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The Obliteration of Privacy

It’s remarkable how little outrage Edward Snowden’s NSA revelations have provoked in the American public. One often heard response is something like, “Well, I don’t have anything to hide, so I don’t care if the government is listening to what I say. And if they catch some terrorists, so much the better.”

This kind of response is fallacious in so many ways that it doesn’t even merit a rebuttal. Suffice it to say that the Constitutional protections against government intrusion into our lives are not there to secure one’s right to articulate uncontroversial, conventional viewpoints – which by their nature don’t need legal protection because those viewpoints are unobjectionable from any perspective.

More interesting is the notion that if someone has nothing to hide, then it’s OK for the government to snoop. It’s an interesting notion because the underlying assumption is that only those with something to hide have anything like “privacy” in the first place – and it’s OK to violate the privacy of a sneak because if you have something to hide, you’re guilty of something, and justice demands that the guilty be exposed and punished. In other words, the assumption is that privacy implies secrecy and secrecy implies guilt. So to the extent that privacy exists at all, it’s not legitimate. When the government engages in indiscriminate spying without individualized suspicion, the privacy of its citizens is not so much violated as it is obliterated altogether, rendered illegitimate. While the NSA cannot be said to have achieved today the goal of eradicating personal privacy worldwide (as Glenn Greenwald claims), the sheer pervasiveness, scope and sophistication of the surveillance activities that have already been made public suggest that this is indeed its aspiration.

The interpretation of privacy as secrecy is almost as old as the idea of personal privacy itself – which is not particularly old. In fact, the idea of personal privacy seems to have come into Western culture as a by-product of philosophical skepticism, which is to say, roughly since Descartes invented the “method” of skeptical doubt as a way of proving the existence of the human self. Very generally, the method (as applied to persons rather than things) can be described as follows: I can know that another person is feeling pain (is happy, sad, angry, jealous, and ultimately, sentient – i.e., like me) only from his behavior, what I see and hear and taste and feel by means of my five senses. But my senses can deceive me; furthermore, the other person may be feigning pain for example; therefore, I cannot really know if he’s in pain, from which it follows, I can never know with certainty. Only he really knows with certainty what he feels (or thinks). Sensations (like thoughts) are private.

This logic leads to an intellectualization of personal relationships – to know the other is to know what the other knows, i.e., to know his secrets. And, unless he confesses (and a confession can always be a false confession, a performance in the presence of others), I cannot know his secrets with any confidence approaching certainty unless he inadvertently reveals them in a moment of candor. To achieve certainty, I must observe from a position that guarantees the other’s candor or genuineness of expression – by excluding the possibility that he might be “performing”. I must catch him unawares, and this implies that I must not be seen to be observing him, which means, I must myself be hidden, invisible, as for example the Jimmy Stewart character is hidden in Alfred Hitchcock’s Rear Window. This theme is played out sometimes obsessively in certain European (Kleist, Hoffmann) and American (Poe) Romantic literature during the 18th and 19th centuries.

In Michel Foucault’s Discipline and Punish, Jeremy Bentham’s design of the “panopticon“ prison is interpreted as a metaphor for the way in which political and police power functions in modern post-Enlightenment societies: Power is exercised via the mere physical capability of seeing (i.e., knowing) every movement of the imprisoned, and this capability depends on the all-seeing eye being itself invisible, such that the central observation post need not even be occupied by a human being. The architecture of the panopticon instills in prisoners’ consciousness the awareness that they could at any time be the object of observation. This constant awareness of the mere possibility of being watched replaces the threat of physical force as the primary means of disciplining a population. Their lack of privacy, which is architecturally secured as their inability to keep secrets, renders the prisoners docile.
Several centuries after Descartes published his Meditations on First Philosophy (1647), Ludwig Wittgenstein challenged the notion that personal privacy is a question of knowledge. In his Philosophical Investigations (1951), § 246, Wittgenstein remarks, a propos the skeptical claim, “Only I can know my pain”:

It cannot be said of me at all (except perhaps as a joke) that I know I am in pain. What is it supposed to mean – except perhaps that I am in pain? Other people cannot be said to learn of my sensations only from my behavior – for I cannot be said to learn of them. I have them.

When I express my own sensation of pain – whether by saying “I am in pain” or by groaning – I am not expressing my “knowledge” of my sensation, but rather expressing the sensation itself – my pain – and I am asking that my suffering be acknowledged by others or by some particular other. When the other responds to my “pain behavior”, for example by comforting me, perhaps with words like “I know you’re in pain”, he is not so much reporting his knowledge of my (private) sensation as he is expressing sympathy, acknowledging that it is me who is in pain; and in acknowledging my pain, he affirms that our relationship is such that it is important to us both that my suffering be acknowledged.

This example suggests, as Stanley Cavell puts it in “Knowing and Acknowledging”, that “our concept of my knowledge of another is bound up with the concept of my freedom, an independence from the other, from all others – which I may or may not act upon …” When we conceive of privacy as a matter of acknowledgement, we preserve this idea of personal freedom – for instance, my freedom to elicit another’s compassion or not, and the other’s freedom to acknowledge my suffering or not – our freedom to establish and mold a relationship based on moral commitment. By contrast, when privacy is construed as a matter of certainty (for example, knowing someone’s secrets), the other is not acknowledged; he or she remains unexpressed, mute and for that reason, un-free.

So what happens when a society is so arranged that personal privacy is interpreted as secrecy – for instance, a society that tolerates universal, indiscriminate surveillance by the government on civilians? Earlier I remarked that such an arrangement doesn’t so much violate personal privacy as it renders the very idea of privacy illegitimate. In Foucault’s discussion of the panopticon, institutional power is effectively exercised by instilling in its subjects the continuing awareness that they could, anytime and anywhere, be under observation. Force ceases to be the primary weapon in the government’s institutional arsenal because it is no longer necessary. The threat of coercion is replaced, at least in the first instance, by the power of conformity, which is embodied in the idea of the norm, known in contemporary America as the “conventional wisdom”.

Ubiquitous and secret government surveillance enforces the disciplinary power of the conventional wisdom, because the mere awareness that one’s communications are being or could be monitored deters the subject from deviating from the norm. A recent survey conducted by PEN American Center and the FDR Group of 528 members revealed that a significant portion of professional authors in the United States have deliberately avoided discussing certain topics in email and telephone conversations since the Snowden leaks were made public. PEN says that this result substantiates the organization’s concern that “writers are not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result.” See http://www.pen.org/sites/default/files/Chilling%20Effects_PEN%20American.pdf.

To the extent that the NSA’s mass surveillance effectively produces self-censorship among citizens, government censorship becomes superfluous. The goal has been achieved; dissent or deviation from the norm is effectively muted, because (given the secrecy of the FISA courts) nobody knows exactly where the line is drawn, or if there is a line at all. By the same measure that original thought is discouraged, conformist expression is encouraged, and conformity only ever produces mediocrity. I assume that the politicians and bureaucrats who have transformed America into a surveillance state have not carefully thought through the long-term cost of stifling independent, creative thought and expression. But perhaps it’s less naïve to assume that those politicians and bureaucrats consider the cost to be well worth paying in order to secure the satisfaction of doing something simply because they have the technical capability of doing it. While the underlying purposes of NSA surveillance remain obscure, common sense tells us that controlling things – everything – seems to be a goal unto itself for certain personality types.

Nonetheless, the motivation is less important than the result. A government that views its citizens as actual or potential conspirators does not, cannot govern by means of the consent of those governed, because a population that cannot be trusted with privacy lacks the “maturity” to consent. It is a nation of irresponsible adolescents who cannot be allowed to lock their bedroom doors. But governance by consent of those governed is the basic assumption of a modern liberal democracy. Edward Snowden revealed that the social contract in the United States is broken, from which it follows that we no longer live in a liberal democracy.

When the government is found to have violated the social contract, there are two options available to responsible citizens: First, one may view the violation as a breach that can and should be cured, for example through the legislature or the court system. Consent is tested, but maintained. Second, one may view the violation as so pervasive and egregious as to constitute a wholesale repudiation of the contract altogether, in which case the only rational response is to withdraw one’s consent – for example, by refusing to recognize the state’s jurisdiction over oneself.

Many people have responded to the NSA revelations by impugning Edward Snowden’s decision to leave the United States, as if that decision somehow undermines his status as a messenger, thus mitigating the seriousness of what he disclosed. But if in fact the NSA’s indiscriminate surveillance of Americans amounts to a violation of the social contract, then it seems to me that both options mentioned above are legitimate responses, and by leaving the United States, Edward Snowden has chosen the second option. In his view, the government’s secret de-legitimization of personal privacy generally implies that the social contract has not merely been violated, it has been repudiated, and accordingly, he has withdrawn his consent by leaving the country. This is how I interpret Snowden’s recent statement, “If I defected at all, I defected from the government to the public.” One need not agree with that view to acknowledge that it represents a legitimate interpretation of the government’s aspiration to obliterate personal privacy from American life.

Carl E. Kandutsch owns and operates the Kandutsch Law Office in Plano, Texas, representing real estate and broadband service provider clients across the United States. For further details please see www.kandutsch.com or write to carl@kandutsch.com.

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Carl Kandutsch (ckandutsch@verizon.net) holds a Ph.D. in Comparative Literature from Yale University and currently owns and operates the Kandutsch Law Office (www.kandutsch.com) in Plano, Texas.

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