Marcy Peek, The Observer and the Observed: Re-imagining Privacy Dichotomies in Information Privacy Law
Comment by: Colin Koopman
PLSC 2009
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1492231
Workshop draft abstract:
Information privacy law and scholarship has drawn a false dichotomy between those who violate privacy (the “observers” or “watchers”) and those who have their privacy violated (the “observed” or the “watched.”) From the Orwellian concept of Big Brother (in the book 1984) in which everyone is watched at virtually all times, theoretical conceptions of privacy moved to the Foucault-ian notion of the Panopticon, as expressed concretely in the early nineteenth century by Jeremy Bentham. His concept of the Panopticon was of a prison, circular in architectural design, that had at its center at a watch guard tower rising above the circular prison. The key aspect of the Panopticon was the central watch guard tower, which was designed with blackened windows that allowed the guards to see out, but disallowed the prisoners to see in. Thus, the prisoners could not know whether or when the guards were watching them at any given moment. This created a situation of perfect surveillance and perfect control, for the prisoners had no idea at any given time whether the guards were watching or even whether the guards were in the tower at all. In fact, no one had to be in the tower at any given time — for the prisoners knew that they might be surveilled — or not — at any moment of the day or night. These Orwellian, Foucault-ian, and Bentham-ian notions of privacy centered around the dichotomous concept of the observer vs. the observed, or the watcher vs. the watched. None of these notions — which are fundamentally notions of surveillance — take into account — the more fluid concept of the observed and the observer mutually engaging in observation or — to put it another way — both parties (whether consensually or not) watching each other. Information privacy law generally assumes that a person usually wants privacy and that there is a watcher-watched relationship in which a watcher invades a person’s privacy (legally or not). But that assumption is driven by the false dichotomy between the observed and the observer and an erroneous assumption that the observed generally desires privacy vis-à-vis the observer. Once we push at the borders of these assumptions, we begin to understand that privacy relations are more nuanced than often portrayed by information privacy law and scholarship. For example, as technology progresses and examples such as webcams (one-way or two-way), reality shows, long-range imaging devices, video-enhanced cell phones, easily accessible personal information via Internet databases or social networking sites, etc. become commonplace, the meanings of privacy are altered, and we all take on multiple, shifting roles of the watcher and the watched at various times. In effect, we are all watching each other. This new paradigm has a myriad of implications for conceptions of privacy. For example, if one value of privacy is self-development, and the concept of self-development in a less complicated environment of relatively stable observed/observer relations is no longer the norm, then self-development becomes less about privacy and more about constructing identity and the presentation of self in everyday life (see, e.g., Erving Goffman’s works). Indeed, as technology progresses, we all end up in the roles of the watcher and the watched, whether simultaneously or at distinct points in time. As quantum physics teaches us, the knowledge that observation is taking places changes the behavior of the observed; because observation is ubiquitous in the modern, technological world, our conceptions of normative values such as self-development, reasonable expectations of privacy, the privacy torts, and privacy mandates embodied in federal and state law might need to be re-imagined.