Privacy as Structural Coupling

Chapter 5

Privacy as Structural Coupling¹

Increasingly recognized as an irreducible ground for claims making, legislation and adjudication around the world, the right to privacy has eluded adequate theorization.² Confusion persists as to what exactly the right to privacy is and why it is worth protecting.³ A glimpse of the challenge is provided by the European Court of Human Rights’ (ECtHR) interpretation of “private life,” as protected by Article 8(1) of the European Convention on Human Rights. According to the Court, private life, in addition to:

elements such as gender identification, name, sexual orientation and sexual life … [includes] a right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world … even in a public context … [and perhaps in] activities of a professional or business nature.⁴

It is not always clear where and when legally valid expectations of privacy exist. Nor is it obvious how privacy claims would fair in the legal balance against other legally recognized interests, such as promotion of public morality, national security, crime prevention or freedom of expression. If privacy protects sexual orientation and one’s right to establish relationships with others, does it also confer a right to same-sex marriage? If it grants a right to establish relationships with the outside world, does it also confer a right to sever the ties – a right to die? Which activities are essential to identity and personality formation? Does foxhunting qualify? Why?

For decades, legal, political and philosophical approaches to privacy have tried to clarify such ambiguities by devising valuable taxonomies and typologies, addressing conceptual differences between privacy and other rights (e.g., equality, property, autonomy, liberty, dignity, intimacy, anonymity, confidentiality, seclusion, secrecy and security), and offering normative evaluations of privacy policy and adjudication in various jurisdictions.5 Having long pondered the matter, Dean Robert Post sums it up succinctly:

Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.⁶

It is rightly suggested that our bounded rationalities rely on simplified mental models or “frames” that assist us in making sense of the highly complex and contextual character of privacy issues.⁷ A persistent challenge has been to identify these frames and provide an adequate account for their variation and selection, especially in the eyes of the law—to explain how the legal meaning of privacy changes across time and social context. The challenge is augmented as incessant technological innovation and the rise of social media make ever more possible the unobtrusive collection of data on previously unimagined scales and facilitate processing and re-use of personal data regardless of their original context. Thanks to Edward Snowden’s revelations, we now know that the US National Security Agency and the British Government Communication Headquarters (in close partnership with intelligence services in Canada, Australia and New Zealand) engage in massive and unprecedented surveillance and bulk collection of digital data, over the processing and re-use of which no one has effective control.⁸

Of course, governments and security agencies are not the only culprits. Non-state actors, including social media, have become increasingly engaged in massive monitoring and experimental manipulation of populations. As such monitoring no longer only concerns disciplining minds and bodies, but also involves profiting from their “data doubles” (i.e., the fragments of information left behind in daily transactions)—the older “Big Brother”9 and “panopticon”¹⁰ metaphors are giving way to “surveillant assemblages.” Rather than a hierarchical structure in which a few watch the many, surveillant assemblages of our time appear as “rhizomatic” structures from which no major population group can escape. Now the many can also watch the few and the many.¹¹

The rise of “Big Data” (i.e., identifying, sifting, sorting and analytic refining of massive amounts of information in search of patterns and “predictive analytics,” and applying the results to new data for various purposes)¹² is widely seen as “the key privacy challenge of the twenty-first century,”¹³ hence the continued debate as to the value and possibility of maintaining “semantic discontinuity”¹⁴ both within and between networks, i.e., limiting the value of information to its particular setting and specifying its meaning accordingly. To protect privacy, it is now thought that law has to maintain and widen the gap between different contexts rather than collapse them. A fundamental question is how to distinguish the boundaries of the many social systems constituting this context; how to recognize boundary-crossings of information and distinguish those which are legitimate from those which are not. While the social-psychological, institutional and social network dimensions of this semantic discontinuity have been recognized,¹⁵ the significance of the functional differentiation of societal systems is yet to be made explicit.

Using Warren and Brandeis’ (1890) formative conception of privacy as a reference point, this chapter grounds the rise and evolution of the right to privacy in dynamics of functional differentiation. A complementary reading of Durkheim, Simmel and Luhmann shifts the debate from the “individual/society” dichotomy to the boundary tensions between functionally differentiated social systems. We discuss the societal significance of privacy protections as structural couplings between social systems. Finally, a preliminary analysis of privacy jurisprudence of the US Supreme Court and the ECtHR demonstrates the merits of this conceptualization of privacy for understanding the grounds and significance of doctrinal developments.

Selective Self-Presentation

Warren and Brandeis’ article “The Right to Privacy” (1890) is often cited as the first call in the US to recognize privacy as a distinct and irreducible right.¹⁶ Treating privacy as a general right to the “immunity of the person,” Warren and Brandeis based the necessity of its legal recognition on the growing importance of “solitude” and “retreat” for the individual in the face of the increasing “intensity and complexity of life.” This, of course, was not a call for creation ex nihilo. The common law had already institutionalized some aspects of privacy, albeit not in that name. Over time, the meaning of protection of the individual in his person and property had been expanded, from initial protection of the body and tangible property (against battery, destruction, and theft) to one’s spiritual, emotional and sensory nature, reputation, goodwill, confidence, trade secrets, trademarks and products of the mind. But advances in technology and sensationalist journalism, Warren and Brandeis believed, had rendered such protections obsolete. In a society of strangers with rapidly changing communication technology, a “whisper in the closet” could be “proclaimed from the house-tops.” A new foundation was required to extend previously existing protections to “personal appearance, sayings, acts and personal relations, domestic or otherwise.” The individual required protection for her “inviolate personality,” not only in contractual and confidential relations, but also “against the world.” The value of this right, Warren and Brandeis argued, lay not in the capacity to profit from such communications, but “in the peace of mind, or the relief afforded by the ability to prevent any [communication] at all.”17

While Warren and Brandeis are often remembered for their emphasis on privacy as a “right to be let alone,” they perhaps provide the first conception of privacy as a communicative right: a right to selective self-presentation; to control how, when, where and to whom particular aspects of one’s life and personality are communicated.¹⁸ Since then, a constant difficulty has been to find this principle of selection, explain its variation from one social context to the next, and find a legal ground for its control by the individual. The following seeks the answer in structural transformations of modern social communications and the problems of social complexity thus generated.

Moral Individualism and Division of Labor

Durkheim did not explicitly address the question of privacy and its relation to social communication, but he initiated inquiry into structural conditions that augment respect for individual rights in modern times. While moral and political philosophy sought the explanation in enlightenment, and economics fell back on satisfaction of individual needs, Durkheim saw “moral individualism” as a “collective representation,” a reality sui generis. To understand its form and content, he insisted, we had to examine the constitution of society, not the state of individual consciousness.

This promising beginning, however, did not yield an adequate description of the underlying structural transformations. Committed to a hypostatized conception of society, Durkheim downplayed the radical implication of functional differentiation. He noted that “collective consciousness” began to lose its religious content, and temporal life was gradually released from rigid codes of conduct, as increasing size, density and division of labor differentiated the economy, politics and other societal functions from religion. Yet, he still saw society as a moral unity. Making an analogy between our “feeling of horror” at the sight of an attempt on an individual’s “life … liberty … and honor” and that of a “believer” seeing his “idol profaned,” he treated “moral individualism” as a secular proxy for religion: “the only tie which binds us all to each other.”19

Acknowledging other “collective representations,” i.e., other ways that “society conceives of itself and the world that surrounds it,”²⁰ Durkheim did not see them on a par with (i.e. functionally equivalent to) morality. He failed to account for the rise of “moral individualism” in a context of the multiplicity of our societal bonds and absence of a unified hierarchy among them.

Groups and Secrecy

Simmel helps us take two important steps in that direction. First, extrapolating from his analysis of “secrecy,” we can ground the increasing significance of privacy in the fragmentary character of modern individuality, and account for this fragmentation in terms of transformation of the pattern of group-affiliation.²¹ A key is the indispensable role of abstraction in group formation. Members of each group encounter unique individuals as exemplars of an abstract category, “as if through a veil,” that simultaneously “hides the peculiarity of the person [and] gives it a new form.”²² Group-formation is possible only by virtue of these partial and incomplete representations, which treat the individual as the agent of a definite performance. Yet, no person can be reduced to such circumstantially restricted functions; no category can fully represent an individual. Indebted to each category, the individual eludes them all.

With the transition to modernity, concentric group-affiliation, based on membership in corporate bodies, is replaced with participation “as an individual” in intersecting groups.²³ While the heterogeneity of the multiple groups in which one participates provides individuals with considerable leeway, any such affiliation, “the state, the party, the family, friendship or love,” can lay “relentless,” “one-tracked and monopolistic” claims on the individual.24 Thus, the individual can never participate in a group without simultaneously confronting it.²⁵ The modern pattern of group-affiliation has “mutually reinforcing” conflicting and integrating tendencies. The cost of increasing individual freedom is increasing “insecurity,” “psychological tension” and even “schizophrenia.”²⁶ Nonetheless, the more numerous the abstract categories under which an individual can be temporarily subsumed (i.e., the more complex and differentiated the forms of sociation), the greater the opportunities for refined individuality.

If human sociation is “conditioned by the capacity to speak,” Simmel suggests, it is also “shaped by the capacity to be silent.”²⁷ Unique and contingent patterns of participation produce singular configurations of silence and communication, truth and untruth, and construct unique individuals who can survive only in a play of shadow and light rather than full publicity. That is the only way individuals can protect their distinctive personalities in the midst of endless claims and counterclaims of various groups in which they participate.²⁸

Secrecy, a universal element of structures of human reciprocity in all societies, plays an important role in the development of modern individuality. It “produces an immense enlargement of life … offers, so to speak, the possibility of a second world alongside the manifest world, and the latter is decisively influenced by the former.”²⁹ In some respects, modern society can handle more secrecy than other societies. The reason is not necessarily individuals’ willful concealment from one another, but increasing differentiation of both social structures and individual personalities.

This, of course, is not a solitary achievement. Smooth navigation in this intricate web requires generalized tact and discretion; collective respect for the “ideal sphere” surrounding “every human being.”³⁰ As requirements of courtesy, civility and discretion, initially developed for sociability among royal courtiers of diverse social origins, expand to the rest of society,³¹ respect, honor and dignity, once privileges of high social status, become generalized expectations. Today everyone expects respect for their public face, as everyone is expected to have one worth protecting.³² The distinction between “back-stage” and “front-stage” and the arts of impression management become universal conditions of sociation.33

Simmel’s second, often neglected, contribution to understanding the structural context of the rise of privacy is his emphasis on the autonomy and objectification of cultural forms, the background against which secrecy, as a social form, “receives and releases contents.”³⁴ This insight takes us beyond secrecy to privacy; from managing the conflicting claims of intersecting groups to handling the incommensurability of differentiated social worlds.

Akin to Kant’s a priori categories of cognition (and similar to Luhmann’s conception of functionally differentiated societal systems), cultural forms function as gestalts for the selection of certain elements from the raw material of experience and their retention as recognizably meaningful events. Objectification of these forms and their independence from subjective states of individual consciousness “decisively differentiate[s] the quanta of knowledge and ignorance necessary for confidence” in modern society:

The modern merchant … the scholar … the leader of a political party … all these know … only exactly that and no more about their partner which they have to know for the sake of the relationship they wish to enter.³⁵

This decisive differentiation has become possible through the “fundamental circularity” (or self-reference) of cultural forms in modern times. Each form has become a world unto itself, able “to shape the totality of life contents into a self-contained, irreducible world of experience.”³⁶ Legal precepts are valid only by reference to other legal precepts, scientific propositions with reference to other scientific proposition, etc. If each group sees the individual “as if through a veil,”³⁷ one may say that each cultural form casts a unique veil upon the entire world.

Therefore, what we need to know and ignore about one another varies not only as we move from one group to another, but also as we shift our frame of reference from one world (or system) to another; from the world of economy to that of politics, religion, science or art. Each world provides a distinct way of constructing social reality, an equally plausible way of selecting and connecting social communications. Thus, in making sense of action and experience, the individual is torn not merely between various one-dimensional and monopolistic claims of particular groups in which she participates, but also, and perhaps more importantly, between incommensurable rationalities of these differentiated social worlds. For example, making sense of abortion by reference to the healthcare system, religion, law or the economy yields radically different constitutions of involved actors and their rights and duties, from pregnant women and physicians, to priests and pastors, to legislators, judges and lobbyists, to funders and bombers of abortion clinics. Modern individuality is predicated not only on unique patterns of group-affiliation, but also on unique situational arrangements of these incommensurable worlds by each individual in making sense of actions and experiences deemed private.38 Privacy conflicts and their legal resolution need to be examined against a backdrop of the differentiation and interpenetration of these worlds.

These insights easily dovetail with the theory of functional differentiation and increasing complexity and contingency of social communications in modern times.

Social Systems and Privacy

As discussed in the Introduction and demonstrated throughout our analysis, the most fundamental problem of social communication is selection. At issue is not only selecting which information is worth communicating, but also selecting the manner in which it is conveyed and the system with reference to which it is understood. A successful communication requires congruent system-reference among all three selections: information, utterance and understanding. How this congruence is achieved varies according to the type and form of social systems. Interaction systems rely on mutual perception, organizations rely on decision networks, and societal systems rely on specific media or codes and programs. While society and organizations cannot exist without interaction, a gulf has emerged between the ethics of face-to-face interaction and the requirements of communication in organizations and societal systems. This chasm allows each type to emerge and operate beyond the communicative requirements of the other two. No longer required to implement organizational programs or abide by societal expectations, interaction systems allow forms of intimacy irreconcilable with organizational or societal expectations. Organizations stabilize improbable modes of collective conduct without either societal consensus or the moral commitment of their members. And, free from requirements of mutual perception or specific criteria of membership, societal systems include all communications that employ their system-specific codes for communication selection.³⁹ Nonetheless, interactions can become informative for organizations if they are used as premises for decision-making. Both interactions and organizational decisions can become informative for societal systems if they are coded and connected to other coded events. The polysemic character of privacy lies in the multiple, heterarchic and contingent possibilities for such connections.

A key difficulty, therefore, is to distinguish between legitimate and illegitimate selection and connection of communication, especially in the context of the universal scope of systemic codes. To theorize privacy with an adequate range of empirical applicability, one must move from first-order observations, concerning what privacy is, to second-order observations, concerning how privacy is observed. Here observers are not only individual persons with unique dispositions and preferences, or organizations with specific membership criteria, but are also societal systems and their universally applicable codes, which can constitute events and actors and cut across organizations and networks.40