Privacy is one of the fundamental aspects of liberty that constitutionalism has long recognised and protected. In response, the state and state-adjacent advocates have run an ingenious campaign of subtly transforming privacy’s concern from liberty against state abuse, to one of convenience against commercial advertising.
The result is that state incursions into privacy – if they receive any attention at all nowadays compared to the 2000s – are treated as secondary to the ‘real’ concern of the right to privacy: those pesky telemarketers and annoying Facebook ads!
Back in the real world, on 24 August 2024, Pavel Durov, founder of the instant messaging platform Telegram, was arrested in Paris, France. The twelve charges against him ultimately come down to Durov not ‘moderating’ user content on Telegram, and in fact encrypting the content so that it could be shrouded from government view. This, it is said, allows criminal uses of the app, and he is therefore ‘complicit’ in those crimes. (In the same way manufacturers of pens and paper are complicit in the crimes of those who use their products to plan their misdeeds.)
On the home front, in May 2023, South Africa’s Minister of Justice exempted the South African Police Service from complying with various legal limitations on its power to engage in surveillance.
One almost hesitates to condemn the French or South African governments for these – among many other – flagrant attacks on privacy, given the usual chorus of law-and-order zealots inevitably asking aloud, ‘Why are you concerned? Do you have something to hide? If you don’t, then you have nothing to fear!’
As Kai Iyer argues, however, the appropriate response to ‘if you have nothing to hide, you have nothing to fear’ is to say, ‘I need privacy, not because my actions are questionable, but because your judgment and intentions are.’
Reading that ‘RICA is broken’ – RICA is South Africa’s law that enables the authorities to monitor our cellular communications – therefore gives those of us who value privacy some comfort. While we should be worried when the authorities are having trouble tracking those who have committed real crimes, the modern state’s abuse of this power means that any trouble they are having is a good thing.
But the elation that South Africans are still capable of communicating on ‘unregistered’ (the horror) SIM cards, has nothing to do with a favourable disposition towards criminality. It has everything to do with how privacy has subtly been redefined to allow all manner of government intrusion into our private affairs while problematising corporate marketing strategies.
Indeed, the ‘nothing to hide, nothing to fear’ argument flips the right to privacy on its head and saps it of its core usefulness.
What is privacy?
The consequence is that ‘privacy’ is no longer a right that protects people from having their private affairs scrutinised and having decisions that are often deleterious to their interests taken on the basis of such scrutiny, but rather a tool used mostly to complain about commercial enterprises engaging in targeted advertising of their products and services.
The right to privacy is not about ‘hiding’ but about obscuring those things from government view that government as a matter of right and wrong (rather than as a matter of law) has no business perceiving.
In its essence, privacy is the right to be left alone when one wants to be left alone. Privacy is the ability to retreat into an intimate space where only oneself and those invited are welcome.
Privacy is the opposite of public. ‘Privacy’, then, puts the ‘private’ in private property, private sphere, and private sector.
Privacy is about commercial advertising!
In an insightful article on another topic, Ivo Vegter alerted me to a piece by Adrian Wooldridge, where the latter writes of so-called ‘information capitalism’:
‘Today’s information giants are, above all, advertising companies that persuade us to give up our most intimate secrets in return for various conveniences and then sell those secrets (duly anonymised) to whoever will pay for them.’
One cannot help but roll one’s eyes at these sentiments, because those who express them almost never question the state’s supposedly sovereign right to discover ‘our most intimate secrets’, and then not merely ‘manipulate’ us with somehow immoral advertising, but actually throw us in cages.
DamiLee, an insightful YouTube channel about architecture that I subscribe to, also recently followed this trend among young social commentators whose political consciousness came long after the Stasi was abolished and the discourse around the USA PATRIOT Act dissipated.
Dystopia and tyranny are identified with the private sector, while government is implicitly designated as a hippie-esque institution of kumbaya harmony, peace, and inclusivity. It is ‘commercial interests’ that threaten our ‘public spaces’, and it is the private sector that threatens our privacy, primarily through its advertising.
In one segment, DamiLee reads highlights from a real estate developer’s political ‘manifesto’ in a play on George Orwell. The irony is lost on DamiLee that the types of things she characterises as tyrannical – the privatisation of streets and the abolition of rent controls, for example – are exactly the kinds of things that limit the potential of tyranny.
It is also almost never the private sector that displays the faces of CEOs on posters that announce nefarious new programmes that will undermine the interests of the public. It is, in nine out of ten cases, the government that does so.
The real threat
Privacy discourse revolves around advertising and the collection and selling of data for reasons of profit. Ultimately, it has become about inconvenience. Somehow, government is regarded as a neutral protector of privacy (against the commercial baddies) rather than itself being the actual threat against which we must state-proof our affairs.
Why does the right to privacy not arise, for example, when government adopts legislation requiring companies to disclose the racial identities of their directors? This is not regarded as a violation of privacy. But when Meagan agrees to hand over some of her personal information by using TikTok, her freedom has apparently been undermined.
The state’s ostensible sovereign right to know what the racial identities are of company directors, or what firearms I have in my safe, is the exact same ‘right’ that the Ugandan state has to know what two consenting men are doing in a bedroom – in substance, there is no difference. Both exercises of this supposed sovereign right are wrong and do irreparable harm to privacy.
But what is quite unlike these clear invasions of privacy is TikTok annoying me again with ads or an Indian telemarketer calling us incessantly. We can solve both problems, at the very least, by switching off our phones or computers, and installing an adblocker or an app like TrueCaller.
These options are not available when we face government. And hence the right to privacy.
In fact, people who smoke in their own houses could technically also be ‘criminals’ if the new Tobacco Bill becomes law. If you work from home and smoke in your house, your neighbour might rat you out to South Africa’s health gestapo. ‘It’s the law!’ they will say, of course.
If you have nothing to hide, you have nothing to fear, after all.
The best companies can do is annoy us. Companies have no capacity to – and most importantly, no desire to – infringe on our liberties. They want us to give them our money, and they will annoy us to that end.
Government, on the other hand, almost always is only interested in infringing on liberty. It also wants our money, but crucially, it does not just annoy us for it – it either gets the money, or it throws us in cages or kills us.
Nothing to hide? Nothing to fear!
A little more than a century ago, simply being in possession of a long gun would not have caused anyone to look twice.
Or, if you were caught in possession of opium in Cape Town in 1750, nobody – least of all the state – would have cared.
And yet, today, ‘simply’ possessing a gun is a crime (one may only do so after going through a complex process), and possession of opium could also land you in jail. The needle of what qualifies as ‘criminal’ is constantly shifting, and this is inherently a problem.
There was a point, in other words, where you had ‘nothing to hide’ by possessing a long gun or using opium.
One evening, however, a group of overpaid, underworked politicians signed a piece of paper, and suddenly you did have ‘something to fear’.
The right to privacy is meant, precisely, to protect us against legal arbitrariness of this nature, and not against bothersome corporate marketing.
You should always assume that something you possess or may legally do today, can in a virtual instant become illegal tomorrow because political winds have shifted. Always assume you will have something to hide, and do not for a moment feel ashamed of this fact.
This is why society should rally around tools like Telegram, encryption software. We should state-proof not only our digital interests but also our physical interests wherever possible. More than that, we need to rediscover the core meaning of privacy and begin to insist upon it.
[Photo: by Steve Buissinne from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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