I share Mr. Strahilevitz's optimism regarding the potential for information technologies to reduce pernicious forms of discrimination. But it can't be denied that life in such an information-rich ecosystem would be nearly unrecognizable from our current cultural vantage point. People are already very skeptical of sharing information about themselves, although Mr. Strahilevitz makes a strong case that this would be better for them in the long run. So the question is, how can we make people more comfortable with opening up?
I worry that the way people are accustomed to defending their interests legally will be a main impediment to progress in this area. People who go to the legal system for some sort of redress usually do so because they think that some right has been violated, and although there is no right to privacy per se, this kind of thinking is very attractive to people.
If we're to make optimal use of the information revolution, we need to combat this idea that privacy is an inherent good. To this end, I'd like to sketch out some ways of thinking about privacy that I think are useful. Privacy is often seen as an end in itself, but instead should be construed as instrumental, and less or more important in given contexts. It matters a lot more, for example, to people when people in their communities are more likely to judge them for their actions: Gays and lesbians had a much greater interest in keeping their sexual orientation private before it became more socially acceptable. I think changing the context in which discrimination operates by cultivating a sense of inclusion among people would go a long way in this regard. But this will in turn require a new perspective on what makes humans valuable to each other.
A main source of pernicious thinking about privacy comes, I think, from the law's repeated insistence on treating people as individuals instead of as loci of human experiences embedded in social networks. In our modern information economy, a great many people earn their livelihoods from the products of their mental work; but the social element of mentation has long been vastly underplayed by the law. I worry that, as long as the law treats thoughts as emanating from individual intelligences, people will always clutch at their privacy in attempts to protect their livelihoods, thereby reducing the amount of information available for anti-discriminatory uses. Some anthropologists believe that, although Neanderthals had larger brain capacities than modern humans, the latter outcompeted the former because increased juvenilization made us more docile, and thus more willing to cooperate -- especially in intellectual endeavors. Although our brains have shrunk, the story goes, our social intelligence has grown because of our willingness to share information with each other. I think the law can help this evolutionary trend along, but to do so, it must be prepared to cast off Englightenment-era thinking about where thoughts come from, and what humans really are.
Comments