This text was presented at the Conference on Privacy and the Criminal Law, Leuven 14th May 2004. It was a reply to David Archard’s exploration of the value of privacy. Though articulated as a reply the text can clarify my thoughts on the relevance of privacy within both our IAP and the FIDIS-project. One of the aims of the text is to indicate that new technologies create new imbroglio’s (identities, correlated humans) and this implies research is needed into the impact of these new technologies on our privacy (considered as a practice of boundary-negotiation). Privacy is not only a matter of personal well-being but also a precondition for the vital civil society that nourishes the democratic constitutional state.
Provisional version, not for quotation. Do only refer to the final published version: Hildebrandt, M., ’Privacy and Identity’, Privacy and the Criminal Law, E. Claes, A. Duff and S. Gutwirth (eds.), Antwerpen - Oxford: Intersentia 2006, p. 43-58

Last year I was in New York first time and afterwords I read the essay by E.B. White on the NY of just after the second world war. On the first pages he celebrates the ’gift of privacy’ one can experience walking around Manhattan. This hit me as a profound truth: like in other metropolitan cities one can acquire an acute sense of privacy in the middle of NY that even goes beyond the privacy of one’s own home. Beyond solitude or exclusive intimacy. It is somehow related to both anonimity, the public eye and a sense of security. I doubt I would feel very private if I felt treathened or if I would be recognized at every corner (as I am in the village where my parents moved after raising me in a city, and as I would be if I were a celebrity - let’s not forget that the right to privacy in the US was very much connected with the exposure of celebraties in the press). The curious thing is that the public gaze, however disinterested, however much the opposite of intimacy, is part and parcel of this acute sense of privacy. This refutes the idea that CCTV cannot be an intrusion on privacy just because I have entered a public space, but it also shows that privacy seems to be connected to such seemingly contradictory phenomena like anonimity, intimacy, the public eye and solitude (nobody will deny that the ability to retreat into the home and be on oneself can be a way to experience privacy). It seems that even while the home and the family are prime examples of a private sphere, it cannot be ruled out that a person might feel more private in the middle of Times Square than within her home and/or family (if that family or home is a place where her bodily or psychological integrity is not respected). With this introduction to my comments on Archards’s beautiful and precise probing into the ’value of privacy’ I hope to have made several points:

1. Privacy is obviously a phenomenon that regards the relationships between a self and its environment/other selves. I like to emphasize the relational aspect of privacy and the importance of the concept of social/phenomenological/embodied space for an adequate understanding of privacy.

2. Privacy is not merely about the exchange or limited access to information but about identity and identification. I will seek to explore the importance of privacy for on the one hand identity-building and on the other hand identification or detection, in connection with the two meanings of identity (idem or sameness and ipse or selfhood, cf. Ricoeur).

3. The relationship between privacy and the divide between public and private is more complex than Archard likes to admit. This goes not only for public and private sphere or space but also for the relationship between privacy and the constitution of the democratic constitutional state and its citizens as citizens of this type of state.

Before briefly going into these points I like to remark on Archard’s attempt to define privacy.

Defining privacy

Following Shoemann Archard stipulates that (1) a definition should be able to cohere different claims to the right of privacy in the sense that they share a common significant and substantive feature and (2) a definition should avoid a right to privacy that is derived from one or a set of moral principles that are also the grounds for some other right. In thus endorsing a cartesian methode, developing an idea of privacy that is ’claire et distincte’, I believe he robbes himself of salient insights into the rich and fuzzy nature of phenomena like privacy. In our way of speaking and thinking of privacy it is strongly related to both intimacy (referring to a relational space that is close and exclusive) and autonomy (referring to the control we like to have when negotiating boundaries with our environment), Archard’s way of defining demands that we look for privacy as something different, disregarding the fact that maybe intimacy, autonomy and human dignity are possible aspects of privacy. The same goes for his demand that the right to privacy cannot be reduced to some other interest such as liberty, individual property, intrusive nuisance, bodily integrity etc.. Instead of investing energy into a strict definition of privacy I would rather take notice of the open texture of words like privacy, being aware of the inherently underdetemined nature of terms that refer to interactional, relational and dynamic phenomena such as privacy. If the phenomenon of privacy is understood as a set of practices in different times and different locations it would be more interesting to develop the concept of privacy in terms of a type that coheres an indeterminate set of tokens that are related by at least a family resemblance in Wittgenstein’s sense. This means that these different tokens do not necessarily share a common feature but are nonetheless related. It also means that concepts like human dignity, autonomy, intimacy, liberty, home, family, correspondance, intrusive nuisance, bodily integrity and public slander or defamation of character may turn out to be conceptuallly linked to the concept of privacy, which implies that it would be silly to demand that the concept of privacy be defined outside the scope of these terms. It also means that the concept of privacy refers to both more and less than each of these concepts, and that the challenge is to taste and probe the complex network of relations between these terms as far as they are related to what we call privacy. This attitute to the phenomemon of privacy could mean that it is more interesting to talk about a plurality of rights to privacy, accepting the fact that the fuzzy nature of privacy demands different legal instruments (not necessarily only rights) to facilitate privacy.

Privacy and space
When defining privacy Archard first indicates a commonly used definition: ’limited access to a specified personal domain (understood as personal information: the set of true facts that uniquely defines each and every individual)’. In this definition attention is given to the personal domain, which seems to refer to personal space as important for privacy, and in the explanation we see a reference to the unique definition of a person or, in other words, to identification (which I will get back to). In the course of his paper he refutes the reference to personal space, because zones of secrecy, anonymity and intimacy all stand for informational non-disclosure and as such are part of the definition he himself proposes: limited access to restricted personal information. About the relationship between privacy and invasion of one’s body space, he remarks that this may be very unpleasant but as long as one is not actually in touch this is nuisance and not a violation of one’s right to privacy. This may be true, but not every violation of privacy is a violation of the right to privacy since this right is obviously restricted as all legal protection is.
Other than Archard I think the concept of space is crucial for privacy, though not in a naturalist sense. In fact very interesting research has been done by Irwin Altman (environmental psychology). He shows, also from a comparative perspective, how space and privacy are intricately interwoven. For instance the actual construction/composition of the home and the family (both the building and the people that live together, such as the nucleair or extended family) is crucial for the way people construct their privacy. Altman speaks of privacy as a matter of dialectical boundary control, whereby the fact that people are forced to live together in a limited space without much possibility to be on oneself leads to a certain closure or reservation. In such situations it can happen that people do not show any emotion or even expression on their face. This does not indicate an empty emotional life but a particular way to maintain a desired level of privacy.

Regarding Archard’s example of sensory and cognitive access to him ’having heterosexual sex with Y’, it may be interesting to realize that many people in the world live in a home/family situation whereas sensory access to their parents, brothers, aunts having sex is unavoidable since they sleep in one room. This of course influences their behavior in terms of privacy. It does not mean they have no privacy, but that they find other ways to protect their boundaries.

In terms of modern technologies, like webcams, I think the distinction between sensory and cognitive access blurs, precisely because of the fact that ’the social space within which people operate is no longer identical to the physical space that is readily perceived’. Whoever watches individuals via a webcam or a CCTV-camera, has both sensory access and cognitive access. But the sensory access is mediated by a technology, thereby reducing the access (we cannot smell or touch and the visual access is framed, limited), but also enhancing the access by extending the space in which access is possible (to a public that cannot be seen by the participants, an asymmetry). In the case of the webcam the question comes up whether this renders the space public, and if so, whether this rules out an invasion of privacy and/or whether this depends on the consent of those being viewed? My first point here is that the answers to these questions are context-dependent: who is watching, on who’s initiative, are these images stored, for how long, are they also processed, by whom, for what purpose, who has official access, who has unofficial access, are the images sold (pornography), or are they interpreted, classified and this information then sold (to whom, for what reason, on who’s initiative)? My second point is that technological mediation of sensory access changes the nature of both this sensory and cognitive access and their relationship, by changing the space and pace in which both perceptual and conceptual knowledge is accessed. This has obvious consequences for the way people construct and protect their boundaries, especially if we shift our attention to the impact of new types of access that are used by large bureaucracies (both state and corporate business enterprise) for security and/or marketing purposes. Beyond simple examples like webcams and CCTV’s we should then also think of profiling technologies (automatic generation of behavioral profiles to identify possible target groups) and ambient intelligence (electronic agents interacting ubiquitously with our environment), both of which generate modified, reduced and enhanced forms of both sensory and cognitive access to personal information.

My point is that the way Archard distinguishes between sensory and cognitive access is not adequate if we want to deal with the phenomenon of privacy in a technologically mediated world such as ours. As to sensory or rather perceptual knowledge I plead a more phenomenological interpretation, using lived and objectified space and time (and their interrelation) as a more salient tool when assessing the changes that occur in the way people can construct their privacy because of the advance of new technologies. As to cognitive or rather conceptual knowledge I think Archard underestimates the extent to which this type of personal information (data) can impact identity-building and is thereby relevant for the construction of privacy.

Identity: dynamic interaction of sameness and selfhood
In his definition Archard stresses limited access - a seemingly common feature of all understanding of privacy - and (restricted) personal information. He then defines personal information as true facts that identify the person as a unique individual. I like to stand still for a while to examine the relationship between privacy and identity, because I think the core of privacy is to be found in the idea of identification. Not only because in our information society it is precisely identification techonlogies that raise questions of privacy-protection, but at the same time because the process of identity-building is what is at stake in privacy.

In their introduction to Technology and Pricacy: The New Landscape (1998: 7) Agre and Rotenberg suggest the following working definition of the right to privacy, referring a.o. to Roger Clarke’s digital persona: ’the right to privacy is the freedom from unreasonable constraints on the construction of one’s own identity’. One of the interesting things about this definition is the apperent link between negative freedom (liberty), freedom from, and positive freedom (identity-building), freedom to (cf. Gutwirth & De Hert). Another attractive element of course is the use of the term ’unreasonable’ that precludes an absolutist attitude to privacy-invasions: not every possible constraint on identity-building is warded of by the right to privacy (cf. Gutwirth & De Hert). Of course those that imagine that the law can provide absolute certainty will dislike vague terms such as reasonableness, but as a lawyer and as a philosopher I would claim such certaintly is non-existent and the attempt to provoke it would close the law off from real life (Begriffsjurisprudenz, legalism, stare decisis, legal formalism).

However the most interesting part of this definition seems to me the recognition of identity as something under construction and the central importance of this process of construction for matters of privacy. If you define personal information as a set of true facts that identify a person as an individual you imply a static conception of identity: it presumes that the core of an individual can be fixed for identification. This of course is a necessary presumption if we want to have an adequate system of identification, needed to distribute access to a number of services in a welfare and/or market state. But this is only one side of the coin, directed to detection and based on specification, on correlations that can individualize a person within a population. The other side concerns something seemingly different altogether: identity-building. This last type of identification presumes that humans are not born as individual persons, but develop into persons while relating to their environment and interacting with other selves. The self then is constituted by interaction with others, in the face of its own otherness (from these others). The continuity of this relational self implies that the autobiography of the self is continuously re-written in confrontation with the flow of new events that shape one’s perception of self, world and others. Privacy is the process of boundary negotiations that allows a person to hold together while changing, it presumes some measure of autonomy, some real contact like intimacy and some space to rebuild the self in accordance with one’s past while anticipating one’s future (anonimity, solitude). Contrary to identification in the sense of detection (correlative-identity), identity-building (selfhood-identity) implies indeterminacy, and as such privacy implies the recognition of this indeterminacy.

Now I should get back to Archard. I think the most interesting and original contribution of his paper is his distinction between sensory and cognitive access. Archard defends the prohibition of sensory access to a certain kind of information, while not making a problem of cognitive access to the same information. De Hert and Gutwirth - while they also defend the prohibition to probe in the private sphere understood as individual liberty - do make a problem of gathering, storing and processing of data. Other than Archard they point to possible dangers of the mere availability of personal data. Their concern with the availability of personal data to powerful institutions, and certainly not only to the state, is not only based on the possibilities of abuse but beyond that on the impact of profiling, ambient intelligence and other ubiquitous information and communication technologies have on the liberty of an individual.

Privacy and the public/private divide
This brings me to my last point: the way Archard talks about privacy in relation to the public/private divide. With Gutwirth and De Hert I think privacy is a prime concern for the construction of the democratic constitutional state. The relationship between privacy and democracy is best summerized by referring again to the link between negative and positive freedom, as exemplified in the definition of Agre en Rotenberg. Identity-building is a condition of possibility for a strong civil society and - as Gutwirth and De Hert indicate referring to Habermas and Arendt - the public debate within the private sphere is a precondition for the workings of a democracy. Rights to privacy are therefor not only a matter of private well-being. They are instruments to (re)construct the preconditions for our democratic constitutional state. This means also that - other than Archard seems to suggest - privacy-rights go way beyond defense against abuses of state power.

It is important here to discriminate between three senses of the term public: (1) public space as opposed to spaces of solitude or intimacy and (2) public in the sense of the domain of the state, as opposed to civil society and (3) the public good as opposed to private interest. About the first point I have already remarked that the mere fact that I enter a public space does not rule out a right to privacy: advanced identification technologies (including profiling and ambient intelligence) change our perception of social/phenomenological space, making it all the more important to investigate the privacy one can build into public spaces (cf. White’s New York’s gift of privacy) and the publicness of private behavior (webcam & CCTV).

As to the second and third meaning of public, Archard f.i. talks about a simple trade-of between governmental access to non-restricted, mostly cognitive personal information on the one hand and presumedly effective anti-criminal measures on the other hand and finds this no problem at all. The only problem at hand could be abuse of state-power. On top of that he proclaims a person ’fearful of her own decisions, or of acting on them, merely because others know what she would rather keep secret has a weak personality (...) her own nature, and not the loss of privacy, is what incapacitates her’.

In a democratic constitutional state the government should be sensitive to unreasonable constraints on identity-building. Because this is a matter of the public good and is not necessarily confined to dealings between a government and its citizens, it is a task for the state to prevent government and other dominant centres of power from unreasonable restrictions on identity-building. And the point of intervention should not be the moment at which abuse is discovered but long before that, because the invasion of privacy that takes place with high-tech profiling and ambient-intelligence instruments does not depend on abuse but on the way these technologies impact identy-building. Example: profiling technologies and ambient intelligence are used to manipulate/influence/modify preferences of consumers, to stigmatize residents of foreign descent or to diagnose other types of behavior that are judged unprofitable or inadequate for society. The feed-back of these techniques can be used to give people reasons to rebuild their identity in ways that turn them into profitable consumers, assimilated foreign residents or - more in general - citizens that fit well into the scenario’s of our policy-makers and marketing managers. The effects of these advanced technologies should not be described in terms of weak or strong personalities but in terms of their impact on identity-building, citizenship and democracy.