Saturday, February 28, 2009

Control yourself, or at least your “core” self

One of the dominant definitions of privacy—particularly in the policy world but by no means confined there—is that of control over personal information. Certainly it influences data protection law in Canada, which requires organizations to obtain the consent of individuals for the collection, use and disclosure of personal information. One of the great advantages of such a model is that it does not limit protection to a particular sub-class of personal information such as information that is sensitive and intimate—“personal information” is simply information about an identifiable individual. This makes such models potentially more responsive to information practices that rely less on intruding into a sensitive sphere and more upon compiling pieces of information that, on their own, are not sensitive and may even be “public.” However, the breadth of a control-model is also its Achilles heel: to create a workable scheme one needs many exceptions and without careful thought these may be clumsily introduced. Canada’s experience with these regimes bears this out, and I have documented these problems elsewhere.

For the purposes of this blog, I want to focus here on a particular strategy for limiting the breadth of a control-over-personal-information model of privacy that is popular in Canadian jurisprudence: the idea of a "biographical core." Canadian Supreme Court constitutional privacy jurisprudence (arising out of the search and seizure context) has often endorsed ideas like control over personal information in relation to informational privacy. However, most of the real work is in fact being done by a much narrower idea. Informational privacy is said to protect one’s “biographical core of personal information,” which has been defined as including “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant) This narrowing of personal information to one’s biographical core is also present in data protection regimes, although less explicitly, because of the need to provide some personal information with stronger protection than other information (for example, this sometimes plays out in debates regarding the type of consent required or in how a balancing test is implemented).

I have pointed out this trend at a number of practice-oriented forums and usually get one of two responses. The first, from decision makers, is that of course they have to operate with some idea of a “biographical core” because some information is more sensitive than others and this is the only way to properly engage in a privacy risk assessment. The second, from various privacy advocates, is shock and dismay that the privacy community is reverting to what looks like an idea of sensitive and intimate information that seems wholly unsuited to meet current privacy challenges.

I, however, think that privacy-as-protection-of-one’s-biographical-core has far more in common with privacy-as-control-over-personal-information than simply its pragmatic use to narrow an overly-broad definition. They both draw upon a similar idea of the self.

This becomes readily apparent if we consider the work of Alan Westin in his influential book, Privacy and Freedom. Westin is often cited for this classic privacy-as-control statement:

Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. (p.7)

But Westin also goes on to write:

privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve. … [E]ach individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others (p. 7)

The most serious threat to the individual’s autonomy is the possibility that someone may penetrate the inner zone and learn his ultimate secrets, either by physical or psychological means. (p.33)

From this we can see that Westin’s claims regarding control over information are in service of an idea of privacy as social withdrawal—an idea that lines up with more traditional privacy ideas such as the protection of secret, sensitive and intimate information. Moreover, this withdrawal is ultimately in service of the protection of an “inner zone” that parallels the Supreme Court of Canada’s biographical core. Social interaction is something that is balanced against this need for withdrawal, something that is in constant tension with it—which echoes the difficulty that many judges have in understanding why someone might have a privacy interest in information that has been voluntarily disclosed to others, or in regards to something that has in some context been made “public.”

There are other alternatives for thinking about the self and privacy. Suppose instead that we took up the challenge posed by some of the first generation philosophers of technology that we need to rethink the modern subject if we are to properly respond to the challenges of technology. Suppose, for example, that instead of the idea of an individual with an inner core transparent to itself upon solitary introspection, we posited a self that is in fact formed through social interaction. The point of privacy would not be to protect the conditions of social withdrawal in order to maintain the integrity of such a self—it would be to protect the conditions of social interaction in order to provide the basis for identity formation in the first place.

I am currently working on outlining an account of privacy such as this. Inspired explicitly by Goffman, but influenced by many others, I want to claim that privacy should be understood in terms of protecting our capacity for self-presentation. This “self” that is presented may or may not be different in relation to different “others,” may or may not be constituted through these relationships, and may or may not vary over time and across contexts in contradictory ways—in other words, it stays far away from positing anything like an “inner zone” or “biographical core.” What becomes important is not the protection of different layers of an already-constituted self but rather an individual’s ability to know the others to whom she presents herself—and even, in some case, to be able to choose these others. For example, if I take a photo of you in a public place and publish it in a magazine I have dramatically changed the nature of the others to whom you were presenting yourself—the “audience” shifts from the other people sharing this public space to the other people reading the magazine. This shift, I want to argue, undermines one’s capacity for self-presentation and therefore raises at least a prima facie privacy claim—even though the photo was taken in “public” and even though it reveals nothing embarrassing or sensitive (I have written elsewhere about the Aubry case, which has these facts).

There is, of course, much more to say and this is what my current work is focusing on. My point in these two blog posts has been to try to show that the first generation of philosophers of technology raise an intriguing challenge to legal theorists regarding the need to examine the view of the self that we adopt in thinking about technological questions. I think that privacy law and theory would do well to rise to the challenge.

4 Comments:

Anonymous Ralf Bendrath said...

This concept of the "biographical core of personal information" is really interesting, as it sounds a lot like what the German Constitutional Court has developed as "the core area of the conduct of personal life" (not sure of the exact translation, German original: "Kernbereich privater Lebensgestaltung").

Based on this and translating it into the technology-mediated world of today, the court last year developed the "basic right to the confidentiality and integrity of information-technological systems", which basically means that law enforcement agencies are not allowed to hack into your computer or search your hard drive (with some exceptions and details, of course). I've blogged about this when the ruling was published last year. Would be interested in your comments on this.

Full disclosure: IANAL.

2/28/2009 6:01 PM  
Blogger Lisa Austin said...

Ralf, thanks for your comment and the link to your blog. I think that if something like a "biographical core" is used to provide legal protection where there wasn't any before, then this is a good thing. However, I do not think that this can produce a sophisticated privacy jurisprudence. I worry about some trends in Canada. For example, there was a case (see: http://decisions.fct-cf.gc.ca/en/2005/2005fc1601/2005fc1601.html) a few years ago in Canada that dealt with the question of an employer requiring employees to use a voiceprint to access the computer system. While the case dealt with a statute and not the constitution, the court nonetheless cited the SCC jurisprudence on privacy, including the idea of biographical core. The court held that on this model, one's voiceprint was not very revealing and, in fact, was something that employees exposed to others everyday. What the court could not understand, on this framework, was that the issue of biometrics is not so much one of identity but identification. We need a legal test that is robust enough to deal with identifiers and their myriad uses and misuses -- but asking whether they reveal core aspects of the self misses the point. (The case had much else that was interesting and important, but I can't outline it here.)

3/03/2009 9:03 AM  
Blogger Patrick S. O'Donnell said...

Lisa,

Perhaps you've already given some thought to this, but I would think the growing literature on a "narrative sense of self" would be of some help in developing the idea a capacity for self-presentation. Here I'm thinking not only of Jerome Bruner's well-known Making Stories: Law, Literature, Life (2002; especially ch. 3, 'The Narrative Creation of Self:' 63-87) but also some papers by the philosopher Peter Goldie, who has a nice introduction to the subject in his short book, On Personality (2004; see ch. 5, 'Personality, Narrative and Living a Life:' 104-128, as well as a number of articles dealing with a narrative sense of self, in particular with regard to the emotions: see http://www.socialsciences.manchester.ac.uk/disciplines/philosophy/about/staff/goldie/), and two recent books from Daniel D. Hutto: Folk Psychological Narratives: The Sociocultural Basis of Understanding Reasons (2008; favorably reviewed in a recent issue of the TLS) and the edited volume, Narrative and Understanding Persons (2007). In addition, but perhaps more indirectly relevant to your enterprise, J. David Velleman has a book and several papers that touch upon these issues as well (see http://homepages.nyu.edu/~dv26/).

These works could help provide support from recent work in the philosophy of mind on the narrative sense of self so as to help make clear any philosophical (and in some measure, psychological) assumptions and premises likely central to any plausible or persuasive notion of "self presentation."

3/03/2009 5:58 PM  
Blogger Lisa Austin said...

Thanks Patrick. I have been finding Velleman's work very helpful and look forward to looking up some of these other references.

3/03/2009 7:28 PM  

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