When Warren and Brandeis published "The Right to Privacy" in 1890, they didn't get too hung up on definitions. Rather, they defined privacy as "the right to be let alone." This definition would include photographs taken of you without your consent and the right to not be bothered. Yet the way we think about surveillance today is much different, and many suggest that the harms of a surveillance state extend beyond what we might overtly notice. Now, simply defining privacy as "the right to be let alone" doesn't feel quite right, but why is that? Many privacy scholars would suggest that it feels limited because it completely ignores context.
Traditional privacy arguments treat privacy in terms of economics, labelling privacy as information privacy and information as a property right, or in terms of the self, labelling privacy as a fundamental right of the liberal self. According to Helen Nissenbaum, in "Privacy as Contextual Integrity," this distinction has shaped the privacy debate along three common principles: the protection of individuals against intrusive government agents , the restriction of access to sensitive or intimate data, and the limiting of intrusions into spaces deemed private. In other words, most conventional privacy discussions focus on the type of actors involved, the types of information collected, and the type of spaces at risk. In each, the debate draws a dichotomy between two poles: government vs. individual, sensitive vs. non-sensitive, and private vs. public. Nissenbaum suggests that this approach is fundamentally limited by its lack of recognition of context.
In other words, our views on privacy change depending on the context we are in. Intuitively, this feels true. I may share things with a gathering of close friends that I wouldn't yell at a huge party (appropriateness, as Nissenbaum defines it). As we move through life, we can be thought of as entering different spheres of privacy, with the standards shaped by ourselves and the context we inhabit. This, Nissenbaum calls Contextual Integrity, which uses common norms as a standard for privacy. She deems violations as follows:
[W]hether a particular action is determined a violation of privacy is a function of several variables, including the nature of the situation, or context; the nature of the information in relation to that context; the roles of agents receiving information; their relationships to information subjects; what terms the information is shared by the subject; and the terms of further dissemination.
Nissembaum's discussion deepens the complexity of the privacy discussion by shunning the dichotomous approach of the three principles in favor of a more nuanced concept of context. However, Julie Cohen's discussion of privacy and surveillance in "Configuring the Networked Self," deepens Nissenbaum's contextual approach to privacy.
Cohen acknowledges the importance of context to understanding privacy, but she warns that context should not be understood as a backdrop to privacy discussions. Rather, Cohen's work rejects popular notions of the liberal, individual self in favor of her concept of the "situated subject." In Cohen's estimation, individuals are part of a network of collective thought that supplements their own, and these situated subjects grow up within a distinct cultural context. Simultaneously, culture and subjectivity are evolving in nearly unpredictable ways as individuals "play" in their environments. The concept of play is a form of pushing boundaries and developing personally within one's own cultural context. Because subjectivity emerges and evolves "between the individual and culture," according to Cohen's discussion, surveillance can affect its development by altering the context in which these processes occur.
Finally, we get to surveillance, which merges the contextual discussions of Cohen and Nissenbaum. In a surveillance state, of which the classic example is Bentham's panopticon, the watchers attempt to place the surveilled individuals in preconceived categories. Much like in Nissenbaum's discussion of data mining, the results are then used as a normative guide for the future while serving as a recorded history simultaneously. Thus, the preconceived categories can influence the development of subjectivity (which is a product of context and the individual) by shaping context. Simultaneously, the act of monitoring and surveillance is designed, in many cases, to alter behavior. It changes the power dynamics of a space, real or virtual, in favor of the watchers. By altering public spaces, new limitations are placed on the play of subjectivity, having potentially negative social impacts.
Nissenbaum's approach focused heavily on the context of the situation, but Cohen takes her discussion one step further by discussing the factors that shape that context. In a surveillance state, whether propagated by the government or by citizens with so-called coveilling technologies, the factors that shape context shift considerably. Cohen's conclusion, then, is deceptively simple:
Privacy’s goal, simply put, is to ensure that the development of subjectivity and the development of communal values do not proceed in lockstep.
In other words, privacy sets limits and boundaries between the play of subjectivity and the influence of society.
This is certainly a far cry from the "right to be let alone," but in many ways a context-based approach feels more accurate. Context varies greatly across communities and around the world, which leads to major differences in privacy conceptions between the US, the EU, and even Eastern Asia. Perhaps our discussions of surveillance and privacy, then, should reflect a more nuanced recognition that one rule or statue may not be equipped to handle everything.