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Privacy in public and the contextual conditions of agency

Conceptual and Regulatory Challenges

Maria Brincker

As traditional public spaces rapidly change, the question arises whether pervasive surveillance is actually compatible with the nature of individual agency. It is known that new and largely unregulated technologies often both erode old de facto limitations of access, and erect new asymmetric barriers of knowledge, but how should we understand the harms of these new contexts? Based on our psychological and biological knowledge of social perception, embodiment and action choice it seems that these conditions present a toxic mix for our ability to gauge what I call our ‘relational privacy’, and thereby for our autonomous and purposeful action planning. If this functional analysis is right then boundless surveillance of our bodies and behaviors threatens rather than supports basic personal freedom and responsibility. However, in contrast to this analysis, the private-public dichotomy often implied in existing debates assumes that privacy concerns can be theorized without much attention to the functional and relational dynamics of our embodied agency. Building on, among others, Nissenbaum and Reidenberg’s work, this chapter seeks to counter this tendency. Two conclusions stand out: first, it seems that our action choices depend on the existence of limited contexts also in public, and thus actions in what we might term ‘unbounded contexts’ are typically performed through some kind of denial. Secondly, abundant availability of data traceable to persons cannot only undermine and coerce our choices, but even to a large extent completely bypass our current volitional action choices. Thus it seems that the contextual nature of our agency should be of utmost importance to political and legal privacy issues, and could usefully guide attempts to re-create more bounded public spaces.