The Encroachment of the Public

By: Dr. Sam Vaknin

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As Aristotle and John Stuart Mill observed, the private sphere sets limits, both normative and empirical, to the rights, powers, and obligations of others. The myriad forms of undue invasion of the private sphere - such as rape, burglary, or eavesdropping - are all crimes. Even the state - this monopolist of legal violence - respects these boundaries. When it fails to honor the distinction between public and private - when it is authoritarian or totalitarian - it loses its legitimacy.

Alas, this vital separation of realms is eroding fast.

In theory, private life is insulated and shielded from social pressures, the ambit of norms and laws, and even the strictures of public morality. Reality, though, is different. The encroachment of the public is inexorable and, probably, irreversible. The individual is forced to share, consent to, or merely obey a panoply of laws, norms, and regulations not only in his or her relationships with others - but also when solitary.

Failure to comply - and to be seen to be conforming - leads to dire consequences. In a morbid twist, public morality is now synonymous with social orthodoxy, political authority, and the exercise of police powers. The quiddity, remit, and attendant rights of the private sphere are now determined publicly, by the state.

In the modern world , privacy - the freedom to withhold or divulge information - and autonomy - the liberty to act in certain ways when not in public - are illusory in that their scope and essence are ever-shifting, reversible, and culture-dependent. They both are perceived as public concessions - not as the inalienable (though, perhaps, as Judith Jarvis Thomson observes, derivative) rights that they are.

The trend from non-intrusiveness to wholesale invasiveness is clear:

Only two hundred years ago, the legal regulation of economic relations between consenting adults - a quintessentially private matter - would have been unthinkable and bitterly resisted. Only a century ago, no bureaucrat would have dared intervene in domestic affairs. A Man's home was, indeed, his castle.

Nowadays, the right - let alone dwindling technological ability - to maintain a private sphere is multiply contested and challenged. Feminists, such as Catharine MacKinnon, regard it as a patriarchal stratagem to perpetuate abusive male domination. Conservatives blame it for mounting crime and terrorism. Sociologists - and the Church - worry about social atomization and alienation.

Consequently, today, both one's business and one's family are open books to the authorities, the media, community groups, non-governmental organizations, and assorted busybodies.

Which leads us back to privacy, the topic of this essay. It is often confused with autonomy. The private sphere comprises both. Yet, the former  has little to do with the latter . Even the acute minds of the Supreme Court of the United States keep getting it wrong.

In 1890, Justice Louise Brandeis (writing with Samuel Warren) correctly summed up privacy rights as "the right to be left alone" - that is, the right to control information about oneself.

But, nearly a century later, in 1973, in the celebrated case of Roe vs. Wade, the U.S. Supreme Court, mixing up privacy and autonomy, found some state regulation of abortion to be in violation of a woman's constitutional right of privacy, implicit in the liberty guarantee of the Due Process Clause of the Fourteenth Amendment.

But if unrelated to autonomy - what is privacy all about?

As Julie Inness and many others note, privacy - the exclusive access to information - is tightly linked to intimacy. The more intimate the act - excretion, ill-health, and sex come to mind - the more closely we safeguard its secrets. By keeping back such data, we show consideration for the sensitivities of other people and we enhance our own uniqueness and the special nature of our close relationships.

Privacy is also inextricably linked to personal safety. Withholding information makes us less vulnerable to abuse and exploitation. Our privileged access to some data guarantees our wellbeing, longevity, status, future, and the welfare of our family and community. Just consider the consequences of giving potentially unscrupulous others access to our bank accounts, credit card numbers, PIN codes, medical records, industrial and military secrets, or investment portfolios.

Last, but by no way least, the successful defense of one's privacy sustains one's self-esteem - or what Brandeis and Warren called "inviolate personality". The invasion of privacy provokes an upwelling of shame and indignation and feelings of indignity, violation, helplessness, a diminished sense of self-worth, and the triggering of a host of primitive defense mechanisms. Intrusion upon one's private sphere is, as Edward J. Bloustein observes, traumatic.

Incredibly, modern technology has conspired to do just that. Reality TV shows, caller ID, electronic monitoring, computer viruses (especially worms and Trojans), elaborate databases, marketing profiles, Global Positioning System (GPS)-enabled cell phones, wireless networks, smart cards - are all intrusive and counter-privacy.

Add social policies and trends to the mixture - police profiling, mandatory drug-testing, workplace keylogging, the nanny (welfare) state, traffic surveillance, biometric screening, electronic bracelets  - and the long-heralded demise of privacy is no longer mere scaremongering.

As privacy fades - so do intimacy, personal safety, and self-esteem (mental health) and with them social cohesion. The ills of anomic modernity - alienation, violence, and crime, to mention but three - are, therefore, directly attributable to diminishing privacy. This is the irony: that privacy is increasingly breached in the name of added security (counter-terrorism or crime busting). We seem to be undermining our societies in order to make them safer.

Meta vs. EU: Battle of the Gaslighters (Brussels Morning)


The European Data Protection Board (EDPB) has just overruled a decision by the Irish Data Protection Commission (DPC) and announced that Meta, owner of Facebook, Instagram, and WhatsApp is fined 1.2 billion euros over violations of the EU’s General Data Protection Regulation (GDPR), now celebrating its fifth anniversary.


Since May 2018, regulators have possessed the right to fine a company up to 4% of its annual turnover for serious violations.


Many hi-tech behemoths – Meta and Apple included - based their operations in tax-friendly Ireland. Little did they know that its ferocious privacy watchdog would wipe out any tax savings they might have gained with this tax sheltering move.


Meta did not take steps to mitigate, let alone eliminate “the risks to the fundamental rights and freedoms” of its users, explicated the Irish Data Protection Commission, though Meta acted in good faith and, therefore, did not deserve to be fined.


Meta was also given 5 months to “suspend any future transfer of personal data to the US” and 6 months to terminate “the unlawful processing, including storage, in the US” of users’s data.


Meta threatened in the past to withdraw from the EU altogether, but is unlikely to do so as it awaits the implementation of a new agreement on data flows between its two main markets.


A similar “Privacy Shield” pact, though, was annulled in 2020 by the Court of Justice of the European Union (CJEU). The tribunal left intact data transfers founded on standard contractual clauses (SCCs), but even this vestige was struck down by the Irish authority.


Still, EU regulators produced an alternative in December 2022 (the Data Privacy Framework or DPF) and Joe Biden reciprocated by issuing an executive order intended to reassure the EU and its denizens of safeguards in place to maintain the integrity of transferred data.


Alas, this morality play has no saints in it. Both parties are gaslighting each and other – and the public at large.


Meta sports a stubbornly abysmal and scandal-ridden – almost contemptuous - record when it comes to the protection of the privacy of its users’s data.


The EU, on the other hand, is opaque, indecisive, and capricious in its trans-Atlantic data transfer policies which have been mired in a perpetual state of regulatory uncertainty.


The solution is a bilateral body. The EU and the USA should set up an independent organization to take care of the storage of users’s data and its disposal by all the technology companies in strict accordance with all relevant laws and regulations on both sides of the pond.


Chinese walls can guarantee commercial interests the same way accounts are handled in investment banks and brokerage firms.


But there is a much more fundamental problem: a digital philosophy divide between the USA and the EU and not only regarding access to information of all kinds.


The USA regards users’s data as commercial raw material and as evidence in both civil and criminal cases. Data, therefore, belong to enterprises, with access granted to the state as needed.


In contrast, the EU considers data to be the property of individuals to dispense with as they please.


Yet, the EU’s position is somewhat disingenuous and untenable. Users do explicitly trade their personal information for the free use of a variety of services online. Law enforcement agencies should be able to access users’s data subject to court orders in any jurisdiction.


To hamper the free flow of data of any kind is to undermine the foundations of and fragment the internet and other digital utilities and networks. It is too high a cost.


Data privacy is an elusive and illusory mirage and the GDPR is a pretentious piece of political theatre with little impact in the real world. Idealism and activism have their place, but not when they are rendered grandiose, destructive, and self-delusional.


Moreover: the EDPB’s ability to overrule a local regulator with intimate knowledge of affairs is worrying. Meta was not invited to appear in what amounted to an appeals process. It fell victim to an internal EU turf war, it would seem.


Meta was also singled out of thousands of other technology companies with identical data transfer practices. This oversight smacks of a political PR stunt, not justice. It is especially egregious when data transfers to the likes of China continue unabated and largely unchallenged.


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