Why Even Good Law-Abiding People Should Care About Privacy

Coffee Customers at Mardi Gras

Since my post on Homophobic Harassment and Surveillance, I’ve been ruminating some more on the issues of surveillance and privacy.  The conversation about the importance (or lack thereof) of privacy was renewed for a lot of folks last December. That was when the news came to light that the US Congress banded together symphonically to approve the National Defense Authorization Act (NDAA).  Although ostensibly about indefinite detention, the NDAA raised concerns about the increasing encroachment over the privacy rights of US citizens and the increase of pre-emptive and warrantless surveillance. In the public debate, there have been two distinct responses. Response 1 comes from the righteous civil righters (RCRs), which amounts to, “How dare they take away my privacy!” Response 2 came from morally upstanding citizens (MUCs): “Well, if you haven’t done anything wrong, you have nothing to worry about.”

Both of those responses seem a bit mysterious to me.  Why should we care about a “right to privacy?” After all, aren’t the MUC’s right?  If you don’t do anything wrong, there’s no reasons to worry about it. And yet…I think there is be more to it than that.  There are plenty of things we do that are legal or that happen to us…that are not things that we might want to share with everyone: having an abortion or gender re-assignment surgery; a teacher’s past life as a dancer in a stripclub; premarital affair with a TeaPartyer; a secret affinity for hot-dog eating contests when you’re the head of a major Weight Loss Organization; or used drugs recreationally during one’s more carefree days before ascending up the ladder to become the policy director at the World Health Organization (This is made-up. Promise).  These are things that aren’t necessarily to be ashamed of; there’s context, there’s moral complexity, there’s a story. But we all have sides of ourselves that we don’t care to explain to others for any number of reasons.  And as we know, when these stories come out, they cause embarrassment or shed a negative light on the person at the center of the story. In other words, when our secrets are broken by someone other than ourselves, there’s a good chance that those leaks will cast aspersions on our character, causing us to lose face, or to prevent us from moving on with our lives or toward our goals. That’s the point of leaking secrets, after all, isn’t it?

How many stories have we heard about teachers losing their jobs because they—umm—shared much more of their trip to New Orleans during Mardi Gras on Facebook than the School Superintendent thought was proper? Newly minted college-graduates not getting called back after an ace interview—because the employer discovered his credit scores were low (due to tragic circumstances rather than irresponsibility—which the employer never learned of)?

But this isn’t about wrongdoing. It’s about growing up, making (bad) judgments, moving on, and remaking yourself. That was part of the point of “going West”: you could shed your past, former associates, bad habits, bad decisions by moving on and starting over. These are some reasons that privacy is so important. But in a world where all of our movements are tracked, our ability to hold on to our humanity erodes to be replaced by fear and self-censorship.

Leaking secrets about an individual in private life is different from leaking secrets about wrongdoings that public institutions have been guilty of: like the case of the US wrongdoing as leaked by Pvt. Bradley Manning or Julian Assange or CIA agent John Kiriakou. Or most recently, by Spanish judge Balthazar Garzon, whose illustrious crime-fighting record was shut down by the Spanish Supreme Court. In all of these instances, the secrets that were leaked show the lack of accountability by the state or some of its officers.  Lone citizens aren’t held to that same standard. Public officers, once upon a time, were supposed to abide by a set of ethics and to have their actions be transparent while individuals could engage in all kinds of activities–respectable or not– in the privacy of their homes without being called out.  Instead, we’re at a place where the actions of individuals are supposed to be transparent while the dubious decisions and unethical acts of public officers—from the US military, to the POTUS, are systemically hidden from view.

After all, this is what it means to have a GPS tracking device in your car—and to make it illegal to remove it.  But POTUS can authorize the killing of a US citizen without being required to provide proof of cause, and he’s hailed as a hero.

While the US Constitution doesn’t have an explicit right to privacy, the Supreme Court has, in groundbreaking cases like Roe v. Wade, interpreted that right to exist through a “penumbra” of other rights as listed in Amendments 1, 4, 5, 9, and 14 (see section V). The Universal Declaration of Human Rights considers privacy a fundamental human right (see Article 12). It’s considered fundamental to human dignity. Why might that be?  In part, it might be because there’s a realm in which you should be able to conduct your life, as controversial as certain practices might be (like having pre-emptive mastectomies to avoid breast cancer) or as intimate as having sex with one’s lover–without having to fear someone else’s judgment AND without having to fear that surveillance will be used to punish you. Now, note here that I’m NOT talking about acts that are harmful or destructive: pedophilia, abuse, violence—these are all acts that harm others, often those who don’t have the defenses to remove themselves from harm. But these are acts are committed by relatively few compared to the enormous number of us who are being surveilled now.

We need to have a fundamental right to privacy because it enables us to make decisions in our lives that enable us to feel human rather than like automatons behaving the way others/states/institutions want us to behave. Being human consists fundamentally of making decisions within the constraints of the lives into which we are born (for example, I can’t become an Air Force pilot if I have bad eyesight). But those constraints shouldn’t be imposed and calculated and created by private insurance companies who decide whether to cover you based on the propensity of cancer or mental illness in your family, or private schools that demand a parent’s driver’s license information on a permission slip for her kid’s field trip (this is NOT made up. Promise), or FBI decisions to stalk you because you go to mosque for your religious reflection.

The ability to make love, medical decisions, lifestyle choices, or bad decisions, to take risks, to find spiritual solace—these are acts that firmly anchor our dignity, and that is why they deserve to be private decisions, free of surveillance.   Just because the MaMa Pajama or the PaPa don’t like it, don’t make it bad…