Privacy, Personhood and Identity in Surveillance Societies

The sociotechnical infrastructure that determines the way human activity is conducted largely functions within broader structures of surveillance capitalism and biopower. The former recognises the effective monetisation of data and information about people for (economic) activity. When probed, these inherent structures reveal an irreconcilability between modern surveillance states and fundamental human rights like privacy, autonomy and dignity. Central to the notion of pluralism, privacy becomes a pre-emptive force against the constant gaze. The concept of privacy can be located within the broader sociological and jurisprudential landscape by drawing out the connection it has with the modern liberal tradition of thought, and this yields insight into the threat existing infrastructures present to our understanding of privacy.

Privacy as a Fundamental Right

Privacy is a broad concept within philosophy and jurisprudence, often understood in conjunction with other concepts like self-creation, independence, autonomy, creativity, dignity, freedom of thought and reputation.[1] Initially interpreted to imply the right to be left alone, the concept of privacy expanded, and as a more sophisticated notion, evolved to imply limited access to the self. With solitude embedded in it, the idea of privacy granting an individual the right to limit the access to the self has the implied notion of agency and autonomy inbuilt into it. [2]

Initially interpreted to imply the right to be left alone, the concept of privacy expanded, and as a more sophisticated notion, evolved to imply limited access to the self.

Inbuilt in this understanding is the concept of secrecy, another aspect within the concept of privacy. Often functional as a way to restrain access to the self, this forms the basis for the right to information privacy, a widely relevant issue today. Information privacy or the right to personal information is a narrow subset within the right to privacy, but it reveals the significance of control and autonomy that individuals are expected to exercise over their information.[3]

Information privacy becomes particularly significant because of the crucial role data and digital information play in (economic) actions today. While there can be arguments made towards understanding data as a commodity that is exchanged for better services, or one serving as the hidden cost in transactions, it might be worthwhile to understand that both philosophically and jurisprudentially, devices containing our data have been recognised as an extension of the self. Philosophically, a popular thesis by Andy Clark and David Chalmers called the “extended mind” hypothesis, argued that external problems play a significant role in human cognitive functioning, and therefore, consciousness cannot be understood as being limited to the human brain. As such, technological devices like smartphones that aid human functioning in remarkable proportions can be understood as extended selves.[4] This line of argument finds resonance in one of the landmark cases in the United States Supreme Court. In Carpenter vs United States, the court ruled that the collection of location data from mobile phones would require a warrant, which has strengthened the case for digital privacy significantly.[5]

Image description: Small surveillance camera on wall. Still from art project titled "The neighbour before the house" by CAMP, Mumbai.

Privacy and Personhood

This normative understanding of privacy is deeply intertwined with the modern liberal conception of the individual. Privacy is thus understood in conjunction with personhood, as an element essential to secure the integrity of the personality. The private sphere is understood as a secure space for the expression of the infinite possibilities of the individual without any obligations of disclosure and/or accountability. It argues for state non-interference along with laws for the protection of the private sphere as such involvement might undermine one’s sense of identity.[6]

 A threat to the freedoms granted by a private sphere is evident in the sociotechnical structures supporting surveillance capitalism and biopolitical governance. People are reduced to binaries within a disciplinary matrix in addition to being permanently and irrevocably attached to identifiable personal information. Thus, seen through the digital, the unpredictability of the human vanishes. Individuals are censored to function within the norm, and the person is reduced to the subject, the body. The Unique Identification Authority of India’s Aadhaar is a pertinent instance of this.

Individuals are censored to function within the norm, and the person is reduced to the subject, the body.

In order to locate privacy within this debate of governance and data collection, it is of great import to focus on Justice Chandrachud’s historic dissent in the Aadhaar Verdict of the Supreme Court of India. He showed that identity is a plural concept and by making an identification document mandatory, the state was infringing on individuals’ right to choose to express themselves in the way they wish.[7]

Modern individualism thus proved to be the backdrop for the significance and relevance of the private sphere.[8] The Puttaswamy judgement of the Supreme Court of India yields remarkable perspective to the centrality of privacy in personhood, especially with respect to the question of sexual orientation. Even before section 377 was struck down in India, the verdict recognised that discrimination on the basis of sexual orientation was antithetical to individuals exercising their autonomy and detrimental to their sense of self (worth). [9]

While the right to privacy obviously has strong spatial dimensions in jurisprudence, it is worth acknowledging that crucially the right to privacy ensures that an individual’s daily life choices are autonomous and independent of another. The right concerns the ability to exercise a sense of self in both the public and private sphere without any restrictions or discrimination on participation. This is a significant development for it recognises that privacy is not just a negative liberty that protects the individual against the state but this interpretation is, in fact, a positive liberty that ensures that individuals have the space to reach their potential and aspirations.[10]

The right concerns the ability to exercise a sense of self in both the public and private sphere without any restrictions or discrimination on participation.

Locating Privacy in History

It is noteworthy that while privacy forms the very basis of fundamental human rights, along with its standing as a principal human right itself, in the civilisations of antiquity, the private was shunned for very different sets of reasons. The ancient Romans associated the private with a type of “temporary refuge” from the activities of the republic. Privacy was regarded as a state of deprivation.[11]

Hannah Arendt, in The Human Condition, contrasts these differences in how privacy was understood across different periods in history. Connecting it to the concept of equality, she describes that in the ancient Greek city-states, equality indicated the permission to live amongst one’s peers, but the public sphere saw people fiercely seeking to assert themselves as distinct individuals. The public realm, therefore, was for an individual, the space to express themselves (invariably himself then). [12]

Arendt contrasts this with the emergence of the social sphere. Society, as a civilising, normalising force, sought to equalise all individuals, thus, taking away from them their space to distinguish themselves. As the public sphere was being consumed by that of the social, the legal and political recognition of the equality of all persons only aided the complete departure of the expression of the individual in the non-private sphere. [13]

As the space for the expression of individual vanished, the private emerged as a sphere where the vulnerable, the less or non-conforming, and the intimate (but nonetheless real) aspects of an individual could find refuge, something the normalising power of the social would not allow.[14] Privacy attains significance only in the light of a relationship with society. As a socially created need, it is often argued that there would be no need for privacy without the existence of the social. [15]

The private emerged as a sphere where the vulnerable, the less conform, and the intimate (but nonetheless real) aspects of an individual could find refuge, something the normalising power of the social would not allow.

While technology certainly has a role to play in the undermining of the private sphere, different political, social and legal struggles have had a role to play with respect to defining this sphere. The public, the private and the social are determined, essentially, through their constituents. For instance, issues pertaining to labourers and women, whose lives were subject to laborious bodily functions, were concealed in the safety of the private realm in medieval times. With the arrival of modernity, and as the personal became the political, the struggle for liberty emancipated the body from the private sphere thus reconstituting it and revealing that the nature of such spheres can also be determined by a function of what can be shown and what must remain hidden. [16]

Image description: Alternate logo of CIA. Image Source: Interactive artwork by Crowd Source Intelligence Agency.

The Threat to Privacy

As privacy, the basis of some human rights, and a lot of human rights themselves, can be located within the modern liberal tradition of thought,[17] it begs the question of gauging the compatibility of such rights in modern security states with their technical infrastructure that has trespassed (perhaps immutably) into individual privacy. The law, after all, cannot fix what technology has broken.[18]

Anthony Giddens, in The Consequences of Modernity, ponders over the themes of security and danger, and, trust and risk. He notes that these institutional frameworks of modernity inherently contain totalitarian possibilities (like conformism and homogenisation, both threats to pluralism) rather than mechanisms to prevent them.[19] These, thus, necessitate the presence of human rights that protect the interests of individuals. Further, Chris Brown, in his critique of the ‘universal’ nature of human rights, argues that the concept of human rights is essentially a part of the modern liberal ideology prevalent in the west and is possible only in ‘ethical communities’. [20]

Therefore, the threat to privacy is not merely technological in nature, the private realm has been defined in very different fashions over the course of human history. The modern liberal ideology found the basis for human dignity, freedom and autonomy within the concept of privacy. As our sociotechnical infrastructure depends on the collection of insurmountable amounts of data, often collected without effective consent, does the (almost non-existent) notion of the private realm still provide an adequate basis as a concept conjunctive to that of fundamental human rights?

The modern liberal ideology found the basis for human dignity, freedom and autonomy within the concept of privacy.

Taking this argument to its logical conclusion, as both direct and covert forms of surveillance, with their impositions of norms and their disciplinary and corrective functions, continue to be cornerstones that nation-states rely on as tools of governance, it is not farfetched to deduce that the existing notions of autonomy, freedom, and thus, pluralism have taken a backseat in a system of governance that is increasingly inclined towards monitoring and classifying as much information about citizens as is possible. It is therefore of urgent importance to re-evaluate the power structures within which the infrastructure around us finds sustenance in order to incorporate within it more ethical, transparent and equitable notions of politics and governance.