“NSA Collecting Phone Records of Millions of Verizon Customers Daily.”
With this straightforward headline from June 5, 2013, the Guardian newspaper ignited a media firestorm that grew in intensity as the summer wore on. National and international conversations swirled around the ethics of government surveillance, and Edward Snowden became a household name.
Alongside the near daily headlines exposing the National Security Agency’s mass collection of Internet communications and personal data, a series of questions came into focus. Many of these questions centered on Snowden himself, who fled to Russia after leaking documents that had revealed the government’s activity. Was Snowden a traitor? A hero? Something in between?
Other questions, however, concentrated on the violations of privacy that the leaked documents revealed. If privacy is a right that comes with being a US citizen, in what cases can or should the government violate that right? Within the tumultuous news coverage, Joe Loewenstein, professor of English and director of the Interdisciplinary Project in the Humanities, saw a pertinent example of how work within the humanities confronts what’s vivid, and even dangerous, in modern life. “Everyone was running to cyber experts for commentary,” he said. “But the humanities owns privacy.”
Dean Schaal encouraged Loewenstein to bring the idea to the wider university community, and in October, the Interdisciplinary Project in the Humanities and Arts & Sciences co-hosted “Privacy and Surveillance: A Roundtable Discussion.” Loewenstein saw the discussion as an opportunity for scholars to present the idea of privacy as both multifaceted and malleable. As he stated ahead of the event, “I think it’s important that serious intellectual communities like ours should not treat a complex concept like privacy as simple or stable. We can’t assume that when I speak of privacy, what you hear is what I mean.”
Among the participants was Frank Lovett, associate professor of political science and director of legal studies. One of Lovett’s primary teaching areas is the history of political thought, and in his portion of the panel presentation, he reached back in time to provide context for beliefs about privacy that today may seem inarguable. In the age of Edward Snowden, privacy is widely considered an individual right. However, according to Lovett, this modern conception came about surprisingly recently. “A bunch of things had to coalesce in order for it to occur to anybody that there should be something called an individual right of privacy,” Lovett asserts. “And that particular constellation of things didn’t happen until the 19th century.”To trace the history of privacy, first one has to roughly define it – a surprisingly difficult task.
Alan Westin, a legal scholar whose 1967 book Privacy and Freedom helped bring about the field of privacy law, provided one commonly used definition: 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. Though useful in many circumstances, Lovett points out that this statement has a major shortcoming in discussing the history of privacy. In essence, Westin’s definition describes the right to privacy, rather than privacy itself. The statement assumes that privacy has value for the individuals, groups, or institutions in question. Yet this underlying belief in privacy’s worth has hardly remained constant across time.
As David Konig, professor of history and law, explains, in earlier eras privacy was seen as little more than a shield for sinful behavior. Early American colonists, especially Puritans, had “an obligation to snoop,” according to Konig. “What we now think of as privacy was for a very long time contradictory to social morals,” he says. Because public scrutiny helped to maintain moral and social norms, privacy was considered a danger rather than a benefit.
Lovett agrees that there are surprisingly few roots to our modern thinking about individual privacy. “In terms of thinking about it as an individual good,” he says, “I’d be pretty hard pressed to find any major thinkers before John Stuart Mill who stated in a positive, affirmative way the value of people being allowed to live the kind of lives they want, free from scrutiny.”Even going back to antiquity, beliefs about privacy bear little resemblance to how the topic is now viewed. For example, Aristotle’s vision of the contemplative life – a life of reflection, as opposed to one of public service – has been regarded as a predecessor to current thinking about private life. However, Lovett believes these ideas are not as connected as they may first appear. Consider the contemplative lives of monks in later periods. “A life in a monastery is not a private life,” says Lovett. “Every aspect of your daily routine is strictly scheduled and supervised.”
These examples do not mean that prior to the 19th century, privacy was viewed as being entirely without value. Rather than being of benefit to individuals, however, Lovett theorizes that privacy was first and foremost seen as benefitting societies. Across time and cultures, certain types of activities (copulation, defecation, and menstruation are a few obvious and persisting examples) are typically deemed indecent and hidden from public view. Lovett believes that “the cultural articulation of this demand might be aesthetic, hygienic, spiritual, or some combination of these, but regardless, the keeping of such things private was principally regarded as something important to the community and not to the individual in question.”
So how did we begin to recognize individual privacy as something of value? Why was the 19th century, rather than any number of earlier eras, the turning point in our thinking about privacy?
The answer, as indicated by the seminal 1890 article “The Right to Privacy,” is both cultural and technological. In this famous article from the Harvard Law Review, authors Samuel Warren and Louis Brandeis first proposed that “the right to be left alone” deserves legal protection. And as Konig explains, Warren and Brandeis’s opinions about privacy notoriously came about from a very specific, and indeed personal, set of circumstances.
The Role of the Penny Press
In the earlier part of the 1800s, innovations in printing technology led to the birth of the “penny press,” inexpensive newspapers that depended on wide circulation to make a profit. As newspapers battled one another for readership, gossip columns describing the intimate lives of the rich and famous became commonplace. Samuel Warren, one of the authors of “The Right to Privacy,” experienced this gossip mongering firsthand. Warren’s wife, Mabel Bayard, came from a family of some prominence in New England, and the press documented aspects of her family life that in earlier eras would never have been considered fit for print. Everything from Mabel’s body in her bridal gown to her grief over the deaths of her mother and sister found its way into the papers.
“If Brandeis and Warren used the word ‘privacy’ over and over, it was only slightly more often than their use of the word ‘gossip,’” Konig notes. As stated in “The Right to Privacy,” “Even gossip apparently harmless, when widely and persistently circulated, is potent for evil.” Interestingly, Warren and Brandeis described this violation of the private sphere as damaging for both the individual and for society at large. An individual with violated privacy is subject to “mental pain and distress far greater than could be inflicted by mere bodily injury,” according to the authors. Yet, in an argument that reads as strikingly modern in the days of social media and short-form news-aggregating websites, they also warned, “When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.”
The demand for gossip, coupled with technological advances in both printing and photography, met a third cultural force in this era – Victorian morals. As Konig explains, “the Victorian era was the era of hypocrisy.” Prim and proper behavior in public, and the expectation of this type of behavior, did not align with prurient behind-the-scenes lives of Victorians. In a landscape of negative judgment, the technological ability to view and record seemingly shameful behavior was coupled with an industry determined to publicize that behavior. Suddenly, as such violations of privacy became more widespread, its individual value came into sparkling view.
This crucial intersection of technology and culture provided something of a blueprint for later approaches to thinking about privacy. Since the 19th century, a rapidly increasing number of technologies designed to observe and document our movements, actions, and thoughts have made their way into countless businesses, homes, and pockets. The legality and ethicality of these observations continue to be debated – depending on who is doing the observing, and why – yet by 2014, the innate value of privacy appears to be above question.
Looking back at “Privacy and Surveillance: A Roundtable Discussion,” Joe Loewenstein reflects on his own reactions to the presentations and discussion. “Each of these scholars shed light on privacy as a complex and evolving concept,” he says. “It certainly changed the way I respond to newspaper headlines today.” As Lovett’s portion of the roundtable made clear, those shifts in perspective include a surprising historical lesson: even the basic assumption of privacy’s worth has not been stable across time, and it should not be taken for granted.
In addition to her editorial role, Claire Navarro produces the A&S podcast series Hold That Thought.