Privacy, Shame and the Anxieties of Identity

Abstract

Many privacy advocates, and scholars, seek to liberate privacy from shame. We need to understand that privacy norms do more than insulate individuals from the exposure of shameful secrets and intimate information, the argument goes, in order to deal with contemporary privacy issues that concern the collection of information that is often not sensitive or intimate and may even be publicly available. This essay argues that privacy does not need to be liberated from shame — to the contrary, it is shame that can liberate privacy. A proper understanding of shame reveals that it involves a complex form of self-consciousness — how you feel about how others view you; it is triggered by a disjunct between how you would like others to see you and the consciousness that they do not see you in this way. Privacy norms can insulate us from shame because they protect our self-presentation from the disruptions that can cause us to feel shame. Accounts of privacy go wrong when they do not understand this idea of identity that is at stake in privacy norms. By relying upon different ideas of identity, such as self-revelation or self-determination, both control-based and limited-access accounts of privacy misunderstand the social dimensions of identity and end up with an impoverished account of privacy norms. By ignoring the centrality of identity, “contextual” accounts of privacy lose analytic rigour by running together a broad set of interests and norms under the category of “privacy.” A focus on the constitutive relation between privacy and identity can also show why the idea that privacy should be protected through legal rights is misplaced. Justifications for legal rights rely upon ideas of autonomy and harm but privacy’s focus on the conditions of self-presentation sound in an altogether different register. This essay argues that legal rights such as the tort of invasion of privacy lie, at best, on the periphery of the legal protection of privacy and that the emerging international standards of Fair Information Practices provide a better framework. The best way to understand this framework is not through the language of rights but through a set of alternative ideas about the role of law in enabling and empowering individuals to act within a context of settled expectations necessary for the production of identity and agency. The role of privacy law is not simply to protect identity but in fact to help produce it.