LEGAL CONTEXT OF PRIVACY

211 121

not too important since there was an underlying acceptance of Lord Woolf s use of confidentiality and the general positions of the two sides - the judgment could, it seems to me, have gone either way.73 A socio-legal investigation of this decision would look at several elements. First, how technical legal concepts can be moulded to fit (or perhaps bashed into shape with a heavy hammer) a desired end, dropping what were essential parts of that concept to adapt to current need. Second, note how the moral context of decision making is so closely related to the construction of the legal concept And third, that we see how information which might be put into the arena is or is not acceptable within the framework set out by the judges. Such an investigation would require more discussion than can be brought in here, but pointers can certainly be given. (a) Privacy and breach of confidence The development of privacy law demonstrates that legal concepts are not immutable. We can see that breach of confidence has been taken from the commercial field and applied to underscore chosen moralities, dropping - of course - those elements which are necessary in commercial undertakings and perhaps changing the nature of commercial relationships as these concepts are re-applied in their new form. This poses technical legal difficulties (which may worsen in future) which mean that judicial reasoning becomes strained as it attempts to fit new facts into old but extended rules and principles. Why is this interesting? Not just for theoretical interest, but because it illuminates how 'privacy* is being constructed as a socio-legal 'fact'. The basic statement of UK law and privacy's remedy in breach of confidence is to be found in the judgment in A v. R "The court is able to achieve [compliance with ECHR] by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.'74 The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. As the headnote makes clear, in Argyll v. Argyll [1967] Ch 302 Ungoed-Thomas J decided that "a contract or obligation of confidence need not be express, but could be implied, and a breach of contract or trust or faith could arise independently of any right to property or contract (other than any contract which the imparting of the confidence might itself create); and that the court in the exercise of its equitable jurisdiction would restrain a breach of confidence independently of any right at law".'75 The Law Commission (1981) had pointed that the primary difference between a privacy right and breach of confidence was that if A gives information to C about B, then B has no rights against C only A has rights against C. Privacy rights mean B would have rights against C - just what Lord Woolf outlined in A v. £ This gives rise to several difficult technical problems which have not been addressed by the House of Lords and which also offer great tactical advantage to a presenter of information to the disadvantage of the 'other':

73

Lord Hoffmann at para. 36: The House is divided as to the outcome of this appeal, but the difference of opinion relates to a very narrow point which arises on the unusual facts of this case.'

74

Para. 4, per Lord Woolf.

75

Para. 5, per Lord Woolf.

212

The Individual and Privacy 122

PHILIP LEITH

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

(i) Diffused presentational control

There are several technical problems with this new approach which was first used in Albert v. Strange (though not to protect privacy, but to protect 'artistic ideas'76). For example, it reverses the expected position: it puts the responsibility upon the recipient of information to control it rather than upon the holder of that information to keep it secure. We can read Albert v. Strange as shutting the gate after the horse had fled: Prince Albert's printer had clearly failed to keep etching plates secure and since copyright would not stop Strange from publishing information about these etchings (not publishing the etchings themselves) the remedy of extending breach of confidence to those not party to any agreement was introduced. In a Goffmanesque analysis, this is a particularly powerful tool over diffuse others - giving the originator of information many potential tactical advantages in presentational control

(ii) The 'Cleeson test'

In Lenah Meats, Gleeson) had suggested: The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.'77 This is clearly a judgment which would be based on social values at a particular point in time - 'reasonable person' and 'reasonably sensibilities'. However, the Law Lords preferred the stricter definition of Lord Woolfi78 'A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected.'79 This latter is not directed at the values of the community, but of the internal psychology of the complainant and gives a very wide range of possibilities for presentational control based on that individual psychology. This is quite a substantial change in the philosophy governing interpersonal relationships: it is as though Lord Woolf had never practised in the law - a profession well known for the speed of transmission of gossip and personal information about other practitioners - or was suggesting that the public should have higher standards of confidentiality than his own peer group. (Hi) Knowing what is 'public'

In traditional breach of confidence, when information became 'public domain' it was open to all to use. This changes in a privacy regime: as Phillipson suggested (before the Campbell judgment) in his argument for breach of confidence as a privacy remedy, the courts have utilised fuzzy judgments of degree when dealing with the numbers required to undermine the confidential nature of information. He argued this was due to a lack of conceptual underpinning, and a lack of clarity which is a serious problem given that it abuts Article i o rights.80 The Campbell judgment does not improve this situation. For example, one could pass on - in one-to-one conversation - 'sensitive' information about oneself to 500 people and expect each of them to hold that information in confidence since none knows that any other also holds the information and - having a reasonable expectation that they would 76

See Gurry (1984) for an outline of law prior to the Human Rights Act. The reader of the judgment may not agree with later interpretations that it was not concerned with privacy rights.

77

Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd [2001] IICA 63, para. 42.

78

Lord Birkenhead suggested Gleeson'... could be a recipe for confusion'.

79

Para. 11. Guideline (ix).

80

Phillipson (2003, p. 737) is, of course, attempting to produce a coherent and logical foundation to breach of confidence as the basis for a privacy right It may be that we should not be too concerned about numbers and instead look for justifications for privacy rights in the content of that information: but we are forced to do so because of the tortuous reasoning required to move from confidence to privacy. Phillipson prefers to look to use (2003. p. 736)-

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LECAL CONTEXT OF PRIVACY

213 I2J

protect one's privacy - they must. They could not test others' awareness of this knowledge since they would fear litigation for breach of confidence and attack on my personal privacy. They could - if they knew what a 'substantial number of people' meant - be freed from the bond of confidentiality but if they got this guess wrong, they would be liable:8' This moves breach of confidence quite distinctly away from its origins. In traditional commercial secrecy law, the concept of reverse engineering is an allowable method of determining the nature of a secret process or such like. So long as the information has not been derived from a source which is under an obligation of confidentiality, anyone can reverse engineer the result without problem. In privacy, this is clearly not the case: one could know that a support group meets at a given location, one could see someone leave that location and, putting two and two together (presuming one arrives at four) still not be able to inform any other person of one's conclusion.

(iv) Segmentation of personality

This problem is related to the simplistic conception of private areas of life which is discussed in Campbell as though it was possible to segment the private parts of life in a similar manner to an orange. Wacks (2004), a privacy advocate, criticises the Law Lords approach and then discusses what he sees as a better one by suggesting that there should be a clearer concept of "private fact' which is divorced from the internal psychological perspective of the complainant ('An individual who regards information concerning say, his car, as personal and therefore seeks to withhold details of the size of its engine will find it difficult to convince anyone that his vehicle's registration document constitutes a disclosure of'personal information.1) But it appears highly difficult to produce such a listing of private fact and public fact for each personality (for Wacks suggests that a listing of factors such as 'How was the information acquired?' which then bear upon the 'objective' approach). There appears to be no legally technical manner in which such a segmented personality structure could be expounded without utilising some neotaxonomical approach based on Linnaeus' work.

(v) Less insight, more protection

The emphasis upon individual perception through expectation results in unexpected conclusions. Benn raised one vignette of possible privacy when he discusses privacy's relationship to norms: 'If two people retire to the privacy of the bushes, they go where they expect to be unobserved' (Benn, 1984), which clearly fits within Lord Woolfs reasonable expectation of privacy and is one of the strands in the majority decision in Campbell (where, though in public, photographing her was not seen as a 'public' act). This gives more protection to the naive (and perhaps the drunk) than it gives to those with reasonable common sense. In Jogger v. Darling?* for example, the sexual act at the centre of the privacy claim - between Mick [agger's daughter and George Best's son - occurred within the doorway of a club and was captured on CCTV and may have been seen by doormen and a number of others. Bell I agreed to a temporary injunction. Given that privacy claims are often related to new technologies, this gives a greater possibility of protection to those who prefer not to understand that technology. For example, someone who thinks that the computer in front of them and the web site they are viewing are linked by a single copper cable will have more protection than someone who understands the nature and technology of packet switching.

81 82

In A v. B, the defendant's argument was that with 25 people knowing, the information could not be confidential This was dismissed with reference to Stevens and Awry, 'information only ceases to be... confidential when it is in fact known to a substantial number of people.' Jogger v. Darting [2005] EWHC 683.

214

The Individual and Privacy 124

PHILIP LEITH

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

(vi) Photographs

The judgment demonstrates the continuing lack of conceptual clarity about how a photograph differs from information and when photography invades privacy when a statement about the photographed incidence does not Given that the new technologies are putting cameras in many locations and (through mobile phones) in almost every pocket, the judgment appears to envision a photographic world where only the paparazzi are waiting to snap. Once again, we see a manipulation of breach of confidence to make it fit privacy needs, without more reflective discussion of whether this fit is good or bad. Overall, we can see that "breach of confidence' has been pushed into carrying out tasks which it is not well adapted to effect Are there other options? Perhaps, but those other options such as producing a legal theory of privacy are probably more difficult than using the legal fiction that breach of confidence is a satisfactory method of giving fundamental rights to privacy. (b) The moral aspects of the judgment As with almost every judgment relating to privacy, the Law Lords reasoning in Campbell overflows with moral sentiment. The impact of the judgment as a whole becomes one which is not so much about the application of law, but about the morality of press reporting. Conclusions are arrived at by replacing relatively complex legal principles with simplistic moral principles. As an example of how this process operates in the judgment, we can look at how Lord Nicholls points to the importance of privacy in the modem state: The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v. Dymont [1988] 2 SCR 417,426.'83 'Frying' into the lives of citizens hardly appears the moral imperative to take from Dymont, though this case is certainly interesting: a drunken driver was brought into hospital and the doctor took a blood sample without consent and passed it to the police, who had not noticed that the injured driver was under the influence of alcohol. Medical confidentiality is usually given a high status for the obvious reasons,84 but there are public interest reasons for not always giving the patient absolute rights to consent, a factor which is noted in the BMA's guidance to doctors on reporting a patient's ability to drive to the licensing agency (CMC, 2OO4)."5 There appear to be worries in the medical profession itself about these issues, with one attendee at a BMA annual conference pointing to multi-drug abusing patients driving erratically and unsafely to her surgery, probably without insurance. Dr Bill O'Neill, secretary of the BMA Scottish Council, said the General Medical Council had made it very clear the patient's right to confidentiality was not absolute: 'If you are going to put other people at risk, you are not entitled to confidentiality."86 The existence of this problem of doctors sampling without consent and confidentially/public interest is one which has been addressed by Parliament in the Police Reform Act,87 since it was viewed that the consent 83

Lord Nichols at para. 12.

84

Which, when I informally approached A & E doctors for clarification, appeared to me to include convenience.

85

See also the advice in the GMCs FAQ relating to driving against advice.

86

The Herald, July 2001. Extract at http-J/www.dragscope.org.uk.

87

Note also, the formalistic guidance in 'Guidance for doctors on the provisions of the Police Reform Act 2002 from the British Medical Association and Association of Forensic Physicians', October 2002, revised February 2004. where blood may be taken by another doctor - the end result, if not the route, is essentially the one which was found errant in Dymont

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

215 125

requirements were allowing potentially guilty drunk drivers to escape prosecution. But Dymont is here being translated by Lord Nichols into a statement on the iniquity of governmental intrusion rather than - I suggest - a decision which should make us consider whether we want to either encourage safer roads or support privacy for drunk drivers. There is a clear social problem with actual consequences for the victim of alcohol-inspired accidents: Culshaw (2005), for example, carried out a survey which suggested that most alcohol dependent drivers continue to drive without concern for themselves or other road users. Other parts of the judgment, too, are problematic when they replace controversial and complex issues of therapy with a relatively simplistic approach. For example, the judgment makes calls to 'common sense' ('it is well known') understanding of treatment which are probably more appropriate to the person who does not live life in the public glare: 'Views may differ as to what is the best treatment for an addiction. But it is well known that persons who are addicted to the taking of illegal drugs or to alcohol can benefit from meetings at which they discuss and face up to their addiction. The private nature of these meetings encourages addicts to attend them in the belief that they can do so anonymously. The assurance of privacy is an essential part of the exercise. The therapy is at risk of being damaged if the duty of confidence which the participants owe to each other is breached by making details of the therapy, such as where, when and how often it is being undertaken, public. I would hold that these details are obviously private."88 And Baroness Hale presented an image of a fallen angel struggling to return from the depths of addiction, failed by a scurrilous press: 'Anyone who has had anything to do with drug addiction knows how easy it is to relapse once returned to the temptations of the life in which it began and how necessary it is to try, try and try again to achieve success.89... A picture is "worth a thousand words" because it adds to the impact of what the words convey, but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again.'90 Addiction is certainly private to an extent, but it also occurs within a social context9' The drinker whose usually appalling behaviour has caused him to be ostracised from non-drinking groups needs to be re-integrated with non-dependant society: it is difficult to see how this can be done within a community unless there is an almost public acceptance of the changing nature of personality and behaviour patterns. The privacy/anonymity model offers only a partial solution to this problem,92 since it is based on an atomised self, separated from society and only able to fully enter society when the cure is effected. Contrary to this solution, one distinguished psychiatrist working with

88

Lord Hope at para. 95.

89

Baroness Hale at para. 144.

90

Baroness Hale at para. 155.

91

See note 47 above, with regard to drug courts.

92

It may certainly offer a first step towards rehabilitation where embarrassment levels must be high, and given that dependence is viewed as a 'moral weakness' - one can understand why some will desire less public attention. One AA attendee suggested to me that anonymity helps organisations such as this, too, since many do fail in then- rehabilitation or its early stages. Interestingly, this person did not have much sympathy for Naomi Campbell's claim to privacy given her public status.

216

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

126

PHILIP LEITH

addiction has suggested: 'Anonymity is bad. Everybody should be as known with their addiction as they are with their diabetes,' he says, "You need to tell significant people in your life. And if you're a president or a president's wife, you need to tell the whole world, because a month from now you're going to be somewhere where they fill your champagne glass."93 The Campbell case was, overall, decided on the medical nature of the information published, yet there was a clear indication that if the information had been more sexual, then it may have resulted in a homogenous decision. For example, Lord Hoffmann pointed that salaciousness would have changed his perspective: The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of the existence of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too intrusive and demeaning.*94 which is a position which does not entirely reflect an earlier statement by Lord Hoffmann: '... a freedom which is restricted to what Judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which Government and Judges, however well motivated, think should not be published. It means the right to say things which "right thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute... the principle that the press is free from both Government and judicial control is more important than the particular case.*95 Some of the press, of course, prefers the salacious details or the intimate photograph96 and it is this which makes the press loom particularly large in discussions of privacy. For example, Phillipson and Fenwick (2000) - in their advocacy for breach of confidence as a remedy for invasion of privacy cite evidence (suggesting that control of the press is required) including from Victim Support that press intrusion caused 'in some cases diagnosable psychiatric harm'. It may be that deeper analysis might not support their case so well: as one police press officer put it 'Only rarely have I come across victims not prepared to talk to the Press in some form or other. I firmly believe that people who have taken this path have done so out of a previous in-built dislike of the Media or a bad experience in the past. I am convinced from my research that those victims who have either co-operated fully or "put up and dealt with" the attention of the Media have come out considerably less traumatised than those victims who have turned their back.197 Deeper analysis or not the press are viewed negatively - almost driving general morals ever downward. As Sir Brian Neill (1999) suggested- 'though freedom of speech is one of the essential elements of a free press, there are good grounds for saying that, particularly in recent years, the media have marched ahead of the ordinary citizen.' Despite this type of claim, suggesting that the press are out of touch with the man in the street, the House of Lords in Campbell gave short shrift to the 'Cleeson test' 93

Mozena (2002), quoting Joseph A. Fursch, MD. Fait of the process of rehabilitation in almost all programmes involves making amends to those who have suffered from dependant behaviours.

94

Lord Hoffmann at para. 60.

95

Hoffmann LJ in R v. Central Independent Television pk [1994] Fam 192 at 201-4. Cited in A ff ft

96

See, e.g, Theakston v. MGN Ltd [2002] EWHC137 (QB).

97

National Victim Support Magazine, Winter 1998.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

217 127

('highly offensive to a reasonable person*) and moved the test to the more legally problematic, 'reasonable expectation of privacy' as outlined above, perhaps because the public and press are not so divergent as is attested. This judicial distaste of the press has a longish history: Warren and Brandeis' Harvard Law Review article giving intellectual support to the dislike.98 There are indications that this piece, upon which so many other articles have been based, does not offer quite the support which one might imagine. Barren's critique (1979) of the Warren and Brandeis article attempted to find the evidence of the press excess which was supposed to exist. By looking at the publications prior to the Harvard article appearing he could find no evidence of such excess (quite the contrary) and could find no evidence of any daughter's wedding." Barron argues that the article was related to a time of political infighting in the Republican party ('mugwumpery1) and suggests that they were 'clinging to a minority view of newsworthiness'. Those who wish to utilise Warren and Brandeis to support their privacy views, should certainly find Barron illuminating. Given the discussion of the 'reasonable person', it is also interesting that Barron argues that Warren was extremely hypersensitive. This hypersensitivity is not unusual with respect to the press -we just need to look at the decisions of the Press Complaints Council to see the kinds of issues which cause upset when some receive press attention. For example: • The University of Luton complained that an article on the 7 July London bombings was inaccurate when it stated that a partner of one of the suicide bombers was a former student. • Ms Corrine Mitchell of Dalkeith complained that an article was inaccurate in its claim that she had rowed with her son while visiting him at Folmont Young Offenders' Institution. She subsequently complained - on behalf of, and with the signed authorisation of her son, Luke Mitchell that the latter had not put on weight since entering Polmont.100 • Mrs Lilian Hawkins of Stratford on Avon complained that the photograph of a body bag accompanying an article intruded into her grief, and had caused great distress to all of Mathew Hawkins' family.1"' • John Redwood MP complained to the Press Complaints Commission that an article published in the Daily Mirror on 2 April 2005 headlined 'He's not human... don't vote for him' was inaccurate in breach of Clause i (Accuracy) of the Code. This is not to suggest that all complaints to the PCC are unworthy - some are sad, some screamingly funny and some just bizarre - but that there is certainly a sensitivity to press focus which is at tunes extraordinary. We should also remember that very, very few people are ever touched by large scale press intrusioa102 The world of celebrity differs, of course, from the typical PCC complaint In the celebrity world, careers have been built upon filmed sexual encounters103 and the private is forever being dispensed in 'exclusive interviews' to ensure that the celebrity remains in the public eye. That desire to be

98

It acts as core discussant point in Schoeman (1984). See also Wacks (1995).

99

Frosser (1960) was prime mover of the daughter story: The matter came to a head when the newspapers had a field day on the occasion of the wedding of a daughter, and Mr Warren became annoyed.'

ico

The son had been found guilty of a very distasteful and gory murder. The judge, Lord Nimmo Smith, said Mitchell was guilty of one of the 'most appalling crimes' in recent memory.

101

Note the cultural differences: Spanish local TV regularly presents images (taken from a distance) of dead road accident victims lying in a pool of blood. We do not accord this right to the dead pictured in international TV reporting.

102

'When you consider that there are 220 million Americans, the cast in the public drama begins to seem small' (Powers, 1980, p. 234).

103

'Abi In Porn Movie Pledge: She's done it once, and now shameless Abi Titmuss says she'd do it again...', www.sky.com/showbiz, 28 October 2004.

218

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

128

PHILIP LEITH

publicly viewed appears to be strong amongst many: Powers talks of the yearning: 'I am not making this up; the yearning is really there. You can see it in the audiences of television shows, where adults wave at the camera - look! it's me! - and squirm like children if the camera should be directed for a moment at them" (Powers, 1980). Yet this is hardly reflected in the Campbell judgment, where we have a highly moral stance and attempt at turning back the tide to 'simpler rimes' with what are - to a critical eye - relatively homespun philosophies about privacy. These show little insight into the contemporary nature of celebrity and how it feeds upon 'personal' information, but forever trying to control how this is presented and viewed - in just the dialectic manner which Goffman describes. The House of Lords in Campbell could have widened the informational context of the judgment (there were certainly brief mentions of this celebrity world104) and looked in much more detail at the business of being a celebrity: instead, they set this aside and concentrated upon a highly conservative perspective based on pre-celebrity notions of 'individual' - almost denying the existence of this world where personality is business. This tendency towards accepting conservative social models is, of course, hardly novel: if we re-read Duchess of Argyll v. Duke of Argyll1"5 (an important breach of confidence case) we reach the same conclusion: a judgment where neither party was viewed as particularly upstanding became a judicial message to preserve the informational sanctity of marriage at just the time (the late 1960$) it was all beginning to disintegrate in a new moral climate. The House of Lord's current moves to protect privacy may in historical terms be just as ineffectual.106

6. The data protection landscape Since the 1980$, the UK has had a data protection regime, based on eight principles of 'good data governance"07 and, since the late 1990$, a similar regime has been harmonised across Europe.108 The assumption has generally been that this data protection regime has been a positive development and has had effect upon how commercial agencies have behaved with regard to data processing. It will be clear from the earlier discussion in this article, that it is possible to hold a sceptical attitude towards such claims: commercial data processing continues to develop new technologies and new ways of utilising personal information often in ways which appear to in direct conflict with expectations of personal data control. However, it is not just that there is a gap between what data protection legislation has promised and what it has produced, but that there is also - due to the philosophy of the regime - a number of other aspects which have negatively changed the landscape in ways which were not foreseen. These - to the socio-legal perspective - have potentially serious negative consequences for the good ordering of society: (a) Ignoring journalistic/community tradition Perhaps one of the most obvious examples of this changing landscape is the Lindqvist case,109 where Mrs Lindqvist was prosecuted by the Swedish data protection authority for publishing 'sensitive' personal information about a church member on her church-based web site. The EC[ ruled that charitable web site usage was not exempt from the DP regime and that 'reference to the fact that an

104

For example, Lord Craighead, para. 80.

105

Argyll a. Argyll [1967] Ch 302.

106

For example, note Meyer (2005).

107

Data Protection Act 1984.

108

Council Directive 95/46/EC of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, OJ. L 281/31(1995).

109

Lindqvist v. Kammeraklagaren Case C-ioi/oi [2003] ECR1-12971.

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOC1O-LEGAL CONTEXT OF PRIVACY

219 129

individual has injured her foot and is on half-time on medical grounds constitutes personal data concerning health within the meaning of Article 8(1) of Directive 95/46'.110 We can see this transformation of the landscape immediately: information which would be normal and perhaps expected within a printed communication passed between members of a church would contain this kind of informal chat and, presumably, would be welcomed by members of that church group. With this ECJ decision, the original aim of the legislation (to control extensive commercial abuse of data) has been upended and instead, a formalistic approach towards a new form of communication ("web blogs') has been taken. Not only are charitable web pages put under risk of prosecution, but teenagers too - and most teenagers appear to participate hi this kind of community interaction - must be careful about what they include in their public sites. In the new data protection landscape, the state criminalises activities which are in other contexts perfectly lawful and community-oriented. (b) Favouring capital While the effects of the DP regime are being felt by the single web author, at the other end of the data processing continuum, it is becoming clear that there is a bias in favour of large conglomerates. This arises because tools such as data mining, matching and processing of data require large data sets. Such tools are advantageous to business in allowing them to target customer need but the companies most able to perform these tasks effectively are those with large data sets - that is, well capitalised and with a large commercial presence. DP law will always - in terms of information utilisation favour Tesco over the local corner shop. We do not always need (in terms of 'data abuse1) to object to the use of advanced data processing by commercial firms, since there is usually some clear customer service rationale which is understandable within the framework of modern business methods. The dunnhumby web site suggests: Today's consumers have more information and choice than ever before: if you don't have what they're looking for they're going to go elsewhere. The key is understanding people as individuals and continually striving to create a response that's relevant. Interacting meaningfully will retain old customers, attract new ones, and give you healthy returns on your investment. Get your customers moving in the right direction!"" What is problematical is that the legislative regime is only allowing the larger firms to fully participate in these customer-oriented processes: and they certainly are customer-oriented Amazon.com's 'invention'"2 of one-click-ordering is clearly something that was perceived as being of marketing value because it made the interaction between customer and vendor much more streamlined and simpler. (c) Replacing employment litigation? It was not clear in Lindqvist just where the complaint about personal data arose - was it the person whose leg was mentioned, or was this independent action from the Swedish data protection office? Such information would be useful to know, since it might help demonstrate whether there is a popular desire for limitation of processing or whether these are actions of the data processing commissioners enforcing the legislation without regard to complaint. Knowing this helps us to

no in

Para. 50. htt{R//www.dunnhumby.com.

112

There has been much debate and litigation over the inventiveness of this, but the point here is not whether it meets patentability requirements but that it offered customers an ease of ordering.

The Individual and Privacy

220

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

I3O

PHILIP LEITII

understand more fully privacy concerns and who holds them. In the UK, it appears to be the case that most prosecutions do not arise from complaints from those whose personal information is being 'abused'. For example, recent UK prosecutions by the Information Commissioners Office include a travel agent (Mr Soltysik) who removed details from his previous employer to set up his own travel agency. The ICO investigated and prosecuted Mr Soltysik under the DPA. Of this successful prosecution, the Information Commissioner, Richard Thomas, said: 'I am pleased to see that this case was viewed so seriously that it was committed to the crown court for sentencing. Obtaining and disclosing personal information can have serious consequences and data protection laws protect an individual's right to personal privacy. The result of this prosecution by my office sends out the clear message to those engaged in similar activity that such sharp practice in handling personal information, involving invasion of people's privacy, will not be tolerated by me, or by the Courts.' There appears to have been no complaint from data subjects whose data was being 'abused' or whose 'privacy was being invaded' and indeed it may be that due to their personal relationship that they felt that they were also in a commercial relationship with Mr Soltysik and welcomed being approached with offers by his new company: the data subjects may well have received better and cheaper service from this company, so prosecution was not necessarily in the interests of customers.11' Instead, what appears to be happening here is that the complainant was the previous employer, who would normally have been expected to have utilised the traditional explicit/implied terms of any employment contract to seek remedy. Perhaps rather than expose the previous employers to the efforts, worries and potential bad publicity (customers may have used the original firm because they personally liked Mr Soltysik), they were freed from these by the ICO taking on litigation on behalf of the ex-employers, saving them the costs and concerns of civil litigation (at the expense of the public purse). (d) Hiding debtors?

Another UK ICO prosecution involved 'people tracers' (V Chasers) a commercial agency which sought information on individuals who were, for example, debtors. In the US, such agencies are very common (and indeed utilise services which appear to be illegal114) and relatively common in the UK.115 The methods used by V Chasers are less morally acceptable perhaps than other cases which have been prosecuted under DP legislation, since it involved deception of government departments. However, it is clear that they were servicing a real need in the community. For example, the Department for Constitutional Affairs (Cabinet Office, 2002) suggests that debt collection in the UK is not working, even after successful court proceedings: The study reveals a bleak picture of the effectiveness of enforcement procedures with only a small proportion of the county court and High Court claimants receiving full payment from the 113

We frequently shop where we like the person who is serving us and would move our trade if that person moved, too. Women's hairdressers are particularly sensitive to this pattern.

114

Locatecell.com is a service which will provide detailed information on any cell phone calls made by any cell phone in the US. Thus knowing the mobile phone number of anyone, it is possible without their knowledge ('Strictly confidential'!) to find who they have been in phone contact with, for how long and at what time. This does not appear to be legal, but the service appears to be offered by around 100 different companies.

115

'It is estimated that tens of thousands of people go missing in the UK every year, and whilst it's impossible to gauge the precise size of this black economy, with over 1,500 tracing agents working in the country, finding them is big business. Agents typically work on a 'no-trace, no fee' basis for £3o-£so. They range from highly professional organisations with dozens of employees, to a single man or woman sitting at home with a telephone. They range, too, from tracers who use entirely legitimate means to track down people on behalf of their clients, to those who don't' The Big Issue, 27 December 2001.

The Individual and Privacy THE SOCIO-LEGAL CONTEXT OF PRIVACY

221 13!

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

defendant in the time period specified in the court order. Steps taken to enforce default judgments did not prove effective either. Such failure led to the expression of frustration, disenchantment and some bitterness amongst claimants.' and requiring correction from government, of a form which is very close to that which was being offered by V Chasers: 'About 60 per cent of enforcement in the county courts is ineffective because the claimant cannot find the necessary information about the debtor to enable them to take the right method of enforcement. LCD's review of enforcement proposes allowing a regulated enforcement agent, as an officer of the court, to have a limited ability to access information from designated third parties in order to confirm that the data provided by the creditor on the identity and whereabouts of the debtor are accurate so that the enforcement agent can make initial contact with the debtor.' In substantive terms, V Chasers were clearly operating unlawfully (both under DP law and fraudulent communication with government departments), but if they had waited just a little longer, they may have been able to gain a license from the DCA or its equivalent to do lawfully what they had been doing illegally. A critic of the data protection regime might note that the legislation protects debtors with more force than it does creditors. (e) What's wrong with fiduciary relationships?

Looking at the prosecutions carried out by the ICO, it can sometimes be difficult to understand these in terms of the original aims of the legislation. For example, prosecutions relating to non-registration appear to be more focused on revenue income than any real data abuse. Recent ICO prosecutions have included solicitors who have not registered and it does seem - a quick search shows that this remains the case - that solicitors have not been particularly adept at Notification. Yet solicitors would not strike one as traditional 'data processors' - and are in fiduciary relationships with clients anyway - so registration appears pointless except as a means of fee income, with the Department of Constitutional Affairs noting: Increasingly, notification is seen as burden for data controllers which serves no, or very little, data protection purpose.' (Dept of Constitutional Affairs, 2002) The EU, in response to this complaint by the UK and other countries has pointed out that no country is obliged to have total registration. The Information Commissioner's view is different noting that: 'I am pleased that the magistrates' court has recognised the seriousness of a failure to notify. Complying with the Data Protection Act ensures that individuals' personal information is secure, accurate, up-to-date and is processed fairly. This prosecution should remind solicitors and other organisations of their responsibilities under the Act.' The Register itself could be of value in analysis of the data protection environment. However, the decision of the Information Commissioner to make it a relatively bland listing of notifications without any useful cross-record searching functions suggest that the purposes set out by the initial proposals (HMSO, 1978) have not been met by the ICO.116 (f) Chilling communications?

Finally, it is clear that there is somewhat of a gulf between the public understanding of data processing abuse and that of the ICO in their implementation of the DPA. One of the most high

116

See Leith (forthcoming).

The Individual and Privacy

222

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

132

PHILIP LEITH

profile examples of this was during the aftermath of the Soham murder enquiry which was held up police claimed - by worry over DPA."7 The ICO described this claim as 'nonsense'. It certainly should have been the case that a Police Force had expertise to comply with the DPA and - if there was confusion - to communicate with the ICO in order to gain clarification and indeed, the ICO has been relatively prompt in producing advisory statements to clarify best practice. However, the continuing changing nature of DP interpretation (particularly in such cases as Lindqvist) must lead to confusion over exactly what is personal data and what isn't We see this confusion in the public mind in the ICO's own funded research when they note that there is little agreement even over what constitutes personal data (Booth, 2004). If this confusion exists, it might rightly be a concern that rather than stopping abuse of data processing, it acts as a bar on the valid communication of information.

7. 'On balance?' The research which is most usually carried out into data protection pays little heed to these aspects of data protection. They are not always difficult questions to resolve (particularly the notification procedure given the recent direction from the EU) but they can be difficult - who should, for example, be allowed to access sensitive data and under what kind of licensing or other regime? But they are made more difficult to answer because hovering over resolution this notion that we must "balance' the rights of the individual to control their personal data against the community's needs (comprised, of course, of other individuals). The "balance', though, is never a real balancing act when the rhetorical framework is so disposed towards 'personal dignity1 and control of information, etc. We need, I suggest, some focused socio-legal study"8 to assess properly the "balance' of personal information control as against community access to information etc. We also need to study the contextual assumptions which underlie any notion of balancing methodology.

8. Conclusion: the value of a socio-legal privacy theory My aim has been to suggest that privacy has been under-theorised and that there are practical consequences which arise from this when a judiciary face problems of technical developments and counter-claims made to the rhetoric of community and to the rhetoric of individuality. The sceptic will argue that theory is of no value to a judiciary - particularly in the UK - who have shown little interest to date in these approaches. Certainly the House of Lords hi the Campbell judgment did not progress theoretical understanding with a judicial theory of privacy. But there may be grounds for hope - we can see, for example, the growing understanding which is developing in some US courts over the social nature of control of the 'private'; as Fisher has pointed out, a 'few influential courts have begun to take notice' citing an appeal judgment relating to parodied baseball cards 'Parodies of celebrities are an especially valuable means of expression because of the role celebrities play in modem society. As one commentator explained, celebrities are "common points of reference for millions of individuals who may never interact with one another, but who share, by virtue of their participation in a mediated culture, a common experience and a collective memory." Through their pervasive presence in the media, sports and entertainment celebrities come to symbolize certain ideas and values... Celebrities, then, are an important element of the shared communicative resources of our cultural domain.' (Fisher, 2001) 117

Other agencies make similar complaints: 'Hospital bosses say privacy laws are preventing them from helping police solve the murder 41 years ago.' BBC News Online, 13 September 200;.

118

And, I suggest, research funded and essentially controlled by the ICO is of little real value to building a robust model of the field

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

THE SOCIO-LEGAL CONTEXT OF PRIVACY

223 133

There is a linkage between this kind of perspective of individual rights to control image and that of Goffman and his informational dialectic: giving one party control over how an image is presented denies the importance of the 'shared communicative resources of our cultural domain*. Even the use of words such as 'shared', 'communicative' and 'cultural' indicate a changing understanding in the nature of judicial reasoning. It is of course true that too often the UK courts have paid more attention to the needs of the hypersensitive than to any theoretical issues: for example, in the Source Informatics case Latham J suggested: The majority of patients would, I suspect, be unconcerned... But I recognise, thai, for some, the sensitivity, as they would see it, of the information may be such that they would feel that any use of the information without their consent, would be unconscionable.'"9 The sensitivity of 'some' seeming to provide all the theory required to overcome any practical or social benefit which may have arisen from the collection of anonymised prescription data.120 The power of the notion of'control of personal data as a fundamental right' is considerable since it effectively removes discourse of social benefit and advance, casting it as invalid. It is - as with calls to 'balance' - an anti-theoretical approach to questions which deserve theoretical discussion. An antitheoretical approach is, of course, common with the UK and Europe judiciary. For example, in their response to the creation of a Supreme Court, the Law Lords appeared more concerned with accommodation and other practical matters than that the notion of a Supreme Court (being a logical extension of their expanded role after the Human Rights Act) could be a different institution from that of a House of Lords in a different building.12' It could be much more: a Supreme Court with research staff and a desire to be more than legal technicians would surely have given us a judgment of more substance that that in Campbell Perhaps then we will see the development of meaningful links between socio-legal researchers and the judiciary, and a more coherent legal view of privacy free from the excesses of unsophisticated moral values122 and more attuned to the needs of the wider community.

References ACRE, P. E. and ROTEKBERG, M. (1997) Technology and privacy: the new landscape. Cambridge MA: MIT Press. ARENDT, H. (1967) The Origins of Totalitarianism. London: Allen & Unwin. BARKER, C. R. (2000) 'Church and State Relationships in German 'Public Benefit' Law', International journal ofNot-for-Profit Law 3(2): www.icnLorg/JOURNAL/vol3iss2/ar_barker.htm. BARRON, ). H. (1979) 'Demystifying a Landmark Citation', Suffolk University Law Review XIII(4): 875-922. R v. Department of Health, ex p Source Informatics Ltd [1999] 4 All ER185. My emphasis. This was overturned on appeal ([1999] EWCA Civ Joi i, [2001] QB 424) through application of traditional breach of confidence principles. 120 There is a sense in the first instance judgment that one problem is that it was a commercial firm who wished to undertake the data collection, and that a non-commercial proposer might have fared better. Yet, due to the cost of testing, drug development can really only be handled by the private sector. If the commercial sector is disabled from collecting data on drug dispensing/usage due to confidentiality fears it may reduce their ability to produce drugs in a more effective manner. 121 The Law Lords' response to the Government's consultation paper on Constitutional reform: A Supreme Court for the United Kingdom' (CP11/03, July 2003). But see Baroness Male's response - House of Commons Constitutional Affairs Committee for its Report on Judicial Appointments and a Supreme Court - though, given this, her lack of view on the need for legislative change in the subsequent Campbell decision is striking (Campbell v. MGN Ltd [2005] UKHL 61, [2005) 4 All ER 793) - this is a complex issue involving a delicate balance between competing rights upon which I would prefer to express no opinion.' 122 I have no objection, of course, to sophisticated moral values.

119

224

The Individual and Privacy

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

134

PHILIP LEITH

BENN, S. I. (1984) 'Privacy, Freedom and Respect for Persons', in F. Schoeman (ed.) Philosophical Dimensions afPrwacy:An Anthology. Cambridge: Cambridge University Press. BENNETT, C. f. and GRANT, R. (1999) (eds.) Visions of Privacy: policy choices for the Digital Age. Toronto: University of Toronto Press. BEKGKAMP, L. (2O02) "The Privacy Fallacy: adverse affects of Europe's data protection policy in an information-driven economy', Computer Law and Security Report 18:1. BOOTH, S. et al. (2004) 'What are 'Personal Data? A study conducted for the UK Information Commissioner'. Sheffield: University of Sheffield, 2004. BRANSCOMB, A. W. (1994) Who Owns Information? From privacy to public access. New York: Basic Books. BURRELL, R. and COLEMAN, A. (2005) Copyright Exceptions. Cambridge: Cambridge University Press. Cabinet Office (2002) Privacy and Data sharing: the way forward for public services, http://www.dca. gov.uk/foi/sharing/index.htm. CULSHAW, M., WOOTTON, L and WYLIE, S. (2005) 'Alcohol dependence and driving: a survey of patients'

knowledge'. Psychiatric Bulletin 27:90-93. DAVIS, S. L (1997) Unbridled Power: inside the secret culture of the IRS, New York: Harper Business. Department of Constitutional Affairs (2002) Proposals for Amendment made by Austria, Finland, Sweden

and the United Kingdom. Explanatory Note, http://www.dca.gov.uk/ccpd/dpdamend.htm. Department for Work and Pensions (2005) Reducing Fraud in the Benefit System. London: Department for Work and Pensions. DEPAULO, B. M. (1991) 'Nonverbal behaviour and self-presentation: a developmental perspective', in R. S. Feldman and B. Rime (eds.) Fundamentals of nonverbal behaviour. Cambridge UP, Mass. DUSKHEIM, E. (1982) The Rules of Sociological Method. London: Macmillan. EDWARDS, L (2004) "Reconstructing consumer privacy protection on-line: a modest proposal',

International Review of Law, Computers S- Technology 18(3): 313-44. EL GUINDI, F. (2003) Veil Modesty, Privacy and Resistance, Berg Publishers. ELEY, S., GALLOP, K, McivoR, G., MORGAN, K. and YATEs, R. (20O2) Drug Treatment and Testing Orders:

Evaluation of the Scottish Pilots. Scottish Executive Social Research. EUAS, N. (1982) State Formation and Civilization; The Civilizing Process VoL 2. Oxford: Basil Blackwell. FISHER, W. (2001) Theories of Intellectual Property', in Stephen Munzer (ed.) New Essays in the Legal and Political Theory of Property. Cambridge Cambridge University Press. CANDY, 0. H. (1993) 'Public Opinion Surveys and the Formation of Privacy Policy1, Journal of Social Issues 59(2): 283-99. GARFINKEL, S. (2oco) Database Nation: the death of privacy in the 2ist Century. Sebastopol: O'Reilley. GILUON, J. (2001) Overseers of the Poor: surveillance, resistance, and the limits of privacy. Chicago: University of Chicago Press. CMC (2004) Confidentiality: Protecting and Providing Information. London: General Medical Council. GOFFMAN, E. (1956) Presentation of Self in Everyday Life. New York: Doubleday. GOFFMAN, E. (1963) Stigma: notes on the management of a spoiled identity. New York: Simon & Schuster. GOFFMAN, E. (1979) Gender Advertisements. Cambridge MA: Harvard University Press. GURRY, F. (1984) Breach of Confidence, Oxford: Clarendon. HAND, D., MANNILA, H. and SMYTH, P. (20oi) Principles of Data Mining. Cambridge, MA: MIT Press. HMSO (1972) Report of the Committee on Privacy, Cmnd. 5012, London. HMSO (1978) Report of the Committee on Data Protection, Cmnd. 7341, London. Information Commissioner's Office (2003) Who Cares About Data Protection? Data Protection Act: Segmentation Research. KUMAR, K. (1997) 'Home: the promise and predicament of private life at the end of the twentieth century1, in J. Weintraub and K. Kumar (eds.) Public and Private in Thought and Practice: perspectives on a grand dichotomy. Chicago: University of Chicago Press.

The Individual and Privacy THE SOCIO-LEGAL CONTEXT OP PRIVACY

225 135

LATTAS, A. (1998) Cultures of Secrecy: reinventing race in bush Kaliai Cargo Cults, Madison, WI: University

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

of Wisconsin Press. LAURIE, G. (2002) Genetic Privacy: a challenge to medico-legal norms. Cambridge: Cambridge University Press. Law Commission (1981) No. no. Breach of Confidence, Cmnd. 8388, para. 2.4. LETTM, P. (forthcoming) Sauezing Information out of the Information Commissioner: mapping and measuring

through on-line public registers. LEITH, P. and MCCULLAGH, K. (2004) 'Developing European Legal Information Markets based on Government Information', International Journal of Law and Information Technology 12(3): 247-81. LLOYD, I. (2004) Information Technology Law, 4th edn. Oxford: Oxford University Press. LONG, E V. (1966) The Intruders: the invasion of privacy by government and industry. New York: Praeger. MACQUEEN, H. (2005) '"My Tongue is Mine am": Copyright, the Spoken Word and Privacy1, Modern Law Review. 68(3): 349-77. MARKESENIS, B. (1999) (ed.), Protecting Privacy. Oxford: Oxford University Press. MARX, G. T. (2003) 'A Tack in the Shoe: neutralizing and resisting the new surveillance', Journal of Social Issues, 59(2): 369-90. MCLUHAN, M. (1962) The Gutenberg Galaxy: the making of typographic man. Toronto: University of Toronto Press. MEAD, G. H. (1934) Mind, Self and Society: from the standpoint of a social behaviourist Chicago: University

of Chicago Press. MEYER, C (2005) DC Confidential London: Weidenfeld & Nicolson. MILLS, C. Wright (1959) The Sociological Imagination, New York: Oxford University Press. MOORE, B. (1984) Privacy: Studies in Social and Cultural History, Armonk NY: M. E. Sharpe. MORGAN, P. and SACHS, }. (2005) The Classic Interviews with Max Clifford. London: Blake Publishing. MORISON, ). and LEITH, P. (1990) The Barristers' World and the nature of law. Buckingham: Open University Press. MOZENA, K. (2002) 'Clean & sober: the essential guide to drug rehab centers', Los Angeles Magazine, April. MURPHY, R. F. (1984) 'Social Distance and the Veil', in F. Schoeman (ed.) Philosophical Dimensions of Privacy: An Anthology. Cambridge Cambridge University Press. NEILL, B. (1999) 'Privacy: A challenge for the next century' in B. Markesenis (ed) Protecting Privacy. Oxford: Oxford University Press. NICOLL, C et al. (2003) Digital Anonymity and the Law. The Hague TMC Asser Press. NOLAN, J. (2003) Reinventing Justice: The American Drug Court Movement Princeton: Princeton University Press. ONG, W. (1982) Orah'ty and Literacy: the technologizing of the word. New York: Methuen. Perri 6 (1998) The Future of Privacy Vols i and 2. London: Demos. PHILUPSON, G. and FENWICK, H. (2000) 'Breach of Confidence as a Privacy Remedy in the Human Rights Act Era', Modem Law Review 63(5): 660-93. PHILUPSON, G. (2003) Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act", Modem Law Review, 66:726-58. PHILUS, B. (2004) 'An Independent Review of (UK), Government Communications', The Phillis Report, Cabinet Office. POULLET, Y. (2000) The "Safe Harbor1 Principles: an adequate protection?, IFCLA Colloquium, Paris, 15-16 June 2000. POWERS, T. (1980) in WC Bier (ed.), Privacy: a vanishing value? New York: Fordham University. PROSSER, W. L (1960) 'Privacy: a legal analysis', California Law Review 48: 338-423. RAAB, C. D. (1999) 'New Directions in Data Protection' in C J. Bennett and R. Grant (eds.) Visions of Privacy, policy choices for the Digital Age, Toronto: University of Toronto Press.

The Individual and Privacy

226

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

136

PHILIP LE1TH

REGAN, P. M. (2003) 'Safe Harbors or Free Frontiers? Privacy and Transborder Data flows', Journal of Social Issues 59(2): 263-82. ROGERS, M. F. (i 980) 'Gofrman on "Power, Hierarchy and Status"', in J. Ditton, The View from Goffinan. London: Macmillan. RULE, I, MCADAM, D., STEARNS, L and UGLOw, D. (1980) The Politics of Privacy. New York: Mentor. SCHOEMAN, F. D. (1984) Philosophical Dimensions of Privacy: an anthology. Cambridge: Cambridge University Press. SIMMEL, G. (1950) The Sociology ofGeorg ShnrneL Illinois: The Free Press. SINGER, E. et al. (2003) 'Attitudes and Behaviour: the impact of privacy and confidentiality concerns on participation in the 2000 census', Public Opinion Quarterly 67: 368-84. TAPPER, C (1989) Computer Law, 4th edn. London: Longman. WACKS, R. (1995) Privacy and Press Freedom. London: Blackstone. WACKS, R. (2004) 'Private Facts: Is Naomi Campbell a Good Model?', SCRIPT-ed r(3): 460. WARNER, J. (2002) 'Data Culling: the scope of the fifth data protection principle', Scots Law Times 37: 303-308. WERTH, J., BURKE, C. and BARDASH, R. (20O2) 'Confidentiality in End-of-Life and After-Death Situations', Ethics and Behavior 12: 205. WES™, A. and BAKER, M. (1974) Databanks in a Free Society. Chicago: Quadrangle. WESTIN, A. (1967) Privacy and Freedom New York: Atheneum. WESTIN, A. (2001) 'Opinion Surveys: What Consumers Have To Say About Information Privacy', Subcommittee on Commerce, Trade, and Consumer Protection, 8 May. WHITEHEAD, A. N. and RUSSELL, B. (1910) Principia Mathematics Cambridge: Cambridge University Press.

Downloaded by [University of California, San Diego] at 23:00 01 May 2017

[11]

Guide to measuring privacy concern: Review of survey and observational instruments*-** S8ren Preibusch* Microsoft Reseorcn, Cambridge CB12FB, England

A B S T R A C T

Keywords: Privacy concern Willingness to disclose Information privacy Measurement Scale development Scale reuse Experiments and questionnaires Observational methods Survey research

The debate about online privacy gives testimony of Web users' concerns. Privacy concerns make consumers adopt data protection features, guide their appreciation for existing features, and can steer their consumption choices amongst competing businesses. However, approaches to measure privacy concern are fragmented and often ad-hoc, at the detriment of reliable results. The need for measurement instruments for privacy concern is twofold. First, attitudes and opinions about data protection cannot be established and compared without reliable mechanisms. Second, behavioural studies, notably in technology acceptance and the behavioural economics of privacy require measures for concern as a moderating factor. In its first part, this paper provides a comprehensive review of existing survey instruments for measuring privacy concerns. The second part focuses on revealed preferences that can be used for opportunistically measuring privacy concerns in the wild or for scale validation. Recommendations for scale selection and reuse are provided.

1. Introduction The flow of personal information sustains our day-to-day use of the Web. It offers personalised services free of charge and at unprecedented levels of convenience, including search, shopping, and socialising. In electronic retailing, behavioural recommendations drive a substantial proportion of sales (Hess and Schreiner. 2012). The advent and global-scale uptake of the participatory Web has led to further proliferation and commodificatjon of personal information. Through location-based services, personal data flows permeate our neighbourhoods. Beyond the Web, utility providers or mobile phone operators extract and market customer profiles with the aim of monetising 'big data' (Telefonica. 2012). In the European Union, three in four consumers agree that disclosing personal information is an increasing part of modern life and necessary to obtain products or services. However, a similar proportion is also concerned they have been asked for unnecessary information in the past and that data they provided to companies may be repurposed (TNS Opinion and Social, 2011).

*This paper has been recommended for acceptance by T. Henderson. •• " Section 3.3 of this article was written while the author was at the University of Cambridge. Computer Laboratory. •Tel.: +441223479798: fax: +441223479700. E-m