Tuesday, January 12, 2010

Bentham's Panopticon - The Threat of Surveillance

In attempting to categorize threats to privacy, one of the more salient categories is certainly surveillance. Of course, some surveillance (warranted searches, cameras in banks, etc.) may not offend our sensibilities, while others (unwarranted wiretapping, use of the PATRIOT Act) may. But, regardless of whether we consider any given instance of surveillance to be just, one fact is inherent to all: surveillance or the threat of surveillance alters human behavior.

For example, when we have reason to believe that the police monitor a certain stretch of road for speeders, we may alter our speeds while traversing that area - regardless of whether there is, in fact, a police officer hiding around the bend. We don't know if we are being watched, but we could be. Of course, this is an innocuous example. One doesn't have to think too hard to come across examples of the threat of surveillance stifling human creativity or attempting to normalize social eccentricities (McCarthy-ist America, Soviet Russia, etc.).

One of the great metaphors used for the threat of surveillance is Jeremy Bentham's Panopticon. The Panopticon is Bentham's design for a prison. What's interesting about this prison is that it uses the threat of surveillance to keep prisoners in check. The Panopticon is a round structure with glass-walled cells lining the circumference of the circle - all facing toward the circle's center. In the center of the circle is the guard tower, an all-seeing monolith (think Barad Dur) that could be filled with guards that could be looking at any particular cell. The prisoners cannot see inside the guard tower, and so they have no way to know whether they are being watched. As such, the most logical thing to do is to behave, just as we slow down when we pass by the potential speed trap. Bentham argues that this device of using the threat of surveillance to keep order reduces operating costs for the prison, as it would not need to retain a full staff of guards.

While this is certainly not an original thought on my behalf (Foucault and others have written about the Panopticon as a metaphor for surveillance in society), I think it's a very useful way of weighing situations where surveillance should be allowed. We should always question whether the x that we are attempting to protect against (in cases where security conflicts with privacy) with surveillance is worth the cost.

Wednesday, January 6, 2010

Defining Privacy

Since last semester ended (a semester where I had a phenomenal class of students, I should say), I have been considering how to start this semester's class, how to explain more clearly than last semester what, exactly, privacy means. In some ways, even for the most erudite scholars, the definition of a privacy violation is similar to Justice Potter Stewart's definition of pornography - "I know it when I see it." In fact, I have heard others go so far as to call privacy a glittering generality the likes of "freedom" and "democracy." In my quest to better explain to my peers, my students, and even myself what, exactly, privacy means, I began reading Dan Solove's Understanding Privacy. Solove is to privacy law what Lessig is to free culture - in fact, I use his book, The Future of Reputation, as the primary text for my class. I knew I could count on Dan.

Solove accurately points out that privacy is an umbrella that covers a wide breadth of related but disparate rights, including freedom of thought, solitude in one's home, freedom from surveillance, control over one's body, control over personal information, protection of reputation, and protection from searches and interrogations. The problem, he posits, is when we attempt to define privacy by abstracting commonalities from these entities to locate a common inheritance (sorry, that is the object-oriented programmer geek in me). Solove notes that it's not possible to abstract a commonality that is sufficiently abstract to cover all cases and with enough specificity to be of value practically in drafting policy.

Thus, Solove embraces Ludwig Wittgenstein's concept of "familial resemblance." He notes that these areas where we desire privacy draw from a pool of common traits the way children's physical features can resemble those of their parents - that is there is no single definition for what should be protected as private. As such, privacy should be considered a set of related values that share some familial resemblance. And, adopting a Pragmatist approach, privacy issues should be evaluated on a case-by-case basis, as conflicts with other values (free speech, security, transparency, etc.) arise.

While all of this sounds very abstract, I believe that it has helped me to get a better handle on why it is so difficult to define what privacy is. I'm pretty sure that I will be drawing on the information in Understanding Privacy frequently in class this semester. I'm looking forward to the start of classes next week and to meeting the students in my class. Hope everyone enjoyed the holidays, and happy new year!