Privacy in Public: A Democratic Defense

Abstract

Traditional arguments for privacy in public suggest that intentionally public activities, such as political speech, do not deserve privacy protection. In this article, I develop a new argument for the view that surveillance of intentionally public activities should be limited to protect the specific good that this context provides, namely democratic legitimacy. Combining insights from Helen Nissenbaum’s contextualism and Jürgen Habermas’s theory of the public sphere, I argue that strategic surveillance of the public sphere can undermine the capacity of citizens to freely deliberate in public and therefore conflicts with democratic self-determination.

Government Surveillance, Privacy, and Legitimacy

“…35 Though see Pilon and Epstein (2013). 36 For a different legitimacy-centered criticism of surveillance, inspired by Habermasian discourse theory, refer to Stahl (2020).…”

“…See, e.g.,Brownlee (2016) andScheuermann (2014).3 Critical discussions of government surveillance includeGoold (2009);Henschke (2017, ch. 9);Hoye and Monaghan (2018);Lever (2008);Nissenbaum (1998);Roberts (2015);Solove (2007);Smith (2020);Stahl (2016Stahl ( , 2020; and I Taylor (2017)…”

Inferences and the Right to Privacy

“…The second view holds that the right to privacy at least sometimes extents to information that the right-holder has intentionally made public. For discussion of this view, seeNissenbaum 1998Nissenbaum , 2009Stahl 2020;Timan et al 2017;Roessler 2016;Newell et al 2018;Moreham 2006;Reidenberg 2014;Rumbold & Wilson 2019;and Margulis 2003. For the purpose of this paper, I need not commit to a particular view on what is required to waive one's right to privacy. Regardless of what the correct view is, the Inference Principle implies that if an individual holds some information in accordance with this view, then the individual may infer any information from it without violating anyone's right to privacy.…”