Volume 3, Issue 3
3rd Quarter, 2008


Concepts of Privacy in a Posthuman Age

Sebastian Sethe, Ph.D.

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Arguably, the privacy in some quarters has become very dispositional, a slightly tattered cloak to be shed at ones discretion in exchange for greater convenience. This notion certainly seems to underlie two of Terasem's projects: CyBeRev [1] and LifeNaut [2]. In both initiatives, people are asked to voluntarily share a great deal of very private information. These projects do not seem to go against the grain of the time: we are witnessing a development where many people – young people in particular, but also many of transhumanist persuasion – are very open about sharing personal information to a degree that would have been considered flagrantly exhibitionist in other times and cultures. This seems to go along with a development in society as a whole where we are prepared to accept a greater degree of technologically-enabled surveillance in exchange for security. In the UK, closed circuit television surveillance is said to be very popular with a security-conscious public.

But this power of surveillance is not necessarily as controlled as we envisaged. Consider Google Earth and Google Streetview [3] – Just by logging on to the internet, we can use unprecedented power of intelligence gathering technology. This would have been inconceivable until just recently, for technological, political, and social reasons. As always, technology can be used in many ways: we could try to use Google to spy on people, or we can use it to record for all the world to see that there is a genocide going on in Sudan.[4] Or another example: Whatever you think about illegal immigration, if society as a whole thinks its border should be physically secured, it cannot be a bad thing to involve concerned citizens in patrolling their border via webcam (not necessarily in physically enforcing border security which is quite another subject).

When we traditionally thought about Orwell's Big Brother [5] model, we assume an authoritarian figure using some kind of centralized surveillance device (maybe a super computer, much dreaded in a privacy context in days now gone by). "Big Brother" is not an ominous power but a popular TV show.
Instead of a singular lurking Big Brother, we have a more complex society of many eyeballs.

We could conceive of a (transbeman?) society where people use this power to actually scrutinize Big Brother as well as each other. This is the idea democratizing surveillance proposed e.g. by David Brin.[6] Thus, is the abolition of privacy the key to a truly integrated society?

Part 3: The Legal Dimension

At this point, let us turn from the social discussion to one about the law. And let us start very much with first principles. Jurisprudence involves a discussion between a position which focuses on the letter and one which looks at the spirit of the law (sometimes wrongly affiliated with conservative vs. liberal outlooks). When in Olmstead [7] the U.S. Supreme Court dealt with one of its first cases about technology and privacy, the learned Justices pointed out that wiretapping and wires were not mentioned anywhere in the Constitution. That is an example of a very literalistic approach. When technology is involved, a literal approach to legal interpretation inevitably becomes very techno-specific. Such an approach may encourage people to circumvent the letter of the law by employing or developing different technology which does the same thing. Or it can have the opposite effect and foreclose all avenues of innovation by outlawing an entire technology not just the one undesirable application.

A too literalistic approach to legislating for technology inevitably shifts emphasis away from the underlying motivation for the legislation.

The Olmstead Case also witnessed one of the most influential dissents in the Supreme Court history – by Justice Brandeis who thirty years prior co-authored a groundbreaking article on the right to privacy.[8] Brandeis identified this famous "right to be left alone". This is a nice illustration of a non-literal, quite expansive legal interpretation.

It took a while to take, but relying on such a 'right to be left alone' in Griswold [9] the Court introduced the concept of "zones of privacy" first in its 'Penumbra Theory'.

Even though the word privacy is not mentioned anywhere in the Constitution, different Constitutional provisions were found to protect privacy in different ways.

When combined with the liberty clause of the 14th Amendment, this leads to reasoning like the following: 'The Due Process Clause of the 14th Amendment, protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy'. That is the famous finding, of course, in Roe v. Wade. [10]

Ever since Roe v. Wade in the U.S.A., the legal issue of constitutional privacy has been inextricably tied with the issue of abortion. The two themes now appear politically inseparable. 'Belief' in constitutional privacy is on the verge of becoming shorthand for a position on abortion. As a legal scholar, I might have some qualms about how the Court 'discovered' privacy in the U.S. Constitution; yet as a bioethicist, I may be pleased that the Constitution seems to protect a woman's procreative liberty. Even if we are not quite sure how we got here, should we not welcome privacy as a useful constitutional hook to hang our humanitarian hats on?

Transhumanist legal scholars might be tempted to welcome such feel-good concepts as suitably flexible to accommodate future developments. However, we have already seen cases where such an expansive approach is not entirely benign: in the context of dignity.

Intuitively, the affirmation of dignity may strike many as a worthy goal – but the way the notion has been used is less than innocuous. The concept of dignity was employed to prohibit people from choosing the job that they want and – by proponents like Leon Kass [11] – the concept has even been used, in my view, to argue against the right to life itself. One of the most convincing alternative approaches to dignity in bioethics is represented by Beyleveld and Brownsword, [12] who (from a Gewirthian perspective that I don't share, but broadly agree with in the outcome) have identified that dignity can be operated either as a constraint in or as an empowerment. To me, rather than relying on Kass’ "Life Liberty and the Defense of Dignity" [13] this notion of dignity of empowerment lends meaning and effect to the often puzzling "pursuit of happiness". 

I would argue that we can apply the same perspective to privacy.

 

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Footnotes

5. George Orwell; Nineteen Eighty-Four; Secker & Warburg (1949)

6. David Brin; The Transparent Society; Perseus (1999)

7. Olmstead v. United States, 277 U.S. 438 (1928)

8. Louis Brandeis, Samuel Warren "The Right to Privacy" in: Harvard Law Review (1890) 4; pp193-220

9. Griswold v. Connecticut, 381 U.S. 479 (1965),

10. Roe v. Wade, 410 U.S. 113 (1973)

11. Leon R. Kass "Averting One's Eyes, or Facing the Music?: On Dignity in Death" in: The Hastings Center Studies, Vol. 2, No. 2, (1974), pp. 67-80

12. Deryck Beyleveld, Roger Brownsword; Human Dignity in Bioethics & Biolaw; Oxford University Press (2002)

13. Leon R. Kass; Life, Liberty and the Defense of Dignity; Encounter Books (2002)

 

 

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