Asmodeus, Stanley Fish, and the Fiction of Privacy
June 4, 2015
Spying governments have been a perpetual boogeyman for many Americans, and the topic is in the news once again. According to a recent article in The New York Times "A federal appeals court in New York ruled that the once-secret National Security Agency program that is systematically collecting Americans' phone records in bulk is illegal. ... In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit held that a provision of the U.S.A. Patriot Act, known as Section 215, cannot be legitimately interpreted to allow the bulk collection of domestic calling records." Current controversies, sparked at least in part by Edward Snowden's revelations about domestic spying, will not be resolved for years if ever.
The subject of spying is so controversial because it violates, or seems to violate, the public's basic right to privacy. But the word privacy is often used glibly, with little discussion or understanding of what it is, why it's valuable, and what the consequences are for willingly giving up privacy. I argue that privacy is largely a fiction and a distinctly modern invention whose status as a sacrosanct pillar of human rights is suspect at best.
John Locke, professor of linguistics at the City University of New York, notes in his book Eavesdropping: An Intimate History that "We all have a desire to sample, even to experience, the private lives of others. This appetite has no name, but it is widely recognized, at least tacitly. It was at the core of Le Diable Boiteux, published by Alain-Rene Le Sage at the dawn of the eighteenth century. In this novel, a limping demon called Asmodeus magically removed rooftops of Madrid's more elegant homes. Exposing the occupants, he told his young student, Don Cleofas, would reveal ‘the springs of their actions, and their most secret thoughts'... Reincarnations of the original ‘devil on crutches' handled similar assignments in German and France. It seemed that whenever anyone wanted to witness private activity, they sent for Asmodeus.... Charles Dickens also begged ‘for a good spirit who would take the house-tops off, with a more potent and benignant hand than the lame demon in the tale..." (Locke 2010, 14).
Privacy means different things to different people--often depending on the context: what information they wish to keep private, from whom, and why. Some people are naturally private and don't like to share information about themselves as a general rule. Others wish to keep immoral or criminal behavior (or a dodgy past) private. Still others aren't concerned about privacy per se--they don't really care if others know the private details of their lives--but instead the potential detrimental consequences of having their private information misused (through identity theft, for example).
Enter the Fish
In his controversial essay "There is no such thing as free speech-and it's a good thing, too," Stanley Fish, a professor of humanities and law at Florida International University, argues that "'Free speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance... Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict" (Fish 1994, 102). Fish writes that "when one speaks to another person, it is usually for an instrumental purpose: you are trying to get someone to do something, you are trying to urge an idea and, down the road, a course of action. These are the reasons for which speech exists and it is in that sense that I say that there is no such thing as ‘free speech,' that is, speech that has as its rationale nothing more than its own production."
This is in some ways a rather self-evident observation: of course communication serves a purpose and promotes an agenda; of course people don't speak or write without a reason. Even in the context of nonverbal communication such as art, there is a message. In some cases--for example the abstract expressionism of Mark Rothko or Jackson Pollock--the intent of the piece is open to the viewer's interpretation and independent of any overt artistic message or agenda. Nonetheless, the act of creating art is inherently communicative.
But Fish goes further: "The condition of speech being free is not only unrealizable, it is also undesirable. It would be a condition in which speech was offered for no reason whatsoever. Once speech is offered for a reason it is necessarily, if only silently, negating all of the other reasons for which one might have spoken. Therefore the only condition in which free speech would be realizable is if the speech didn't mean anything. Free speech is speech that doesn't mean anything. Once meaning, assertion, predication get into the act the condition of freedom has already been lost and, as I would say, well lost because you want speech to mean something; you don't want to live in a world where people's utterances are weightless-neither commit to anything, nor illuminate or challenge you in any way. The impossibility of free speech is one of the happy facts of our condition and not a fact to be lamented. There's no such thing as free speech and it's a good thing too.... Freedom of speech is a conceptual impossibility because the condition of speech's being free in the first place is unrealizable" (Fish 1994, 115).
Furthermore, "There is no-one who believes that everything should be said. Most of us today would not say, ‘Well, of course, you understand I don't mean toleration of Catholics.' But we would say things like, ‘I don't mean toleration of neo-nazis' or ‘I don't mean toleration of discourses advocating child molestation.' There is no-one in the history of the world who has ever been in favour of free speech." Fish perhaps overstates his case; surely some people truly do subscribe to the sentiment attributed to Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it." Nonetheless, he raises an interesting issue; in the same vein, one could argue that privacy is a conceptual impossibility because the condition of one's life being truly private is in the first place is unrealizable. If speech were truly free it would be meaningless, Fish argues, and if privacy truly existed, it too would have no meaning.
The Fiction of Privacy
What would true privacy look like, as Fish might envision it? Just as Fish argues that free speech is anathema to (or at least not inherent in) the human condition, the same can be said for privacy. While privacy is often considered some sort of inalienable human right akin to "free speech" or the pursuit of happiness, the fact is that privacy as we think of it today barely existed for much of human history. In a discussion of privacy John Locke (2010, 83) notes that "Homes-what they were, physically, and what they afforded psychologically-remained unchanged, essentially, for thousands of years. In seventeenth century England most lower middle-class families still had little or no furniture-they continued to sleep and sit on the floor-and in semi-rural areas the situation was little better a hundred years later. With so little comfort in their homes, and so little interest in home improvement, one gathers that our ancestors were ambivalent about walled life."
Indeed, bedrooms--the parts of our homes often held most private, not the kitchen, dining room, or living room--are a relatively new creation: "For thousands of years there were no ‘bed-rooms.' As recently as the late eighteenth and early nineteenth centuries, people were still sleeping all over the house...There were quite commonly too few beds for each person to have one to himself. In some peasant homes, entire families slept together, partly in response to serious heating problems. In late eighteenth century Paris the lower classes ‘still did not consider sleeping to be an entirely private activity,' according to historian Rafaella Sarti. ‘Overall,' she wrote, beds ‘were a more crowded and promiscuous affair than they are today, and much of the population did not have one entirely to themselves'" (Locke 2010, 99).
Locke also discusses several cultures in which privacy is not only not desired, but viewed as an impediment to peace and social harmony. Societies including the !Kung of Southwest Africa; Australia's Western Desert aborigines; Malaysia's Semai people; and other groups in Samoa, India, Brazil, and elsewhere, have little use for privacy: "Eavesdropping offers psychological benefits... In order to preserve some level of peace and harmony, people in interdependent groups need to be aware of mood changes, and if they live in close proximity to each other, they are. They see facial expressions, a tightening or loosening of the body, and subtle movements of the hands" (Locke 2010, 72). (Note 1).
Privacy is often held up as a self-evident good or human right, though this was not always the case. Robert Ellis Smith, a privacy advocate who launched Privacy Journal in 1974, notes that "Privacy as a legal concept is an American invention. Jon Davenport, a Puritan cleric, used the term in the 1630s. He described privacy in terms of solitude, a respite from a day of engaging in public affairs" (Rowe 2002). Privacy advocates have sounded alarms over high-tech data mining computer surveillance programs such as Carnivore, a system implemented in 2007 by the Federal Bureau of Investigation to monitor e-mail and electronic communications. It is to be expected that emerging technologies such as Carnivore--and its successor Narus Insight, used by the National Security Agency (Bamford 2012)--raise privacy concerns. Indeed, every new technology has had the same effect. Smith notes that even the invention of photography caused alarm: "It must have been traumatic for people to realize that somebody else could possess something they barely possessed themselves-even mirrors at the time weren't that good or common. This [photographic] image could be carried away and used by someone else, beyond the subject's control. That's what I think led to the development of the concept of privacy in the 1890s" (Rowe 2002).
If privacy as a legal concept is an American one, it's not surprising that many associate issues such as freedom of speech and privacy with America. However once again a review of history suggests that there's no such thing as privacy (as popularly conceived)--and it's a good thing, too. America's founding fathers often relied on privacy and anonymity in their personal and political affairs. Benjamin Franklin, for example, wrote under many pseudonyms (such as "Poor Richard" Saunders, Silence Dogood, Harry Meanwell, Alice Addertongue, Polly Baker, and Timothy Turnstone), and important American political pioneer such as George Washington, Thomas Jefferson, and Alexander Hamilton "all used ciphers to mask their political opinions. The men who wrote The Federalist Papers published under aliases" (Rowe 2002).
True and complete privacy is impossible in the real world, especially for those who are employed and work in the public sphere. "How and when does the right to privacy disappear from our daily work life?," asks Jacob Green in Playboy magazine. "Courts have recognized a worker's right to privacy in cases that don't involve online access... Computers are a different matter. Since the company owns the machines, the courts reason, it has the right to view anything stored on them.... Employer eavesdropping isn't limited to e-mail messages. A product called Spector takes surreptitious digital screenshots every few seconds of whatever happens to be on an employee's monitor.... Even a brief visit to a website deemed unacceptable can become grounds for dismissal. Once you've sent personal e-mail or peeked at eBay, even for a moment, you're at the mercy of your employer, who can dredge up just about any ‘violation.'... If you use your computer to find health information on your lunch break, to e-mail a pharmacy to fill a prescription, to send your lawyer a note about your divorce or to take a look at a job site to find out what you should be getting paid, your boss can know about it as soon as you do. Once your fingers touch the keyboard, your expectation of privacy disappears" (Green 2000). This sentiment is echoed by Rodger Doyle, writing in Scientific American: "The U.S. Constitution gives substantial protection to privacy in the home but not where Americans make a living. A 1998 survey of 1,085 corporations conducted by the American Management Association shows that more than 40% engaged in some kind of intrusive employee monitoring including checking of e-mail, voice mail, and telephone conversations; recording of computer keystrokes; and video recording of job performance" (Doyle 1999).
Corporations buy and sell personal details about customers in an estimated $3 billion a year market for personal data (Eisenberg 1999), offering information on everything from medical records to financial records. In 1996 the Federal Communications Commission established the Telecommunications Act, which established "opt-in" privacy provisions. Under the Act, consumers had to give express consent to have their personal information used in advertising and marketing campaigns. This was vigorously opposed by marketing associations, but became law because of overwhelming public support.
Rejecting the Fiction of Privacy
It is undeniably true that privacy is sometimes violated by authorities, but far more often it is freely abdicated. Robert Ellis Smith, author of several books on privacy including Ben Franklin's Web Site: Privacy and Curiosity from Plymouth Rock to the Internet, notes that very often privacy is freely--even eagerly--given up. "Just look at TV talk shows, at talk radio, at the variety of magazines devoted to confession. Despite the lip service we pay to privacy, we don't seem to be offended by prying questions. In fact we're flattered to be asked....[In early America] It was one's duty to keep an eye on others to make sure they were meeting their spiritual obligations. Puritan leaders instructed members to inform on each other. This was not considered snooping but a duty to the church. There were tithingmen who checked out single persons living alone, Sabbath breakers, tipplers, debauchers, and the like. They were free to enter houses" (Rowe 2002).
As we have seen, new technologies have brought new concerns over lack of privacy; hardly a living adult has not been warned ad infinitum about the dangers of the Internet: the phishes and trolls and opportunities for identity theft, economic fraud, and so on. Yet nearly a billion people have eagerly chosen to engage in online activities that compromise their privacy. Facebook, for example, allows real-time diaries and blogging, so that people can share details of their lives, both mundane and intimate, with thousands (and potentially hundreds of millions) of complete strangers: everything from what they ate for breakfast to their loved ones, family members, and even personal photographs. Twitter allows instant, 140-character updates as well, from anywhere in the world. These social networks do offer privacy protection, and users typically have significant control over what kind of information is shared, and with whom. Still, anyone who wishes to spend an hour or two reading a person's Facebook profile and posts can gather an enormous amount of personal information, including about one's love life, jobs, friends, pets, marital status, personal schedules, and much more.
Why are people so eager to give up their privacy? In many cases, they do it to connect with other people or in exchange for promotion and publicity; these social networking tools help promote and advertise people and events. Celebrities and corporations both large and small use Facebook to reach their customers, informing them about special events and new releases and products. It's is a tradeoff, an information exchange: If the consumer is willing to give up basic personal demographic information (name, e-mail address, age, gender, etc.) in the form of a survey feedback or an e-mail where they can get coupons and special offers and discounts, they get special benefits. This participation in "privacy invasion" is largely voluntary. The same principle applies in airline security: no one is forced to undergo x-ray scanning. If a traveler objects to intrusive body searches and pat-downs, they have several other options, including backscatter x-ray machines. If the person still objects, they can simply choose to take a different mode of transportation such as car, bus, train, or boat. Obviously this can create significant inconvenience: driving or taking a train to one's destination may be impractical. But the basic principle remains; the consumer has a choice: he or she is not forced to give up any more privacy than they wish-and those who give up that privacy and personal information will enjoy benefits including financial savings, convenience, and ease of keeping tabs on dozens of friends.
Just as Fish asserts that free speech is an untenable illusion, so too is privacy. "Here is a bold prediction," wrote an essayist in The Economist: "All these efforts to hold back the rising tide of electronic intrusions into privacy will fail... Privacy is hard to define or protect in the abstract. And so each benefit of the new information economy-safer streets, cheaper communications, more entertainment, better government services, more convenient shopping-will seem worth the surrender of a bit more personal information." Furthermore, privacy laws "are based on a novel concept: the individuals have a property right to information about themselves. Broadly enforced, such a property right would be antithetical to an open society. It would pose a threat not only to commerce, but also to a free press and to political activity, to say nothing of everyday conversation... The same technology that is destroying privacy makes it easier to trap stalkers, detect fraud, prosecute criminals, and hold government to account. The result could be less privacy, certainly-but also more security for the law-abiding.... If most urban streets are monitored by intelligent video cameras that can identify criminals, who will want to live on a street without them? If most people carry their entire medical history on a plastic cards that the emergency services come to rely on, a refusal to carry that card could be life-threatening... In the village, everybody knew everybody else's business. In the future, nobody will know for certain who knows what about them. That may be uncomfortable. But the best advice may be: Get used to it" (Economist 1999).
In his book The Transparent Society, David Brin notes that "attempts to win freedom by evading the eyes of the powerful have usually failed, for two reasons. First, the rich and mighty always have better surveillance technology and more of it. [Secondly], easy anonymity raises temptation and provides cover for those who have power to abuse. The same mask that that lets you skulk unrecognized through the red-light districts of cyberspace can be work by some bandit as he uses a bogus storefront to snatch your credit card number with impunity. If executives at the tobacco companies had communicated via encrypted messages sent through anonymizing mail servers instead of by signed memoranda, would their deceit ever have been exposed?... Privacy laws and encryption, used sparingly, can help protect against violations that cause real harm. But they should not become an automatic response to vague threats. You don't don a balaclava before going to the mall, even though you are under constant surveillance as you walk through the stores. You do, however, show the clerk at the mall your driver's license when you pay by check" (Gibbs, 1999).
So if true privacy (like Fish's concept of "free speech") is little more than an elusive figment of our collective romantic cultural imagination, where does that leave us? Perhaps back at the beginning, with the voyeuristic demon Asmodeus and his (very human) penchant for wanting to know our private lives and details. "Existence as a human being," wrote social philosopher Edward Shils, ‘entails being under scrutiny.' The urge to eavesdrop is a natural disposition, one that evolved anciently, develops early, is expressed universally, confers a number of important benefits, and has a long history, dating back to the Middle Ages.... Information has always been a precious resource... We are informavores to be sure, but the information that is important...is the kind that radiates from our fellow humans, merely by their living. If we are to find out the answer to humankind's most important questions--who we are--it is necessary to know what others are like... To evaluate others in this way, we must ascertain what it is like for them to be them. This requires that we enter their patch, the little piece of the world that is uniquely theirs" (Locke 2010, 20). The fact that privacy doesn't exist benefits both the individual and society; this widely-revered, quasi-sacred tenet is a myth-and it's a good thing too.
Note 1. Locke argues that the practice of beneficial invasion of privacy even extends to the animal world: "If an animal forages on his own, he must personally inspect every promising nook and cranny, a hit-and-miss endeavor that can be tiring. But it is possible to scan a fairly large area visually without roaming around" by eavesdropping on other animals. Another benefit is safety: "By sampling their environments, animals get information about predators, enabling them to take evasive action before it's too late. The Galapagos islands are home to diverse species, including mockingbirds and marine iguanas. As different as they are, these species have something in common. They are both prey to a third resident-the Galapagos hawk. When mockingbirds see a hawk, they issue an alarm call, as their species evolved to do, presumably for the sake of other mockingbirds. But iguana can hear the alarm calls of mockingbirds, and they too run for cover" (Locke 2010, 42).
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