I was able to see Robert Post present his article, “Data Privacy and Dignitary Privacy: Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere”, today. My other encounter with Post’s work was quite positive, and I was very happy to learn more about his thinking at this talk.
Post’s argument was based off of the facts of the Google Spain SL v. Agencia Española de Protección de Datos (“Google Spain”) case in the EU, which set off a lot of discussion about the right to be forgotten.
I’m not trained as a lawyer, and will leave the legal analysis to the verbatim text. There were some broader philosophical themes that resonate with topics I’ve discussed on this blog andt in my other research. These I wanted to note.
If I follow Post’s argument correctly, it is something like this:
- According to EU Directive 95/46/EC, there are two kinds of privacy. Data privacy rules over personal data, establishing control and limitations on use of it. The emphasis is on the data itself, which is property reasoned about analogously to. Dignitary privacy is about maintaining appropriate communications between people and restricting those communications that may degrade, humiliate, or mortify them.
- EU rules about data privacy are governed by rules specifying the purpose for which data is used, thereby implying that the use of this data must be governed by instrumental reason.
- But there’s the public sphere, which must not be governed by instrumental reason, for Habermasian reasons. The public sphere is, by definition, the domain of communicative action, where actions must be taken with the ambiguous purpose of open dialogue. That is why free expression is constitutionally protected!
- Data privacy, formulated as an expression of instrumental reason, is incompatible with the free expression of the public sphere.
- The Google Spain case used data privacy rules to justify the right to be forgotten, and in this it developed an unconvincing and sloppy precedent.
- Dignitary privacy is in tension with free expression, but not incompatible with it. This is because it is based not on instrumental reason, but rather on norms of communication (which are contextual)
- Future right to be forgotten decisions should be made on the basis of dignitary privac. This will result in more cogent decisions.
I found Post’s argument very appealing. I have a few notes.
First, I had never made the connection between what Hildebrandt (2013, 2014) calls “purpose binding” in EU data protection regulation and instrumental reason, but there it is. There is a sense in which these purpose clauses are about optimizing something that is externally and specifically defined before the privacy judgment is made (cf. Tschantz, Datta, and Wing, 2012, for a formalization).
This approach seems generally in line with the view of a government as a bureaucracy primarily involved in maintaining control over a territory or population. I don’t mean this in a bad way, but in a literal way of considering control as feedback into a system that steers it to some end. I’ve discussed the pervasive theme of ‘instrumentality run amok’ in questions of AI superintelligence here. It’s a Frankfurt School trope that appears to have made its way in a subtle way into Post’s argument.
The public sphere is not, in Habermasian theory, supposed to be dictated by instrumental reason, but rather by communicative rationality. This has implications for the technical design of networked publics that I’ve scratched the surface of in this paper. By pointing to the tension between instrumental/purpose/control based data protection and the free expression of the public sphere, I believe Post is getting at a deep point about how we can’t have the public sphere be too controlled lest we lose the democratic property of self-governance. It’s a serious argument that probably should be addressed by those who would like to strengthen rights to be forgotten. A similar argument might be made for other contexts whose purposes seem to transcend circumscription, such as science.
Post’s point is not, I believe, to weaken these rights to be forgotten, but rather to put the arguments for them on firmer footing: dignitary privacy, or the norms of communication and the awareness of the costs of violating them. Indeed, the facts behind right to be forgotten cases I’ve heard of (there aren’t many) all seem to fall under these kinds of concerns (humiliation, etc.).
What’s very interesting to me is that the idea of dignitary privacy as consisting of appropriate communication according to contextually specific norms feels very close to Helen Nissenbaum’s theory of Contextual Integrity (2009), with which I’ve become very familiar in past year through my work with Prof. Nissenbaum. Contextual integrity posits that privacy is about adherence to norms of appropriate information flow. Is there a difference between information flow and communication? Isn’t Shannon’s information theory a “mathematical theory of communication”?
The question of whether and under what conditions information flow is communication and/or data are quite deep, actually. More on that later.
For now though it must be noted that there’s a tension, perhaps a dialectical one, between purposes and norms. For Habermas, the public sphere needs to be a space of communicative action, as opposed to instrumental reason. This is because communicative action is how norms are created: through the agreement of people who bracket their individual interests to discuss collective reasons.
Nissenbaum also has a theory of norm formation, but it does not depend so tightly on the rejection of instrumental reason. In fact, it accepts the interests of stakeholders as among several factors that go into the determination of norms. Other factors include societal values, contextual purposes, and the differentiated roles associated with the context. Because contexts, for Nissenbaum, are defined in part by their purposes, this has led Hildebrandt (2013) to make direct comparisons between purpose binding and Contextual Integrity. They are similar, she concludes, but not the same.
It would be easy to say that the public sphere is a context in Nissenbaum’s sense, with a purpose, which is the formation of public opinion (which seems to be Post’s position). Properly speaking, social purposes may be broad or narrow, and specially defined social purposes may be self-referential (why not?), and indeed these self-referential social purposes may be the core of society’s “self-consciousness”. Why shouldn’t there be laws to ensure the freedom of expression within a certain context for the purpose of cultivating the kinds of public opinions that would legitimize laws and cause them to adapt democratically? We could possibly make these frameworks more precise if we could make them a little more formal and could lose some of the baggage; that would be useful theory building in line with Nissenbaum and Post’s broader agendas.
A test of this perhaps more nuanced but still teleological (indeed, instrumental, but maybe actually more properly speaking pragmatic (a la Dewey), in that it can blend several different metaethical categories) is to see if one can motivate a right to be forgotten in a public sphere by appealing to the need for communicative action, thereby especially appropriate communication norms around it, and dignitary privacy.
This doesn’t seem like it should be hard to do at all.
Hildebrandt, Mireille. “Slaves to big data. Or are we?.” (2013).
Hildebrandt, Mireille. “Location Data, Purpose Binding and Contextual Integrity: What’s the Message?.” Protection of Information and the Right to Privacy-A New Equilibrium?. Springer International Publishing, 2014. 31-62.
Nissenbaum, Helen. Privacy in context: Technology, policy, and the integrity of social life. Stanford University Press, 2009.
Post, Robert, Data Privacy and Dignitary Privacy: Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere (April 15, 2017). Duke Law Journal, Forthcoming; Yale Law School, Public Law Research Paper No. 598. Available at SSRN: https://ssrn.com/abstract=2953468 or http://dx.doi.org/10.2139/ssrn.2953468
Tschantz, Michael Carl, Anupam Datta, and Jeannette M. Wing. “Formalizing and enforcing purpose restrictions in privacy policies.” Security and Privacy (SP), 2012 IEEE Symposium on. IEEE, 2012.