I’ve been sitting here for a while trying to come up with how to eloquently put this in English and I cannot. Maybe English lacks the appropriate terminology to express the difference between privacy and publicity within the expanded scope of current technology. It’s my only language, and I like to think I’m pretty good at it, but I’m absolutely stumped as to how you’d exactly word exactly what you’re not understanding.
I feel like it’s a case of the language we speak shaping our interpretation of what is just, and doing so in such a way that it’s hard to even explain what we’re now missing.
The problem, in so many words, is that these days the act of being in public is public. That’s a weird sentence to write, and I’m not sure how else to put it.
Previously, the memory of any public act was restricted to those who were there to observe it at the time. Any acts in public were by themselves public. Acts in private were private. There was a third quasi-state: anonymous isn’t the right word, because you were always identifiable, but by happenstance you just weren’t. You were in public, but not publicised. Recognisable, but not recognised. Observable, but not observed. By definition though you were always in public, never in private.
Modern technology has somewhat erased the third state by slowly but surely eroding the cases in which you are not observed, tracked, recorded, or identified, by some technology or another. It’s made public very public, if you excuse the unavoidable pleonasm.
There’s no good word for the third state, that I can think of, and it makes me sad.
When you are in a physical space, you can look around you and somewhat reliably observe who can see you, hear you, and observe your actions. You've always then had the choice to base your actions and your speech on who will observe them, with the further knowledge that they might go on to share this with others.
The difference isn't that what you do now can be shared. It's the ease of sharing and the fidelity with which it can be shared.
I mostly agree, but there's part that you're missing. Ease is a critical issue, but the capacity to record was substantially different back then too, and thus the validity of what was being shared. There's a big difference in someone claiming you said something vs someone having a recording of it. 20 years ago everyone wasn't walking around with a camera and microphone in their pocket. It is not only the ease in sharing and identifying, but even the base capacity to perform the action in the first place. If you were being recorded on video in the past, you'd likely notice the bulky camcorder mounted on some guy's shoulder. (not even mentioning that resolution was very different and depth of field is not a negligible).
20 years ago you did not have a reasonable expectation to be recorded in the public physical space. This is contingent upon the probability of someone being able to perform an action, and even more so without you being aware of said action being performed. That wasn't that long ago...
That's what I was getting at with the fidelity attribute.
Before you could observe an event and remember it (poorly) and share it (slowly) but technology, for better or worse, has greatly increased the possible fidelity of that memory, which can now shared endlessly without losing quality.
Agreed. I also get flummoxed whenever I try to talk about this stuff.
Further, I've only recently appreciated that our modern folk understanding of right to privacy has eclipsed its twin, the right to personal autonomy.
The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society". ...
They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is".
Brandeis & Warren were motivated by the evils of "yellow journalism", the social media of its day.
"The U.S Constitution safeguards the rights of Americans to privacy and personal autonomy. Although the Constitution does not explicitly provide for such rights, the U.S. Supreme Court has interpreted the Constitution protect these rights, specifically in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment."
I love the EU's notion of consent wrt privacy (h/t @sschueller). Will definitely learn more about their system. My hunch is consent is akin to respecting another's autonomy.
Correct me if I'm wrong, but aren't the EU laws contingent upon legality?
Article 8.2
> Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned __or some other legitimate basis laid down by law.__ Everyone has the right of access
to data which has been collected concerning him or her, and the right to have it rectified.
I mean we can take this in good faith, but at the same time Article 20 says everyone is equal in the law but there are several royal families and constitutions that make said families above the law. I love the idea in principle (and far better than nothing) but I personally am not fully trusting. It is, after all, our duties as citizens within a democratic nation(s) to challenge the authority and laws, to keep them in check.
Sorry, for EU & privacy, I've only read up on GDPR, briefly. Back when I was trying to wrap my head around USA privacy stuff, I'm embarrassed I didn't have the gumption to compare and contrast with other systems.
> our duties as citizens within a democratic nation(s) to challenge the authority and laws, to keep them in check.
Preach!
--
My notions about "trust", which confuses me endlessly, evolved while I was working on election integrity (voter privacy) and patient medical records. (Separate efforts.)
"Trust" in government is something like a qwan. Whenever I try to talk about trust, I usually end up contradicting myself.
I once heard the US Constitution was created in an orgy of mistrust.
We're familiar with checks & balances, which is fundamental and necessary and good. But we also need the mutual mistrust of all the belligerents, at every level, all the time.
I was a poll worker for a while. We'd tabulate and post our precinct's results the moment the polls closed.
For observers, that public posting was not a proof of truth, that these are the numbers. Rather, it was an attestation by the participating representatives of the major political parties that we all agreed to abide by the posted results.
As you can imagine, most of the time it's just a semantic difference. But it is a difference in perspective. And becomes far more than semantic once the margin of error becomes relevant (challenged ballots, provisionals, verifying the voter rolls, etc, etc).
And that's kind of where I am now wrt "trust". Applied to government, any given org, or my neighbors.
Secondly, my personal operating definition of trust has changed from "confidence" to "matches my expectations (predictions)".
I have almost zero confidence that my government, or any other person or org, will "do the right thing", whatever that might be.
Now I try to predict outcomes, based on past behavior and my folk understanding of the human condition, plus intuition, mixed with cynicism.
I can even "trust" liars, and terrible drivers, and walking my dog off-leash, and otherwise merely flawed entities, if I can predict their actions and the outcomes. (Cite "Everybody Lies" by Seth Stephens-Davidowitz.)
And if I want to change outcomes, to increase my "confidence" in a system, I have to participate, to maybe change the trajectory a few arc-seconds. Ideally, by focusing on durable structural and process reforms. Instead of demanding specific outcomes, which are easy to accommodate and are unlikely to change future outcomes.
Okay. Thanks for your reply and nudge and reading this far. I can't yet answer your question. And I felt compelled to (over) share my notions of trust, based on my past failures and shortcomings as an activist.
The distinction makes sense, but of course the counter-argument would be: what prevented someone, using earlier forms of technology, from documenting your presence at that public place and then publishing it ... say in written or illustrated form? We had newspapers, illustrators, journalists and printers well before photography, microphones and the Internet. Even if we remove those media, what is to prevent someone from communicating their observations verbally and having news of your presence spread by word of mouth? A conversation between two people at a coffee shop could be transcribed by pen & paper by an eaves dropper at an adjacent table. The wait staff or owner could report your presence to whomever they choose, including the media.
I'm a very private person and welcome more privacy protection, but I've always been swayed logically by the "no expectation of privacy in public" argument. As long as people can see you with your own two eyes and hear you with their own two ears, it seems to me like the existence of recorded media and more efficient distribution channels is moot.
What prevented documenting and publishing public acts in the past?
Merely an infeasibility to scale that with economically and socially reasonable levels of effort - actually an impossibility. The law and culture have not changed fast enough to keep up with obvious conclusions that result from the fast pace of technological change. There is a quantitative but not qualitative difference, but that's still an important difference!
For example, imagine that in the 70s, you might have had police officers with radios sitting on the shoulders of roads around a city, watching for a license plate and vehicle description to catch a suspect. That was reasonable, courts reasonably ruled that license plates were public information, that's the whole point of vehicle registration. But it would cost a pile of money to have professional humans use their eyes and brains for every hour you wanted to surveil those roads. It would have been impossible for humans to manually hand-write every plate and vehicle at rush hour, and if they could, it would be impossible for clerks to cross-reference traffic logs and store them in file cabinets, and if they could, it would be impossible to analyze the exploding warehouse of records to find anything of interest. And even if you could, the many humans in that chain would ask questions; you'd employ a tenth of the town to surveil their neighbors. But now, for less than it costs to have a single manned police cruiser on the road for a month, you can have 24/7/365 license plate monitoring on every road in and out of and through a city, logging events to a database that can analyze and query the computationally insignificant few hundred thousand results effortlessly. And that doesn't even get into the novel, unexpected, deanonymizing things you can do once you have reams of data!
A cop watching license plates was implicitly limited due to the cost of employing a human, that human's inability to be two places at once, that human's limited attention span, sensory capacity, and data recording abilities. It doesn't mean that removing those limitations and doing the same thing everywhere and all the time with omnipresent, omniscient, effortless nanobot surveillance is reasonable!
I think you're getting to the critical points here:
- manually, non-recorded, surveillance was difficult as it required a lot of man power. It also was contingent upon the trustworthiness of the source!
- Recorded surveillance was expensive and bulky, making it unlikely in the first place.
- Storage of data, both physical and digital (film or tape), was expensive, bulky, and difficult to search.
Now all that has changed, and in extreme ways. It is now very feasible and cheap to put up a camera to record 24/7, store that data for lengthy periods of time, and automatically search that data for cheap and in a reasonable amount of time as well. Acting like the 70's (or even 2000's) and 2020's are the same in expectations of surveillance is ludicrous at best.
The challenge you have is not language related, but rather logic related. The issue our Swiss friend raises is valid, no matter the language.
Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?
For example, when you are at a restaurant with friends, is there not an expectation of privacy within the context of your conversation with someone? Any reasonable person will have an expectation of privacy that will generally be limited to all those people around your table and with whom you will be making eye contact, as long as you are speaking at a tone that is reasonable for that context. No? Is the speaker going to be speaking so that everyone in the restaurant can understand their speech? No? So it’s not public then, right? Ignoring incidental overhearing, of course.
Inversely, if we consider what the American system clearly considers private, the home and, by extension, the car; if you have ever heard a conversation through thin walls between apartments or maybe a phone conversation on car speaker blasted speakerphone, is that private then? … are Phone conversations then also not private since in most cases the caller will not likely be aware that their direct conversation partner is blasting their conversation to the parking lot on the car’s speaker phone?
These scenarios, among others, beckon a requirement to make privacy expectations approaching unachievable. Is that reasonable? No, of course not.
And that’s before we explore things like focused beam microphones that make all conversations within any line of sight or even just things you whisper into someone’s ear not radically private based on the current American nonsensical definition reasonable and privacy.
The problem in America is not the speech part, but rather that the logic and reason itself has been inverted and perverted by sophists and abusive manipulators over the decades, which have turned everything upside down, including the definitions of “reasonable”, “public”, and “private”, i.e., the core logic of the matter.
None of the founders of America and the writers of the Constitution would recognize any of these current assumptions built into definitive and even the words they wrote, let alone all the illogical and lazy cruft that has been added after the twelfth amendment. They would think we’ve gone insane, because were have our, more accurately, sophist psychological manipulators and abusers have driven us so insane that we engage in the horrid abominations and abuses that are normalized all around us today. It has long been an ever worsening entropy problem.
To provide some clarity on my own position, I understand and echo your desire to have a society in which our quiet moments are not intruded upon. I am not arguing that the expectation that you not be monitored is unreasonable. What I am saying is that these feelings do not line up in a tidy way with the words “private” and “public”.
In all versions of modern English that I’m aware of, “public” is an antonym of “private”. In all conversations around this topic, they are often treated as though they are not. There’s an intuition gap that you rely on your conversational partner to cross. What you do is say “I have a right to privacy, and by privacy I do not mean literally private, I mean incidentally non-public, due to circumstance”, only not in so many words. It’s the way I talk about it as well, because there’s no well understood and unambiguous way to describe what I just called “incidentally non-public”.
Assuming, of course, that you accept that public and private are antonyms, you can demonstrate this intuition gap by instead of talking about public and private, using another pair of antonyms and talking about up and down, and instead ask the question: Does everyone have the right to be up while down?
That’s obviously a terrible and nonsensical question, but I feel it is exactly what some people read when they encounter someone’s desire for privacy in public. How can you be private in public? How can you be up while down?
This isn’t sophistry or maliciousness: it’s a real way that real people interpret the conversation. Failure to recognise the intuition gap is what leads to a failure to understand the other person you’re talking to.
If you're getting into the definition of public vs private you also need to consider what constitutes a reasonable expectation. Not just from our current reference frame of everyone having phones and every business having cameras, but from a few decades ago as well as a century, or more, ago. What may constitute a reasonable expectation today may be extremely divorced from that of when the laws were written. I love the nuance you are getting into, but I do think it needs to be taken at least one step further for a good conversation to take place. People are working with different assumptions and not communicating these well and results in very different versions of reasonable expectation. 50 years ago, even 20, it was pretty reasonable to assume that you could not, let along would not, be recorded unless you were involved in a large public demonstration. I think if we're getting down to public vs private that we should also consider this aspect. And I think we should recognize the difference between a private activity within a public space from a public activity within a public space. The ecosystem has changed and with it we must be a bit more nuanced.
The definition is at its root: “private” is by nature privative: it is essentially defined by what isn’t. If privacy includes “not being observed”, “not being recorded” and “not being overheard” it is hard to have a conversation around asserting the right to privacy, when some of those rights are violated indeliberately and necessarily by virtue of you just being in view or earshot of another person.
The thing you touch on at the end—not quite privity, not quite secrecy, not quite privacy—is the thing I wish I had a word for.
It’s exactly this ur-privacy, though, that people find missing in their lives and are trying to express a well understood, if cloudy, desire for. It’s also something that I tend to agree with the various European governments on, despite my annoyance at the “I know it when I see it” nature of the thing.
I think this is because it is more nuanced that you, or most people, are giving credit to. Privacy is not a binary option of private vs public but rather a continuum. This is where "reasonable expectation" falls and tries to create a division, a third option. But I think we need more since the environment has changed. As an example, if in a public place you pull yourself and your friend to a dark corner that's obscured you have increased your expectation of privacy. Because you're literally "hiding." The extreme of this might be a public bathroom where you definitely do have a legal expectation of privacy despite being a public place.
So the problem here is that we're trying to make clear cut discriminators when the world has gotten a lot messier. Unfortunately legal systems require discretization, because it is easier to legislate clear boundaries (laws are piecewise functions -- if-then-else). But the world is messy and it needs to be recognized that those discrete boundaries are fuzzy too (i.e. they are guides, not hard fixed and objective boundaries). Probably also coupled with human propensity to discretize continuous variables due to the compression effects. This really is why we have many "know it when I see it" definitions rather than hard rules and you may notice that as complexity is increasing (making this more common) and so is the disagreement with said loose definitions. Then we have a core problem of communication breaking down because everyone is working off a different set of assumptions, assuming everyone else has the same assumptions, and unwilling to accept other bases because our assumptions are objectively generated ;)
>Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?
No, they don't, because that would not be a reasonable expectation.
>The problem in America is not the speech part, but rather that the logic and reason itself has been inverted and perverted by sophists and abusive manipulators over the decades, which have turned everything upside down, including the definitions of “reasonable”, “public”, and “private”, i.e., the core logic of the matter. . . None of the founders of America and the writers of the Constitution would recognize any of these current assumptions built into definitive and even the words they wrote
I'm pretty sure the founders of The United States and the writers of the Constitution would understand that speaking at a restaurant (in their day, more likely in a public house) with friends is public.
Ben Franklin was a newspaper-man. You think he didn't deal with things overheard and published? These people were revolutionaries - successful revolutionaries generally know that their acts can be witnessed if not done in private spaces.
>let alone all the illogical and lazy cruft that has been added after the twelfth amendment
Weird cut-off, friend. To me, some of the illogical and lazy cruft was added prior to that in order to justify owning other people.
>> Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?
> No, they don't, because that would not be a reasonable expectation.
If you asked someone before 2000, do you think their answer would be different?
Would setting/context change that? i.e. a person talking to their friend on the street vs giving a speech at a protest/demonstration?
I think before you call reference to Ben Franklin, you have to also consider the differences in settings between today and then. A lot has changed and the discourse around the subject is not properly taking this into account, and often not even acknowledging the existence of change in the first place. "Reasonable expectation" is deeply contingent upon the availability, accessibility, and utility. This cannot be an ignored part of the conversation.
>If you asked someone before 2000, do you think their answer would be different
No, I don't. I do not think reasonable people ever had an expectation of privacy while in public, especially when they are interacting with other people/strangers.
>Would setting/context change that? i.e. a person talking to their friend on the street vs giving a speech at a protest/demonstration?
Setting and context could change the expectation of privacy, sure - if you're in a private place, it's different from being in public.
>I think before you call reference to Ben Franklin, you have to also consider the differences in settings between today and then. A lot has changed and the discourse around the subject is not properly taking this into account, and often not even acknowledging the existence of change in the first place.
Are you saying people have more of an expectation of privacy now? I thought your whole argument went the other way.
> No, I don't. I do not think reasonable people ever had an expectation of privacy while in public, especially when they are interacting with other people/strangers.
Yeah, I don't buy that. Let me be quite specific: do you think someone would answer the following question differently "what is the likelihood that you will be on camera if you walk to the library and back?" I absolutely guarantee the numbers will change and approach 0 pretty rapidly. This is not just a psychological question (which does matter too btw) but a technological one. Clearly Ben Franklin would have answered that he would not expect such a thing despite being a person of high fame in his time.
> Setting and context could change the expectation of privacy, sure - if you're in a private place, it's different from being in public.
Except that this isn't a binary option. A public bathroom is a public space yet I think most people would be hard pressed to argue that you do not have a reasonable expectation of privacy there, especially in a stall. In fact, this is even legally codified. There's a spectrum of private-public and it is not clean cut. What I've suggested above is that there are variables you aren't considering. A person's model on the expectation of privacy is dependent not just on their condition of public/private property, but also on their expectation of people having recording devices, the expectation of that use, the expectation of ability to notice them, as well as other more refined setting attributes like doors, locks, and other such things. It is far more nuanced than "inside vs outside." As another clear example, I have a higher expectation of privacy being in the middle of a national forest than if I lived in a apartment on the first floor in a big city. Obviously there are more conditions and we can't have a reasonable conversation without recognizing this.
> Are you saying people have more of an expectation of privacy now?
Obviously not. Reread. "availability, accessibility, and utility" is referring to recording devices and the ability to search through them. Additionally, your analogy doesn't even make sense since a lot of investigative journalism does "spy" on people in private settings (e.g. source information from a dissenting party about a conversation that happened in a private room on private property). Again, way more nuanced than you are giving credit for.
>Yeah, I don't buy that. Let me be quite specific: do you think someone would answer the following question differently "what is the likelihood that you will be on camera if you walk to the library and back?"
They'd probably answer that differently, same as if you asked them about someone filming them on their cell phone or any other technological change. That doesn't have much to do with your earlier question, though.
> There's a spectrum of private-public and it is not clean cut.
Sure, there is a spectrum, based on community norms. There is a degree of privacy you expect in a bathroom, and it is greater than the degree you expect at your table in a restaurant. I wouldn't describe being in a bathroom as being 'in public' though.
>Obviously not. Reread.
I think you should read the last paragraph you wrote on the comment I replied to. It was completely unclear. You were replying to a statement that even in Ben Franklin's time there was no expectation of privacy in public. You did not refute this, essentially saying 'times have changed, you're not considering how things have changed.' Logically, that means that there is now an expectation of privacy in public.
> That doesn't have much to do with your earlier question, though.
It has everything to do with the question. Being recorded is a different level of privacy invasion than being seen.
> I wouldn't describe being in a bathroom as being 'in public' though.
And thus why you can't assert that your definition is absolute. If people are disagreeing and you admit community norms differ, then you can't have an objective reference and that's my main point.
>Being recorded is a different level of privacy invasion than being seen.
Why do you think I used the newspaper-man example? Being recorded in text has happened for a long time.
>you can't assert that your definition is absolute. If people are disagreeing and you admit community norms differ, then you can't have an objective reference and that's my main point.
I never asserted that my definition was absolute. I applied the spectrum to your examples. A 'reasonable person' standard is not an arbitrary bright-line rule, it's representative of the community and what their idea of a reasonably prudent person's expectations and behavior are.
> Why do you think I used the newspaper-man example?
And a voice recording is even more reliable and convincing but hasn't existed for "a long time." A camera is even more so. Today's state is not equivalent to a written record. Basically take your newspaper-man, make them better, and make a lot more of them. Your argument is failing to convince me not because I haven't understood your argument, it is failing because the assumptions being made are shaky. I will not buy a claim that anyone honestly believes that a random person telling their friend about something they overheard is equivalent to that same person showing their friend an audio recording or a video.
This is what I have been consistently claiming and saying is a critical aspect where you keep just saying that people have memories. These are not the same, and it is not remotely reasonable to say that they are the same. And if this were all that mattered, then you'd have a reasonable expectation of privacy were you to walk around a non-metropolitan city late at night while everyone else sleeps, simply due to you having a reasonable expectation of everyone being asleep. If you want to be convincing, dig into the complexity and connections that are related to your argument. Think about the factors that interplay and through what mechanisms. Specifically look at how these variables changed over time (taking into account prevalence and utility). Honestly, I don't think you can do this without coming to a very different conclusion. You're lacking sufficient complexity to account for the relevant data. It is fine to start simple, but you gotta add complexity to make strong conclusions. Ignoring the difference between cameras and newspapers isn't helping.
> And that’s before we explore things like focused beam microphones
Let's drop that. Instead, let's remember that 20 years ago there was not an expectation that someone would be carrying a microphone and camera on them. It was also less likely that one could do so without you noticing. Not to mention the quality of those devices was exceptionally lower, making identification harder and requiring you to be in much closer proximity. Take that back just another decade and a camera needed to sit on your shoulder, making you easily identifiable.
A problem with a lot of these conversations is that they're using modern technologies and notions in reference to laws that were written well before these things. There is a big difference between a very small number of easily identifiable people who require large resources to record the public, doing so in low resolution, and the modern notion of trivially doing so, and in high definition. Not to mention the ease/cost of storage, ability to search, and share that we have today. The Overton Window has shifted so much that we're completely forgetting the landscape differences.
Please read at least the 13th amendment before using the 12th as a cutoff! It's hard to believe you know what any of the amendments say if you're claiming those after the 12th are illogical.
I feel like it’s a case of the language we speak shaping our interpretation of what is just, and doing so in such a way that it’s hard to even explain what we’re now missing.
The problem, in so many words, is that these days the act of being in public is public. That’s a weird sentence to write, and I’m not sure how else to put it.
Previously, the memory of any public act was restricted to those who were there to observe it at the time. Any acts in public were by themselves public. Acts in private were private. There was a third quasi-state: anonymous isn’t the right word, because you were always identifiable, but by happenstance you just weren’t. You were in public, but not publicised. Recognisable, but not recognised. Observable, but not observed. By definition though you were always in public, never in private.
Modern technology has somewhat erased the third state by slowly but surely eroding the cases in which you are not observed, tracked, recorded, or identified, by some technology or another. It’s made public very public, if you excuse the unavoidable pleonasm.
There’s no good word for the third state, that I can think of, and it makes me sad.