3/24/2019 Privacy and Data: A Discussion with Anita Allen

“Data Sciences and Society” Reading Group

Discussion notes by Canay Özden-Schilling, Naveeda Khan, & Veena Das:

This meeting marked the first time our reading group hosted a guest presenter, a practice we’ll continue at our next meetings this semester. We were fortunate to be joined by Prof. Anita Allen from the University of Pennsylvania, a lawyer and philosopher of law with a longstanding interest in and distinguished contribution to the theory of privacy. For the meeting, our 21 attendees read recent articles by Allen herself, Ian Kerr, and Helen Nissenbaum—all from a recent journal issue exploring the changing meanings of privacy in our data-laden moment.

In her opening discussion, Prof. Allen laid out a recent history of privacy law along with the evolution of her own thinking on the matter. Prof. Allen’s interest is in a comprehensive theory of privacy goes back to the 1980s, a pre-Internet moment when the chief privacy concerns centered on reproductive health, the right to die, and LGBTQ rights. In Uneasy Access, her first book and notably the first book-length treatment of privacy, Allen championed privacy as a women’s right—a contentious notion for feminists to whom privacy seemed to be a dangerous vehicle for the cover-up of oppression. Regardless Allen has held on to the notion that privacy as an inalienable part of freedom and is impassioned in her belief that liberal states can never allow its neglect or sacrifice.

By the same coin, Allen also argues that people in liberal states have the responsibility to protect their own privacy. This notion, as Allen pointed out, has been endlessly complicated by the emergence of the Internet and the rampant voluntary sharing of data online. In our Big Data moment, of course, the individual protection of one’s own data no longer seems straightforward. These considerations helped Allen’s thinking evolve away from her original conception of privacy in Uneasy Access, which focused on limited access to individuals’ information, towards a more positive theory that incorporates the rights to measures that will secure individuals’ privacy, to be secured by governments. We opened the floor for discussion on this note.

We began our general discussion with the article we read by Allen, which takes up a 2017 decision by India’s Supreme Court (Justice K.S. Puttaswamy vs Union of India) on the  controversial biometric identification system, Aadhaar, but the constitutional question before the court was if privacy was a constitutionally protected right given that the Constituent of India does not specifically mention privacy as a right. The Court ruled that privacy was a fundamental right derivable from the constitution but in its application to Adhaar it did not strike off the controversial Adhaar bill though it struck off some of the government notifications on the necessity to produce Aadhar care for receiving services. In the course of the judgment The Court cited a number of North American and European philosophers of privacy including Allen herself. In the article, Allen discusses the influence that philosophers might have on the evolution of privacy’s definitions. Some of our participants pointed to the grounding of the decision in jurisprudential thinking in India (despite citations of Allen and other legal philosophers) since the court derived the constitutional right to privacy from an expanded notion of life. It was pointed out that this expanded notion carried particular relevance in India since the Bhagwati decision  during the National Emergency had held the right to life as a gift of the state and not as a natural right. This prompted Allen to specify her interest in the case as that of an American scholar, to whom this decision is a hopeful illustration of what longstanding liberal ideas can accomplish today and how old privacy theory can be repurposed to address our data-laden problems. Allen expressed her satisfaction for the Court’s recognition of poor people’s rights to privacy, but lamented the missed opportunity of defining privacy as a positive social right. It still felt to certain participants that this was a missed opportunity on Allen’s part to acknowledge that privacy is not simply an import from the Western liberal tradition but may truck with other adjoining notions—such as those of propriety, appropriateness of boundaries—within other traditions as well as a result of years of activism against the harassment by the state that the rules for use of Aadhar had entailed. The need to think not in terms of a concept and its widening field of application but lateral relations among concepts to enrich thinking and analyzing of our present was also an important consideration.

Following the interests of many in the group, our discussion then moved generally towards privacy in the biomedical and clinical fields. Allen took a question on the complications of drawing the boundaries of privacy in genomics research where one’s volunteered genetic data also pertain to those of family members. Other participants addressed the hypothesis from Ian Kerr’s article that human cognition is not a sine qua non to privacy violation—that an AI cognizer can also violate privacy. One of our medical practitioner participants argued against this hypothesis by pointing out that the bots that determine a patient’s need for vaccinations, for instance, have been privacy-enhancing. Other participants countered this point by questioning how capable or willing institutions have historically been to limit AI’s applications to their intended uses. Allen offered that in the medical field, as elsewhere, the legal definitions of privacy will have to compete with practitioners’ cultural definitions, which might not always neatly map onto institutional expectations—that people always find a way to get around privacy even though they are aware of its importance and the legal protections afforded to it.  She is curious why people work around privacy, what compels them, and called on anthropologists to offer perspectives on this tendency with different case studies. Our participants also pointed out that this context-specific nature of privacy echoed the work of Helen Nissenbaum, who, in the third article we read for the event, developed the notion of privacy’s “contextual integrity”—that privacy can only ever be grasped with reference to the specifics of the “sender, recipient, subject, information type, and transmission principle.”

We circled back to what can be accomplished in the legal field to address global privacy concerns. Allen gave vivid examples from recent bioethical panels she has participated in in the U.S. and the E.U. to highlight how philosophers can help shape this debate. The challenge, she pointed out, is not to pass just any privacy law—the U.S., for instance, has more privacy laws in place than anywhere else. The challenge is to get an adequate law enacted in a timely fashion given the fast evolution of the technologies we are trying to monitor. We thank Prof. Allen for sharing with us her globally attuned perspective on the intersection of law, privacy, and data.

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