Why privacy is not the antidote we need to intrusive digital surveillance

Traditionally, privacy has been considered the first line of defence against any form of surveillance experienced as intrusive. As enshrined in the Human Rights Act, General Data Protection Legislation, and a plethora of new bills across the U.S. among others, it plays a varied and active legal role in asserting moral limits to the collection of personal information. As a linguistic term, privacy is also one of the primary handles for organizations and activists seeking to defend democratic goods in a digital age.

Without undermining the valuable ongoing work that the category of privacy does, is now the moment to take stock of whether this line of defence has been successful, either legally or politically, in the face of the fundamental reorientation of societies around digital surveillance as an economy, politics, and a way of life?

Indicators point to yes.

One of the organisers of the Big Brother Awards – a satirical prize-giving ceremony held annually in Germany that highlights unethical surveillance practices – announced recently that when they started out in 2002 they never thought they would still be giving awards twenty years later, as the problem they were highlighting would have been solved. Yet precisely the opposite happened. If we consider this period statistically, the amount of personal information that is produced, collected and stored has increased exponentially, with estimates that a single internet user now produces around 150,000 MB of data every day. Moreover, the development of new biometric technologies such as facial recognition software, now allow for the linkage of datasets across multiple systems around single legal identities in real time, creating new possibilities for titrating access to cultural life that previously did not exist. In a recent example, the technology prevented lawyer Kelly Conlon from attending a Christmas show in New York with her daughter, as the firm she worked for was engaged in litigation with the venue.

If we look more closely at the contemporary phenomenon of privacy as both a conceptual and a legal category, cracks start to appear. A study of privacy advocacy groups across the world ascertained that although members of these organisations were passionate about privacy, few worked with a guiding definition of what privacy meant in practice. Indeed legal scholar Daniel Solove argues that privacy has no essential meaning at all. Moreover, the legal right to privacy across a number of jurisdictions is already on shaky ground. A recent constitutional ruling in India declared that Indians had no legal right to privacy that would necessitate any change to the compulsory biometric Aadhaar platform before being rolled out. Meanwhile here in the UK, citizens only acquired the legal right to privacy by proxy in 2000 through the implementation of the Human Rights Act, and it may disappear once more through the latter’s substitution with a Bill Of Rights (that makes no mention of privacy) if passed into law. As the production and processing of personal data looks set to only intensify, is it time to consider the problem afresh?

The historical roots of privacy offer a generative path forward. Nowadays, privacy is often represented in the anglophone world as something akin to a personal possession, like a wallet or a handbag. It is something we ‘have’, something which can be ‘invaded’ and must be ‘protected’. Yet in its eighteenth-century form privacy was an actual physical space, namely the private dwelling for which the right was asserted not to be subject to unauthorised searches or intrusions.

This spatial conception of privacy in fact already exists in relation to digital monitoring in the UK, albeit in a variegated and largely uncodified way. Consider for instance the prohibition on video cameras in film theatres, polling stations, or when accessing NHS services. In these settings, there is an implicit acknowledgment that there are social goods to be protected through forms of non-monitoring – whether intellectual property, the concept of a free vote, or the integrity of the human body. Instead of responding to intrusive forms of digital surveillance with a discourse of individual possession, is it time to frame it once again in relationship to space? A right to non-monitoring, for example, could be drawn up, codified, and signalled in any venue however large or small, using a standard set of symbols like the Highway Code.

The question driving the applied aspect of our research at King’s is – if privacy is not the antidote to intrusive digital surveillance – then what is?