Living between the lines • Notes

I Avoid The Word “Privacy” (And You Should Too)

About one obstacle to thinking about our relationships through information

Notion addressed: Information (including personal information) and information technology play multiple growing roles in every aspect of the lives of individuals, groups and societies.

I was planning to write my own reading of the inquiry and recommendations of the Privacy Commissioner of Canada on the management of personal information by Facebook. However, I too often stumbled on the words “privacy” in the documentation of the Commissioner and articles from the media and other commentators. Too often not to publish beforehand this cautionary piece.

Early in my work, I became cautious with the use of the term “privacy“. It has so many different meanings that it becomes a genuine barrier to communication. More importantly, its use has become customary whenever it comes to discussing personal information handling. So much so that it now constitutes a real obstacle to the exercise of thinking specific usages and their social roles and implications. As a result, we also observe technical, social, economical and commercial failures.

Multiple meanings, failed communication

I remember this typical scene: a public meeting of a regional health and social services board in 1998. On the agenda, a regional telecommunications network project. One services users’ advocate speaks about patients’ privacy: she wants to ensure that patients keep their freedom to choose their health care professionals. The Director General responds that privacy will be ensured through a smart card that will secure communications. Obvious dialogue of the deaf. The answer had absolutely no relation with the question. One spoke of a fundamental freedom, the other of technical safety measures. The illusion of dialogue came from the use of the same word: “privacy“.

Last month, a colleague working on computerized patient records confirmed that such mix-ups are still common. So, she herself also tries to avoid using “privacy“.

Confusion by =thiagolooney on deviantART

Indeed, that term refers to things as diverse as:

• physical, psychological or interpersonal intimacy;
• personal or family life;
• ability to stay away from others or to control possible interactions with them;
• fundamental human rights and freedoms (in general or some of them in particular);
• standards of fair personal information management (also known by other terms such as “personal data protection”);
• preserving the confidentiality of particular communications and relationships, or
• computerized or administrative security measures.

The term also refers to various specific concepts in the lexicons of philosophers, lawyers, computer technologists, managers, journalists and members of other professions. That is besides other uses in everyday speech.

In short, used alone, “privacy” is confusing. If one wishes to communicate clearly, one must always accompany the word with a definition.

But since we have to use other words to be clearly understood, why not directly use these words from the beginning, and only them afterwards?

Too convenient a label, thus harmful

Another recollection. In 2002, I am eating with a journalist. I recently had published papers on topics such as the role of metaphors in communication between computer technologists and laypersons, on the pitfalls of computerized forms design, or on the adaptation of automated transactions to individual situations. Referring to them, he insists on how important were such articles “about privacy.” Oops? What? Was there a link?

We are witnessing here a more pernicious phenomenon: that of a label that ultimately hides the very thing it is attached to. The “privacy” label is spontaneously used when discussing about any whichever information handling concerning human beings. The recollected comment by the journalist is far from being an uncommon instance. In over a quarter of a century, I had to grapple with this form of labelling, time and again. Such labelling amounts to an automatic reflex. By definition, a reflex is an act that is somewhat independent of the exercise of thought. The label is used without thinking, as its application seems obvious, since we have been conditioned by the pervasive use of the word. Hence the risks that we will discuss below.

Incidentally, I noticed that the more persons were schooled or interested in information or informatics, the more likely they would have this mental reflex when it comes to handling of personal information. Conversely, the less persons were schooled or familiar with computers or information, the less likely they would use the “privacy” label and instead seek to describe in their own words the implications, effects or questions posed a given personal information handling. Fascinating isn’t?

A full explanation of this reflex would require many pages. Let us here mention two sources. First, the word “privacy” developed into a term of professional jargon that is now difficult (but not impossible) to avoid when discussing the handling of personal information. Even more so as, secondly, the word refers to central concepts of Western philosophical, political, economical and legal thinking and of the ways our societies are organized.

Words and consequences

From the 1960s, surface the first uses of computers and electronic communications by governments and businesses for the management of individuals’ records. In the 1970s, OECD countries tried to reassure their citizens by gradually adopting laws and other standards ensuring a minimum of transparency and good information management. These rules are often coined with phrases such as “protection of personal data” or “fair information practices” as for the numerous Fair Credit Reporting Acts across the USA.

Yet by some historical accident, the U.S. federal 1974 bill governing the handling of personal information by federal public agencies was entitled “Privacy Act“. Most statutes passed afterwards in the U.S. and Canada were also entitled Privacy Act or have included the term in their title. The result is that the word “privacy” has quickly become synonymous with the concept of “protection of personal data” among lawyers in the mid-1980s. The use spread subsequently into the jargon of information management and technology as well as the media (generating such weird expressions such as “privacy of information”, as if a mere record had any sort of intimacy or rights). From there, the same usage has also imposed itself in other professional fields.

Then again, through words, it is our very thought that is affected. Here, it is our attention that is being diverted from whole chunks of reality.

I faced this on my very first attempt at conducting a social assessment of information systems in 1982. In the last year of my law degree, I enrolled in an applied research course. The subject I chose to study was a new phenomenon: the simultaneous development of multiple tenants records systems and blacklists in Quebec and the Maritimes. I was spontaneously told that this subject-matter obviously involved legal application the right to privacy.

So I could have spent weeks in the library to immerse myself in how this principle of law applied to such information systems. But having grown up in a scientific culture and being son of a motor-vehicle maker, I am of the doubting Thomas type: I have to check by myself, have to actually see and touch the reality that I want to discuss. Therefore, I rather went in the fields to gather documents and interviews from information systems’ managers and tenants in Montreal, Quebec and Halifax. I discovered that some information systems were designed to intimidate tenants, so to discourage them to use the new remedies offered by a recent legislation (in order to render it ineffective). And that some other systems were used to cover acts of discrimination. Clearly enough that, only a few months after the publication of my study, the Quebec legislature declare as being prohibited discrimination, acts of exclusion in housing because of the use of a legal remedy or the fact that one have or will have a child. In short, if I had followed the apparently obvious “privacy” trail, I would have eluded the actual informational practices and tenants’ experiences as well as misdiagnose them.

Since then, every time I reviewed an information system it constantly appears that “privacy” plays the proverbial tree hiding the forest of informational and social realities.

System designers regularly fall into that same trap. One typical example among many: that of the Quebec health smartcard project. Its developers took so much attention and resources to fully respect “privacy” standards in designing the communication parts of the device. The resulting application did allowed patients to consent to every exchange of clinical information concerning them. But so much so that the device could operate only as long as patients were not… sick. Or did work or had other pressing obligations. The consent process working much like the one of a credit card, patients had to come in person to permit any exchange to and from each health professionals (for example, go back to the doctor’s office for the results of laboratory tests he prescribed to be finally transmitted to him; or the pharmacist to enable her to update or deliver medication). This zealous design flaw was indeed one of the reasons why the smartcard project was abandoned even after tens of millions were already spent. Again, the privacy tree hided the forest of patients’ actual clinical situations and needs.

How many times have I seen projects where the only legal and social assessment carried out was limited to verifying compliance with “privacy” standards (principles for fair information practices, actually). As a result, many otherwise apparent design flaws or system malfunctions that could affect the lives and rights of thousands of individuals stayed unnoticed for too long.

Any rational person would ask: how such blindness could still occur again and again?

Vague, but central concept

Again, I must simplify. First there is the inherent vagueness of the concept of “privacy“. It may suggest that if we respect the individual private life of a person, we thus respect this life in all its dimensions and expressions.

That is obviously false. Even if one retains only the single political and legal dimension of individual rights and freedoms, we must acknowledge that the “right to privacy” is only one among many others. In 1988, I did the exercise to identify which of the fundamental rights and freedoms recognized in international instruments could, in one way or another, be affected by some handling of personal information. I counted 140 of them. For example, rights to housing, to equality and to be able to bring a dispute before an independent court as in the case of the tenants’ blacklists mentioned above. Respect for “privacy” cannot alone protect or emancipate all that makes up human life.

Still, we cannot escape the fact that the concept of “privacy” refers to that great divide in the social world between public and private spheres, between private life and public life. A division in the heart of the legal, economic, political and social institutions of Western societies. Freedoms against regulations; State action against market mechanisms, left against right, public interest against private life: we stumble on this demarcation between the private and the public constantly.

A demarcation even more difficult to ignore following this great trauma that has been the experience of totalitarianism in the twentieth century, whether in fascist or communist form. Among other calamities, it abolished the privacy of individuals. Philosopher Hannah Arendt reminds that the Nazis even proclaimed that “the only person who still is a private individual in Germany is one who sleeps.” These regimes have used systematic surveillance and information gatherings on their citizens at scales unprecedented in history. For instance, it was discovered after the fall of the Berlin Wall in 1989 that around fifteen per cent of East Germans more or less regularly spied their fellow citizens on behalf of the Stasi, the Ministry of State Security. Information gathering on people not only allowed these regimes to subjugate whole populations, but also to decide and organize political exclusions, exiles and imprisonments, and even the murder of millions of humans.

It is thus understandable that the notion of “privacy“, already central to the organization of Western society, took a so great an importance and has been so strongly associated to personal information handling since.

Unfortunately, contrary to what the legal jargon might suggest, ensuring transparent and fair management of personal information is not to respect “privacy“, and even less to respect the individual in all its personal dimensions.

Embracing the whole forest beyond the tree

So, this is why it appears to me so crucial to avoid as much as possible to use the term “privacy“, although its undeniable historical and political weight. In fact, it should precisely be avoid in very deference to its political and historical importance. Thus, not as some linguistic mannerism, but by necessity. So our eyes and our thinking be able to embrace all dimensions, issues and questions that handling of personal information can raise nowadays, as it play increasingly significant roles in the lives of individuals, groups and of entire societies.

Practically, it amounts to nothing more than trying to describe the information items in question, their handling, their uses, their effects and the issues they raise in words that are as clear, concrete and appropriate as possible. Nothing more than to avoid a reflex in order to freely think about life in this age of information.

Now that this cautionary piece is done, I might refer to it often.

As for the report on Facebook, do not be surprised when I will note, for instance, that the Canadian legal standards of transparent and fair management of personal information here apply to all information regardless of whether it relates to an individual’s private life or public life.

Beyond Privacy • Facebook • Information: Multiple Roles • Personal Information • Privacy * • Privacy Commissioner of Canada • Social Assessment • Vie privée *