By Gordon Hull
Last time, I offered some thoughts on Woody Hartzog’s (and co-authors’) development of “obscurity” as a partial replacement for privacy. On Hartzog’s account, privacy is subject to a number of problems, not least of which is that we tend to think in terms of an unsustainable binary: things are either “private” or “public,” which means that any information you disclose even once is permanently out there. This doesn’t track how people live their lives: we share information all the time, for all kinds of reasons; however, we reasonably expect it to remain within certain social contexts, and we expect that it will take effort for someone to wrest it our of those contexts. The latter of these is more or less what “obscurity” indicates. There is a lot of information out there, but many of those who nominally have access to it don’t actually know enough to do anything with it. Hartzog analogizes the situation to talking in a restaurant. People at adjacent tables can likely hear the words you say, but they lack the context for them to be meaningful. In that sense, communication, even in public, often remains obscure. This is true both online and off; one of the reasons we need to worry about privacy now is that various technologies make it a lot easier to fill in that context, especially online. So we don’t become less or more private online, but we do become less obscure.
I concluded by promising a point about latent ambiguity in this context. Recall that in Lessig’s Code, he suggests that a number of important legal concepts – “privacy” and “fair use” – embed an ambiguity in their meaning. That is, we don’t know quite what they mean because the people who wrote them into law had never thought through situations analogous to a current one. For fair use in copyright, for example, it used to be difficult to stop people from making personal copies of works or to meter how many times they used them. So those uses became “fair” and defensible. If you were accused of violating copyright, you could offer fair use as a defense, and norms arose against pursuing those violations. Now that technological developments make it easy to stop copying and meter use, we have to confront the question of whether we want fair use for normative reasons, or if we simply had it because of those disappearing inefficiencies. Should fair use protect only use that is inefficient to meter? There is a clear analogy to obscurity: do we have obscurity because it was difficult to know enough metadata to figure out what the neighbors were gossiping about over the fence, or because we think it’s a bad idea to pry?
Privacy embeds a second latent ambiguity, one between normative values. As Lessig notes, when the framers drafted the Fourth Amendment’s protection against warrantless searches, their paradigm case of a search was British soldiers breaking down your door and ransacking your house. This search had two problems in that it was both highly disruptive and offensive to your personal dignity. All sorts of technological developments around surveillance make it possible to have searches that are not disruptive. So: was the problem with the animating Fourth Amendment example the disruption or the dignity? The concept itself is ambiguous in that the Framers didn’t have to resolve that question because the paradigm case they used didn’t require that sort of disentanglement.
When he develops the latent ambiguity argument, Lessig refers to Cass Sunstein’s “Incompletely Theorized Agreements,” which basically argues that sometimes people work together without having to specify first principles. Sunstein descriptively notes that “well-functioning legal systems often tend to adopt a special strategy for producing agreement amidst pluralism” (1735), which provides “an important source of social stability and an important way for diverse people to demonstrate mutual respect, in law especially but also in liberal democracy as a whole” (1736). For example:
“People may believe that it is important to protect endangered species, while having quite diverse theories of why this is so. Some may stress obligations to species or nature as such; others may point to the role of endangered species in producing ecological stability; still others may point to the possibility that obscure species will provide medicines for human beings. When (and if) people who agree on the same course of action are able to do so from different foundations, they need not choose among foundations. So too, people may favor a rule of strict liability for certain torts from diverse starting points, with some people rooting their judgments in economic efficiency, others in distributive goals, and still others in conceptions of basic rights. Similarly, people may invoke many different foundations for their belief that the law should protect labor unions against certain kinds of employer coercion. Some may emphasize the potentially democratic character of unions; others may think that unions are necessary for industrial peace; others may believe that unions protect basic rights” (1736).
He adds that “when closure cannot be based on relative abstractions, the legal system is often able to reach a degree of closure by focusing on relative particulars. Examples of this kind are exceptionally common” (ibid). Descriptively, incomplete theorization is necessary for the system to produce results.
Sunstein also makes a normative claim, which is that:
“It is customary to lament an outcome that has not been completely theorized, on the ground that any such outcome has been inadequately justified; but there are special advantages to incompletely theorized agreements in law (and elsewhere). Such agreements are especially well suited to the institutional limits of the judiciary, which is composed in significant part of multimember bodies, consisting in turn of highly diverse people who must render many decisions, live together, avoid error to the extent possible, and show each other mutual respect. The virtues of incompletely theorized agreements extend as well to social life, to workplace and familial life, and even to democratic politics” (1738)
In other words, it’s good to be able to get things done when you don’t agree on first principles. This is especially true in a pluralist society. To use an extreme example, fundamentalist Christians and deep ecologists might agree to support some sort of environmental protection measure. But their ability to do that together probably depends on their not trying to come to an agreement about first principles – because such an agreement won’t be forthcoming. Attempts at complete justification can stop things from happening.
It seems to me that privacy discussions suffer from an acute version of this problem. As Deirdre Mulligan, Colin Koopman and Nick Doty argue, privacy is more than incompletely theorized: it’s “essentially contested,” which means that the problem is not confusion or unclarity about what privacy means, it’s that there’s active disagreement on the point, both at the level of theory and application. They treat this is a qualified virtue, and advocate “embracing privacy as an essentially contested concept in order to shift the focus of research towards developing tools that facilitate our ability to work with privacy’s multi-faceted and open-textured meaning.” However, they caution that “such an approach is viable, however, only if contests over privacy can be seen as generative and productive, rather than as an excuse to dismiss privacy as a muddle or a myth, or even worse as an excuse to exert power” (3). After working through the literature on essentially contested concepts, they offer a detailed analytic for working through privacy problems, providing scaffolding to ensure that debates about privacy are in fact productive.
It seems to me that obscurity, as developed by Hartzog, can be read as attempting precisely this sort of work. Both agree that the effort to define privacy is a dead-end. Mulligan et al move toward a framework; Hartzog moves toward a concept that he takes to be more tractable – more particular in Sunstein’s phrasing – and then provides precisely a framework to see to it that debates around obscurity remain productive. These four factors are designed to make sure that debates around privacy are productive and generative of results, especially in particular cases. Hartzog’s four factors recall the four factors for fair use, which are basically there to assure a careful, case-by-case adjudication of alleged infringement, allowing judges to reach fair resolution without having to completely theorize fair use. This is not to say that such adjudication is easy! But it is to offer an approach that doesn’t require high-level justifications (it’s a separate question whether this is ultimately a good idea, and there’s a debate in the IP literature about whether fair use should be done this way. Similar debates could presumably be had in the context of obscurity).
There is now quantitative research to the effect that the concepts in data science (ex: privacy) are used divergently across different disciplines, with relatively little crossover between disciplinary groupings. This might or might not be part of what it means to say that privacy is essentially contested; it certainly functions in a similar way to generate barriers to protecting it. Obscurity seems to me to be one way of operationalizing a response to that problem. It attempts to provoke, for the sorts of reasons that Sunstein is talking about, a better debate than the one we’ve been having badly in the context of privacy. When concepts are essentially contested, in other words, we can move to a level of particularity on which there is at least some baseline (untheorized) agreement, and work from there. And if we care about the concept – whatever it means to us – that’s not such a bad idea.
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