'I'll See': How Surveillance Undermines Privacy by Eroding Trust

32 Santa Clara High Technology Law Journal 221 (2016)

52 Pages Posted: 15 Mar 2016 Last revised: 20 Feb 2018

See all articles by Robert H. Sloan

Robert H. Sloan

University of Illinois at Chicago

Richard Warner

Chicago-Kent College of Law

Date Written: March 14, 2016

Abstract

Neil Richards and Woodrow Hartzog argue persuasively that “modern privacy law is incomplete because from its inception it has failed to account for the importance of trust.” We address the open question of how privacy law should “account for the importance of trust.” We combine the focus on trust with another theme: the dehumanizing effect of surveillance. As the security expert Bruce Schneier notes, “psychologists, sociologists, philosophers, novelists, and technologists have all written about the effects of constant surveillance . . . It threatens our very selves as individuals. It’s a dehumanizing tactic employed in prisons and detention camps.” We address the open question of why (and under what conditions) it does so. The link between the loss of trust and the dehumanizing effects of surveillance not only makes a compelling case that privacy law should preserve trust and prevent dehumanization, but also suggests how it can do so.

The “I’ll See” in the title is a reference to our guiding metaphor, Shakespeare’s Othello. When Iago manipulates Othello into fearing that Desdemona may be unfaithful, Othello declares:

I'll see before I doubt; when I doubt, prove; And on the proof, there is no more but this, —Away at once with love or jealousy!

Othello’s plan is to suspend judgment until he collects enough data to “see” whether Desdemona is faithful. However, his “I’ll see” destroys his trust in Desdemona with disastrous consequences. Contemporary surveillance has the same “I’ll see” plan. We argue that its gaze also undermines trust and poses a serious threat to the self.

A key claim is that trust rests on what game theorists, philosophers, and computer scientists call common knowledge. Something is common knowledge in a group if members know it, know they all know it, know they all know they all know it, and so on. We contend that contemporary surveillance undermines common knowledge and thereby erodes trust. One countermeasure is obvious: restrict the reach and power of the surveillance. Privacy advocates and policy makers have repeatedly recommended and pursued that strategy. There is, however, a second and equally important countermeasure they have ignored: preserve and restore common knowledge. The threat surveillance poses to the self makes preserving makes that second countermeasure both essential and urgent.

Keywords: privacy, privacy in public, trust, surveillance, norms, informational norms, coordination norms, coordination, self-realization, self, identity

JEL Classification: C70, C71, D81, K39

Suggested Citation

Sloan, Robert H. and Warner, Richard, 'I'll See': How Surveillance Undermines Privacy by Eroding Trust (March 14, 2016). 32 Santa Clara High Technology Law Journal 221 (2016), Available at SSRN: https://ssrn.com/abstract=2747435 or http://dx.doi.org/10.2139/ssrn.2747435

Robert H. Sloan (Contact Author)

University of Illinois at Chicago ( email )

1200 W Harrison St
Chicago, IL 60607
United States

Richard Warner

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

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