Thomas Wells on the Right to Privacy

Most readers of my blog would welcome a more robust, less defeasible, Right to Privacy because, to be frank, they suffer greatly when their Mum goes through their sock drawer or else, in the case of my other regular, his cell-mate jacks off while watching him poo.

Can the Right to Privacy- which, sadly, has no effect where it really counts- be turned into a 'meta-right' foundational to everything else necessary to a Liberal Society?

Thomas. R. Wells, a young Professor of Ethics, seems to think so. He writes in 3 Quarks-

At the heart of liberalism is the idea of personal sovereignty. There is some domain of thought and feeling that is essentially private, for which we are not answerable to others because it is no one else’s proper business.

Perhaps Wells is making a distinction between an 'idea' and a concept. Otherwise, his claim is absurd.There can be no political concept of personal, as opposed to State, sovereignty because, by definition, sovereignty means immunity from answering to any juristic process save of its own accord or by reason of military defeat or some similar threat of utter ruin.

It is of the essence of liberalism that rights- including the right to privacy- confer only limited immunities with respect to specific actions which are themselves subject to some further test to do with competence or intentionality.  Liberalism does not mean never having to explain yourself, rather it means that you must explain yourself in terms which a reasonable man, exercising such care with regard to others as he would in pursuance of his own interests, might use to justify the external effects of his actions so as to free himself from blame or other punishment.

It can't be the case that-

Privacy is the meta-right that guarantees this right to think our way to our own decisions in our life, whether that be how to follow our god, or what to make of our sexual inclinations, or how to grieve for someone we have lost. It prevents others demanding justifications for our every thought and feeling by veiling them from their view. It is the right to be mysterious to others.

because if this were true tort law would collapse.  Both parties to the action could invoke this 'meta-right' to prevent their process of internal cogitation being made clear and so intentions and reasoning processes would remain opaque and mysterious. Tort law would disappear. Contract law would be severely vitiated. Instead, you would have a Hammurabi type tariff for damages sustained regardless of whether due care had been taken or whether the action being brought is in good faith or comes with 'clean hands'.

This would alter the economic environment in an unfavourable manner because the collective information set would shrink.

However, there is a more important reason why privacy can't be a meta-right viz. our human vulnerability to mental illness, addiction to mind altering substances, and- as we get older- to dementia. These may themselves be linked to increased risk of the spread of infectious diseases. Thus, purely from the perspective of Public Health, a 'meta-right' to privacy would be mischievous.

This is not to say that an ordinary right to privacy, conferring a limited immunity- as in Griswold- can't be useful at certain times. However, a superior alternative would involve the Legislature removing obnoxious laws and explicitly decriminalising certain types of behaviour.

It is ridiculous to suggest that my right to jerk off into my popcorn while alone in bed is somehow constitutive of the right to the right to believe in whichever God I choose or to grieve for whomsoever I have loved and lost.

There is a further point which Leo Strauss elucidated in Locke's thinking which matches with Ronald Coase's great insight at around the same time.

Essentially, privacy is an 'Exit' type right associated with denial of 'Entry' and thus limiting Externalities and their possible internalization. It is the opposite pole of Synoecism and Civic life. It may be anything at all, but not Liberal because it specifically forbids, within its domain, Pareto improvements on the basis of public discourse. Amartya Sen's 'impossibility of a Paretian Liberal'- like everything else he writes- demonstrates that Liberalism is about constantly pushing back the realm of the Private so that, by reason of incremental efficiency gains, Society does not succumb to centrifugal forces rendering the oikumene a 'Wilderness Zion' traversed by the folk-wanderings of tribes mysterious to each other.

The essence of Strauss's, or Niebhur's, or Coase's work is that there is no need for a Leviathan State to impose a centre of gravity. Externalities are better internalised not by 'Social Contracts' but 'incomplete' ones informed by equally accessible Aumann signals such that correlated equilibria prevail or, by the folk theorem of repeated games, incentive compatible mechanisms evolve so as to give effect to the 'Revelation Principle'.

There is no need for an Alexander to come cut the Gordian knot and establish 'homonoia', The son of Gordius was Midas and simply by establishing weights and measures for grain and gold and so on, his rule becomes also a Midrashic illustration of  how 'midas hadin' may in fact be 'midas harachamim'- God's justice may also be mercy because every akrebia necessitates its own accommodating oikonomia- else what is Divine were a secret concerning but an ass's ears.

Prof. Wells says

' privacy is the right to choose how we are known and by whom'

though, clearly, the thing is impossible. I might spend hours on Skype to you moaning about the jizz in my popcorn- which was like totally an accident dude, it's just that P.Chidambaran looked so freakin' hot at the NDTV conclave- but you have long ago left your desk to go about your business. Meanwhile, it is your wife- who never liked me- who is listening to this and who records the thing and uploads it to You Tube. Anyway the thing goes viral and so I assert, not my right to privacy, but to publicity, so as to claim the ad revenue it generates.

The right to privacy is a mark of a liberal society, one in which individuals matter for ourselves and other things matter because they matter to us. It contrasts with totalitarian regimes in which every individual thought and action has a political implication for which the government may hold you answerable. And to communitarian regimes in which individuals must answer for everything to the social group. In both of these regimes, privacy means secrets and secrets mean disloyalty.

The problem with this view is that it is so recent. Classical Liberalism recognised no such right. Indeed, the well established previous rights re the inviolability of the home or the confidentiality of correspondence was being more intensively violated during the period when, as an ineffectual anti-dote, the right to privacy was being touted, or adopted, as a panacea.

From our vantage point we can clearly see that this particular availability cascade has not been associated with any great advance in civil liberties. Why? It confers only very limited immunities which however have been rendered more, not less, defeasible by other developments in the law which have been necessitated by a global shift from the primary and secondary sectors, to tertiary, high value adding, services which need to be policed in a more intrusive way for both fiscal reasons as well as to achieve better contract enforcement in line with the theory of incomplete contracts.

We have now reached a point where anything and everything we say or write can be used against us- not, it is true, in criminal law, but under civil law whose economic penalties can be more devastating.

Is there some great advantage to Society from this apocalypse of Privacy? No, Economic theory predicts that collective decision making worsens- it moves from a correlated equilibrium to a adversarial Nash equilibrium, which may involve stasis- if deliberations and proceedings are transparent because then incessant 'commitment' signalling behaviour destroys every possible Mechanism for the Revelation Principle.

This is quite a recent finding- one Wells may be unaware of. However what he says next suggests that he is either stupid or merely surfing an academic availability cascade while marking time towards tenure.

The right to privacy evolved slowly in a virtuous entanglement of ideas and social changes in western Europe.

WTF?! East Africa, maybe, over the course of hundreds of thousands of years. Western Europe- no way. I am old enough to remember Salazar's Portugal or Franco's Spain and was alive when the Brits decriminalised homosexuality. This is not to say that a common law right to privacy did not exist in Europe as it did everywhere else, but it was more curtailed by legislative action in Western Europe- more particularly those parts of it which industrialised rapidly- than in largely Hindu India or Hanafi Turkey- which btw explicitly decriminalised homosexuality in 1858- round about the time the Brits were criminalising it in India.

The reformation established the fact of religious diversity.

Nonsense! It established the fact that sect must war against sect till either one side prevail or the whole country be reduced to such ruin that some Westphalia type pragmatic modus vivendi gains legitimacy.
Even in Britain, it wasn't till about 1770 that penal laws against Catholics were abolished or curtailed and it was another 50 years before their more substantial disabilites were removed.

The enlightenment philosophers shattered the idea that individuals could be held accountable for their religious convictions as if they were moral choices [previously].

Nonsense! If the Church no longer burnt heretics, the guillotines were nevertheless kept busy with different brands of Deists or Atheists or pure and simple nutjobs clamouring to chop each others heads off.

Religion became the core of the new idea of individual sovereignty, a small space in which whatever you thought was no one else’s rightful concern.

This has never been the case. Religion and A.A and group therapy and so on- the latter two being sometimes judicially mandated- involve opening up this small space to such daylight as is the best disinfectant.

Then shifts in the economy sent millions of people from the land to the cities, where they exchanged the continuous mutual surveillance and policing of village life for the relative anonymity of city life. People had a new freedom to decide for themselves how to live, but also to decide with whom to confide those intimate choices.

Anomie is not considered a good thing. It is associated with totalitarian movements and the demand for more not less surveillance. In Balzac's novels, it appears that only by appointing an arch-criminal the Chief of Detectives can Society or the individual sleep peacefully at night. The policies of Fouche, as much as those of Talleyrand, represents the continuing legacy of the French Revolution. However, such surveillance might have quite limited ends and scarcely impact on privacy. Japan's policing model was not intrusive though neighbourhood based. What really matters is what can be made public- i.e. norms regarding what it is seemly to reveal about another. Here, France scores higher than England-at least when it comes the bedroom.

Currently, China and India and other Developing countries are witnessing massive urbanisation. However, this does not appear to be correlated with Democracy or Liberalism at all. If there was such a tradition previously, it may continue. If not, it does not suddenly appear.

Why is Wells writing this shite? Is he simply ignorant, or merely stupid?

The answer, I suppose, is that he wants to jump on a digital privacy bandwagon for a careerist reason.

Thus, he writes-

To be known by a friend is a blessing. To be known by an adversary is to be vulnerable to attack. We can be deceived and manipulated by those able to crunch the data and figure out which buttons to press. The system was designed to help companies sell more junk by showing us the adverts we would be most likely to fall for, and to tailor the prices we see so that more of the gains of each transaction stay with the seller. These techniques and the underlying advertising infrastructure turned out to be highly useful to political operators in the Brexit and Trump-Clinton elections.

Wells is describing 'price and service provision' discrimination which has always existed. However we are genetically endowed with sufficient plasticity to baffle predators and parasites. There is no reason to worry so long as the channel of information is not monopolised. But that's why we have Competition policy.

We can be individually targeted with lies or disinformation we are most likely to believe due to our biases and desires.

So what? Noise cancels itself out. So long as there is an effective Competition policy, nothing very sinister will transpire. In any case, we'll be too busy watching porn to be influenced by any pop-up or click-bait.

Algorithms track what does and doesn’t work and automatically revise and improve the most effective lies. For example, a racist politician can pay for a targeted advertising campaign.

So can a non-racist. Competition is all that matters. Not some worthless halfwit of a psilosopher talking shite.

It sends you messages about the one policy you are likely to agree with, and when you click on the link it takes you to a version of their website specifically tailored to satisfy your concerns. Or, if that political campaign’s big data analysis determines that you are committed to voting for the non-racist candidate, they can reduce your interest in voting by bombarding you with false opinion polls that show your candidate has a huge lead and your vote isn’t necessary. Politicians can reduce the value of votes cast against them by gerrymandering – drawing district boundaries so opposition voters are usually a minority. In America, the big data sets and mapping systems are now so precise that politicians can gerrymander districts block by block.

This was  always the case. Anyway, we can see with our own eyes that machine politicians in South Punjab are better at this sort of thing than any fucking Cambridge Analytica. Speaking of gerrymandering- it is the bosses in Sindh who take the cake.

Wells has made a great discovery- viz. politicians tell lies and that those lies change depending on whom they are addressing.

  Unfortunately our politicians have already discovered that lies are an extremely effective means of persuasion and motivation when they have the chance to talk to us one at a time rather than submit to the public scrutiny of a public broadcast.

I recall getting emails which appeared to be from Obama addressing me by my first name and speaking as from long familiarity or friendship. I immediately marked thing as spam. The fucker didn't come to my birthday party though I specifically mentioned that he should bring the cake and also a case of Bacardi and some candles and a jumbo bottle of coke and also like arrange for some hot interns to... well, you know.

We are moving from the ideal of democracy as government by discussion to a form of retail politics modeled on fraudulent affiliate marketing.

Who is moving? Only Wells himself. No doubt he has received a personalised message from ISIS asking him to first grow his beard out a bit and then kindly go behead some infidels coz we know your grocery shopping list, dude, so- by your argument- we now control your mind. Happy Jihad motherfucker!