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Conditions of freedom: Privacy as a prerequisite to political participation

Law researcher Andrew Roberts examines the value of and risks to privacy in western style democracies. Presented by Lynne Haultain.

“Well, this, I think, is a problem for liberals because if you don't know that someone else has got that information, it can't affect your autonomous decision making.” — Andrew Roberts




Andrew Roberts
Andrew Roberts

Andrew Roberts is a Senior Lecturer at Melbourne Law School. His current research uses republican political theory and ideas of domination and self-government as a framework for exploring the role that the concept of privacy might play in determining the scope of the criminal law, in shaping the contours of the criminal procedure, and in influencing the way that we think about the criminal trial. His article A Republican Account of the Value of Privacy in the European Journal of Political Theory (forthcoming, 2015; see here for an earlier working paper) explains how privacy serves the republican aim of securing conditions of freedom as non-domination. According to this account, privacy is valuable by virtue of its capacity to prevent others acquiring power to interfere in our decision-making – to subject us to domination. This research builds on a long-standing interest in criminal evidence and procedure, subjects on which he has published widely.

Credits

Host: Lynne Haultain
Producers: Eric van Bemmel, Kelvin Param
Audio Engineer: Gavin Nebauer
Voiceover: Nerissa Hannink
Series Creators: Kelvin Param and Eric van Bemmel

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VOICEOVER

This is Up Close, the research talk show from the University of Melbourne, Australia.


LYNNE HAULTAIN

Hello, and welcome to Up Close. I'm Lynne Haultain. The notion of big brother and the creeping imposition on our privacy has been going on for decades and, perhaps, like a frog in a pot of warming water, we continue to acclimatise. We get used to the rising temperature of surveillance and put it down to the price we have to pay for security or for convenience in modern Western societies.

And the arguments often run that if we don't have anything to hide from big brother, we have nothing to fear. But what does this do to our sense of ourselves as fully functioning participants in a democracy? Andrew Roberts, from the Melbourne Law School, has research interests in criminal procedure and political theory, as well as in the nature of privacy.

In his recent paper in the European Journal of Political Theory, Andrew's written a "Republican Account of the Value of Privacy", looking closely at different approaches to privacy and how far those theories go in defending us against the known and the unknown incursions into our privacy.

Many thanks for your time, Andy.


ANDY ROBERTS

Thank you very much.


LYNNE HAULTAIN

Let's start with some definitions, because we're in an interesting definitional minefield here. First of all, republican and liberal theories you set out in your paper. Take me through what you mean by republican and liberal in this context.


ANDY ROBERTS

I'm using those terms as they're used in the tradition of political thought. Republicanism is a political theory with a long history. Modern republican writers still refer back to the republican democracies of ancient Athens and Rome, and that's contrasted with liberalism as a tradition of political thought, which has as its central ideals the notions of freedom and autonomy. Those terms are nothing to do with modern political parties. The Liberal Party in Australia probably...


LYNNE HAULTAIN

Or the Republican Party in the US?


ANDY ROBERTS

Or the Republican Party in the US, don't reflect these traditions of political thought. And many liberals and republicans would say that those parties that bear their names are antithetical to the ideals of the political theories.


LYNNE HAULTAIN

Which is a whole program in itself.


ANDY ROBERTS

Yes.


LYNNE HAULTAIN

But we'll stick close to your issue, which is the nature of privacy. Now, tell us what you mean by that term too in this context, because it has, I think, a broad range of definitions depending on the context and who you're talking to.


ANDY ROBERTS

Yes. This is a problem for anyone interested in and trying to make sense of the concept of privacy. One of the things I've been looking at is to think how privacy relates to broad political theories. Almost everyone who's interested in the concept of privacy recognises it's instrumental, that it's a means of securing some end. So liberals tend to think of privacy as being a prerequisite for the development of an autonomous way of life.


LYNNE HAULTAIN

Mm-hm.


ANDY ROBERTS

Republicans, on the other hand, will say that privacy is something that's valuable because it protects you from domination. And I'm sure we'll come to the definition of that shortly. And depending on the ends that you see the concept of privacy serving, that will influence the way in which you would be inclined to define it. For liberals, who say that privacy is about autonomy and personal choice, it's individualistic.

They may well choose to define privacy as a desire for inaccessibility relating to the preferences of the individual; whereas those people who subscribe to political theories, that are willing to countenance the imposition of a duty to maintain one's privacy, they may well be more inclined to accept or adopt a definition of privacy that allows you to use it as the object of a duty. So to define privacy in terms of one's preferences for inaccessibility, a desire for inaccessibility, it means that you can't use privacy as the subject of a duty.


LYNNE HAULTAIN

So from the republican point of view then you're saying that there's a right and a responsibility to privacy. Is that fair?


ANDY ROBERTS

Yes. I think republicans would want to define privacy in a way that could make it the subject of a duty, if that served the end of securing conditions of non-domination for citizens.


LYN HAULTAIN

But it really comes to that relationship between freedom and power and privacy, doesn't it?


ANDY ROBERTS

Yes.


LYNNE HAULTAIN

So it's about how those two concepts really - freedom and privacy - interrelate. Is that that dichotomy as you see it between the right and the responsibility? Is it freedom and privacy?


ANDY ROBERTS

Yes. Privacy is a concept that secures a degree of freedom; so the freedom from certain forms of intrusive conduct. Ruth Gaviszon says that we lose privacy as soon as others start learning information about ourselves, as soon as others start gaining access, and also as soon as others begin to observe you.


LYNNE HAULTAIN

Well, that's pretty early in the piece, I would have thought.


ANDY ROBERTS

It is pretty early in the...


LYNNE HAULTAIN

We start giving away that information very young.


ANDY ROBERTS

Yeah. And others have criticised this definition because they point out as soon as you walk out of your front door in the morning you start losing privacy and you continue losing privacy for the rest of the day. But what a broad definition of privacy does do is provides the basis for a wide ranging discussion. The idea of deliberation is one that republican theorists would endorse as an appropriate political process for taking into account all decisions, interests and views and positions when making decisions that will have some bearing on their privacy.


LYNNE HAULTAIN

So we are conscious of the privacy that we offer up in exchange for a greater participation in the political process.


ANDY ROBERTS

Yes, I think so. If you think about the broad definition of privacy and the criticism that it distorts what we understand privacy to be, I think the answer to that criticism is that a broad definition allows us to talk about privacy in all of those situations in which anyone might say there's an interference with my privacy here.

When you start suggesting that there ought to be a rather narrower definition of privacy, I think then we run into problems of searching for a concept as a framework for discussing things or measures that can have a significant bearing on someone's fundamental interests. So some people suggest, for example, that privacy is just something that relates to the use or misuse of personal information. For those people mere surveillance or physical access to a person wouldn't constitute an interference with our privacy.


LYNNE HAULTAIN

Let's talk then about this concept of non-domination because that's central to this. I suppose it's useful because it gives us some case studies, if you like, some examples of ways in which privacy can be impinged and how that plays into the way in which we experience loss of privacy in 2014 and beyond. What is non-domination?


ANDY ROBERTS

Well, Philip Pettit, who's probably the leading contemporary republican writer, has defined it in a particular way. So he says that someone is subject to domination to the extent that another person has a power to interfere in the choices that the person is in a position to make. It'll be domination, he says, to the extent that the person who's in the position to make the choices is unable to exercise control over the power to interfere that the other person has.


LYNNE HAULTAIN

So Philip Pettit talks about the three ways in which your privacy can be impinged, or at least power can be exerted upon you, and this way in which he expresses this notion of domination, one of which is about the replacing of options. The second is removal of options, and the third is manipulation or misrepresentation. Now, it seems to me all three of these appear in multitudinous ways in modern life. Let's take them one at a time and tease those out a bit. Replacing options, what's that one?


ANDY ROBERTS

Well, the idea here is that the person with the power to interfere simply replaces one option with another that's less attractive, less appealing. An example I give is the criminalisation of certain forms of consensual sexual activity. Prior to criminalisation you had the option of engaging in that form of sexual activity or not. Your option of engaging in a consensual activity is now replaced with the option of either not engaging in that activity or engaging in that activity and being subject to criminal sanction, to punishment.


LYNNE HAULTAIN

So the option is still there, but it comes at a high, high cost.


ANDY ROBERTS

I suppose the fundamental option to engage in that activity or not is still there, but the sanction free option has now been replaced with one that attaches punishment if you're caught.


LYNNE HAULTAIN

Yes, absolutely. So there's that one. There's the removal of options, which is things like an unknown, unseen database which might blacken your name and prevent you from getting a job or a visa or a bank account or an insurance policy. Is that right?


ANDY ROBERTS

Yes. Again, the example is a story that appeared in The Guardian. I think it was in 2013. It came to light that a cadre of construction firms in the UK had compiled a list of names of construction workers who they perceived to be problematic, troublemakers. And it seems that the police were also involved in the compilation of this database, supplying information on various people.

That database was used to inform employment decisions on big construction projects. So, obviously, from the constructor's point of view, they would rather not employ people who were thought to be troublemakers who might disrupt the project. In a very real sense, inclusion on that database effectively curtailed your employment options.


LYNNE HAULTAIN

And the third one is about manipulation or misrepresentation. This strikes me as 21st century marketing really [laughs], isn't it?


ANDY ROBERTS

Yes.


LYNNE HAULTAIN

Could you explain?


ANDY ROBERTS

Yes. This is a very subtle form of interference. The practice of Target, which is a large American supermarket chain, it was using its loyalty scheme, together with information taken from the bar code scanners that track customers' purchases, and one of the things that it did with this information was to infer that women who purchase certain products might be pregnant, and then used that information as part of a strategy of targeting marketing.


LYNNE HAULTAIN

The products they looked for were things like magnesium supplements and...


ANDY ROBERTS

That's right.


LYNNE HAULTAIN

...those sorts of early hints, I suppose, that you might be pregnant.


ANDY ROBERTS

That's right. The idea was that if you can get the people to come back and buy pregnancy related products, the research tended to suggest that they'd stay loyal to you for several years.


LYNNE HAULTAIN

So in that instance we've got a situation where people might regard that as convenient. It was thoughtful, if you like, of Target to use their algorithms to determine what sort of marketing and advertising to pitch at you. And with the previous example it can be seen as being about security around the keeping of databases and the like. But there's a plus and a minus in all of this, isn't there? I mean we are sold this argument that these are the prices we have to pay for security, for convenience, that we cede a whole lot of personal information to these corporates or governments in order to ensure our personal freedom, in a way, which is a weird kind of outcome, isn't it?


ANDY ROBERTS

It is. People have put it to me that this targeted marketing is to our advantage. It's convenient, as you say. For some people it will be convenience. For others it'll be unwarranted or unwanted intrusion. Another good example is when you've been browsing the internet for things that you might like to buy, someone somewhere - Google probably - is collecting that information, and the next time you start up your computer the adverts appear down the side of your screens.


LYNNE HAULTAIN

Magic.


ANDY ROBERTS

Mm.


LYNNE HAULTAIN

[Laughs]


ANDY ROBERTS

But it's not difficult to envisage situations in which you might be at your computer with someone else, and that advertisement might cause you considerable embarrassment. There are probably more powerful examples of manipulation of choices. So if I read your diary and I get to learn about your fears and anxieties, you don't know that I've read your diary, but now I have information that I can use to try and manipulate your decision making in certain situations and steer you to make decisions that I would like you to make that you might not necessarily make without my intervention.

For example, if you're considering going to some event and I would rather you didn't go, if I read in your diary that you're fearful of someone or you don't like someone's company, I might suggest to you that that person will be at the event. And in that way I can manipulate you into deciding not to go to the event, and that's come through your loss of privacy.


LYNNE HAULTAIN

I'm speaking with Andrew Roberts of the University of Melbourne Law School about his recent work on the value of privacy. And we're teasing out the ways in which privacy can be invaded. Andy, that example takes us to a new position, in that we do not know that you've read my diary. I don’t know that. So I'm in a state of blissful ignorance, and you wield this power. That's, I suppose, a key element in contemporary understandings of privacy: the guessed, but not necessarily known unknowns - the things we don't know that people know about us - and how we might be being manipulated and oppressed without any contribution on our part, so it's not as if we've played - as per the earlier republican definition - a part in ceding this level of personal information in order to exchange it for greater security. We just don't know. So where does the republican argument line up on that?


ANDY ROBERTS

Well, I think where republican thinking is particularly useful in problematizing those sorts of situations where we just don't know what information other people have about us, or what information about us they're accessing, it seems to me, for liberal thinkers, this is a problem because liberals say that the value of privacy lies primarily in the fact that it's a prerequisite for autonomy.

So liberals would say if you know that I've got information about you that you'd rather I didn't have, you automatically and involuntarily adopt the perspective of a third person on your situation. You start thinking what will that person think about me and the decision that I might make. And that will have an effect on what liberals refer to as your authenticity, the extent to which you decide for yourself what sort of person you're going to be and what kind of life you are going to live.


LYNNE HAULTAIN

So I might second guess myself or my own reactions or responses to things?


ANDY ROBERTS

Yes, the shame or embarrassment of other people knowing about certain things that you'd like to do, or do, do in private might force you into making rather different decisions about your life than those that you would make if no-one knew, or only those people who you would want to know that information.


LYNNE HAULTAIN

That's a very classic invasion of privacy.


ANDY ROBERTS

Yes.


LYNNE HAULTAIN

Whereas if you don't know that they know, what have you got to lose?


ANDY ROBERTS

Well, this, I think, is a problem for liberals because if you don't know that someone else has got that information, it can't affect your autonomous decision making. I think republicans here have an answer, and their answer will be even if you don't know that someone else has your personal information, the fact that they have that information gives them power over you, the power that we were just speaking about, the power to interfere with your decision making in various ways.


LYNNE HAULTAIN

And that, of itself, is a bad thing. Is that the view?


ANDY ROBERTS

Yes. It may be that they have this information and at this time they have no intention of acting upon it, but your freedom to choose, if we can call it that, is contingent on them being, or continuing to be, predisposed to not acting on that information. But, of course, that may change at any point. The moment that you lose that information, and the other acquires the power to interfere and having that information, republicans would say your freedom's diminished to some extent.


LYNNE HAULTAIN

Which is the cover that I think many of us are looking for in the current experience, that we feel this tension between the privacies that we have ceded, for national security or personal security or personal convenience, but we feel this core of discomfort which, as you point out, the republicans say if that's known by a third party - even if you don't know that it's known - then that's still a problem.


ANDY ROBERTS

Sure.


LYNNE HAULTAIN

So that goes to the broader definition, I suppose, of privacy in the first instance.


ANDY ROBERTS

Yes, it does.


LYNNE HAULTAIN

So how do we deal then with the contemporary situations like mega databases and data retention, which is very much in the news across the world, that governments are imposing greater requirements for data retention? We might not know what they know, but we understand that they're keeping it and that it could be used against us down the track.


ANDY ROBERTS

I think this implicates another strand of republican thinking. The idea of a self-governing polity, the decision as to whether the Government develops some super database, is one in which all citizens should have some meaningful say.


LYNNE HAULTAIN

So we should know enough about what they propose to do, and for what purpose and for how long, in order to make a considered judgement?


ANDY ROBERTS

Exactly. We need to be provided with a convincing, plausible, detailed justification for the development of a super database. And on the basis of that information citizens ought to have some meaningful say in who goes on the database, what information relating to people goes on the database, who can access it, for what purposes, and establishment of criminal offences for unlawful, unsanctioned instances of access to the database.


LYNNE HAULTAIN

Andy Roberts joins us on Up Close today. We're exploring the value of privacy. And I think we've reached a very critical point here in terms of how we value and, therefore, what part it plays in our democratic process, and where we put it on that priority list of issues up against national security and the others, because it would seem to me, as you define it, Andy, we're in a bit of a chicken and egg. We're saying give us more information about the database. They're saying we can't because that would impose inappropriate constraints on the nature of the database, which would have a necessarily bad effect on national security. Is that the kind of bind we're in?


ANDY ROBERTS

I think it is. We're in a position at the moment where we're given very little information about the nature and extent of the threats that justify the development of databases and, more topically, powers to retain communications data for substantial periods of time. I think there's a disconnect between Government and citizens. The answer might be to rethink that relationship to critically reflect on a growing distance between the polity generally and those who govern. We've moved a considerable distance away from the idea of a self-governing polity that makes the rules and determines the terms on which official power can be used.


LYNNE HAULTAIN

So the contemporary manifestation of democracy is failing us. Is that what you're saying?


ANDY ROBERTS

Yes. I think this was one of the impetuses behind the modern revival in republican thinking. Republican theorists, I think, became disenchanted with liberalism and thought that it had lost its way, and particularly in this idea of self-government, that it's through people's participation in the political process that they can secure individual freedom for themselves and for others.


LYNNE HAULTAIN

So the of, by and for the people is no longer actually true.


ANDY ROBERTS

Yeah. I think we run into difficulties when we start thinking about whether there is government by the people.


LYNNE HAULTAIN

So what do we do? Where to from here?


ANDY ROBERTS

Well, that's the big question. It's difficult to see how all of this is going to change. There are murmurings from time to time about the need to re-engage the public in politics, but there seems to be no sustained effort or coherent plan to do that.


LYNNE HAULTAIN

Are there any structures that you see operating where there is, perhaps, a greater level of scrutiny - whether or not it be by the Government itself or by another body - to oversee or to mediate the relationship between the powerful and the citizenry?


ANDY ROBERTS

I struggle to think of any country, western democracy, in which there is that degree of scrutiny. There is certainly some constitutional courts who see themselves as guardians of the democratic process. So the German constitutional court, I think, sees part of its function as being to ensure that citizens do have an opportunity to influence the democratic legislative process.


LYNNE HAULTAIN

Successfully or otherwise?


ANDY ROBERTS

I think the German court has had considerable success. A notable case widely referred to as the German census case, in which the German census asks citizens about their political affiliations - the German constitutional court thought was a threat to democracy because it might inhibit citizens from political association, political protest and, generally, participation in political decision making.


LYNNE HAULTAIN

I suppose censuses are yet another iteration, if you like, of information that we freely give in the interests of policy development and service provision and the like, but which come at a cost.


ANDY ROBERTS

Yeah. I think privacy scholars and privacy advocates generally accept that there is a need for governments to collect data about the population. They part company on the extent of the data that they need to collect and the purposes for which they say they need to get data.


LYNNE HAULTAIN
And the control over the extent of that, it would seem, from your concerns about data retention?


ANDY ROBERTS

Yes, I think so. I think one of the problems with data retention is not so much the fact that data has been retained, but the fact that the governance of databases is not all that it ought to be. Thinking about a recent decision of the European Court of Justice, in a case – digital rights against Ireland - there was a challenge to the EU data retention directive. This was a directive that required member sites in the European Union to provide for the retention of communications data for periods of up to two years.

The European Court of Justice found that this violates the right to privacy, or right to respect for private life of European citizens. Essentially, it required the collection of all of the communications data of all 340 million European citizens; that it was indiscriminate, that the directive didn't specify who ought to have access to the data or for what purposes, and it imposed no limitations on the collection of data. There was no nexus between the purpose that it was said that data was collected for. That is to say, security and the collection of data itself.


LYNNE HAULTAIN

It feels like this is an issue that is only going to continue to trouble not only academia but, certainly, all of us who have an interest in how our personal relationships play into the broader experience of being a citizen in a democracy.

Andy, thank you so much for joining us and trying to tease that out.


ANDY ROBERTS

Thank you very much.


LYNNE HAULTAIN

We've been talking about the value of privacy and how curtailing it affects democracy with Andrew Roberts from the Melbourne Law School. He's co-author of "Identification: Investigation, Trial and Scientific Evidence", as well as a number of articles. You'll find details of his publications on the Up Close website, together with a full transcript of this and all our other programs.

Up Close is a production of the University of Melbourne Australia, created by Eric van Bemmel and Kelvin Param. This episode was recorded on 3 November 2014 and was produced by Kelvin Param and Eric van Bemmel, with audio engineering by Gavin Nebauer. I'm Lynne Haultain. Thanks for listening. I hope you can join us again soon.


VOICEOVER

You've been listening to Up Close. We're also on Twitter and Facebook. For more information visit upclose.unimel.edu.au. Copyright 2014, the University of Melbourne.


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