scholars such as Colin Bennett to articulate a collective conception of privacy. In any event, he has argued, privacy has become a matter of public policy and has been recognised for its societal value for several decades now.55 Even David Lyon, previously a privacy sceptic, has come to recognise the need for a common uniting concept in the struggle against surveillance, and privacy provides just such a concept.56 If privacy is not reinvigorated, then societies could see surveillance grow relatively unchecked in spite of the right to privacy’s existence, as surveillance advocates would merely need to point to a social problem for the right to wither into insignificance.57
But will emphasising the right to privacy’s sociality be enough to rescue it from irrelevance in the real world, weighed down as it is by concerns about terrorism and public safety, on the one hand, and unaccountable surveillance, on the other? What does policy need to look like to roll back attempts to turn societies into ‘surveillance societies’, where people cannot act or even think without the fear of being watched by powerful actors that may not have their best interests at heart? Social conceptions of privacy may still be deficient, as they may not focus on the social justice aspects of surveillance, such as social sorting on discriminatory grounds.58 Privacy may even enable surveillance, as it can lead to organisations ticking privacy boxes while largely continuing with their practices unhindered: a problem that will be explored in more detail later on when the work of privacy regulators is discussed.59 While emphasising the social content of the right strengthens the ability of privacy advocates to defend it against limitations on national security grounds, the problem with the ‘turn to the social’ in privacy studies is that it can be depoliticised. That is, it lacks a political perspective on the problem, and more specifically on power relations in society, and how the right will continue to be attacked, both as an individual and as a social right, unless the political interests at work in doing so are identified and addressed. A critical political perspective, including a Marxist perspective, is particularly important in this regard, as it is orientated to progressive social change; such a perspective should also address the limitations of a rights-based analysis. In other words, challenging unaccountable surveillance is not just about asserting a right to privacy, but also about changing how surveillant forms of power are organised in society. In this regard, Zachary Bruno has detected an absence of critique in the face of the massive expansion of the surveillance state: even the Snowden revelations did not cause US citizens to revolt en masse against violations of their rights. The sheer pervasiveness of the surveillance machinery, coupled with the absence of any critique of its dangers, means that alternatives remain difficult to imagine.60
From a Marxist perspective, the concept of a ‘natural individual’ vested with pre-political rights is a historical product of capitalist property relations and forms of production. Under these conditions, these freedoms have been developed mainly within the relationships of the ruling class.61 In other words, in unequal societies the ability to individuate is available to a select few. In outlining the conditions for freedom of the working class, Marx and Engels recognised a difference between negative freedom and positive freedom. Negative freedom means the lack of forces which prevent individuals from doing whatever they want. Positive freedom is the capacity of people to determine the best course of action and the existence of opportunities for them to realise their full potential. For Marx, negative freedom was a bourgeois concept, as it is the freedom primarily of those who own the means of production. Positive freedom comes about through working-class struggles, which create opportunities for the class to develop as human beings. However, in spite of his critique about negative freedom, Marx argued that both negative and positive freedoms need to be advanced, as the former creates spaces for the latter to be advanced. When applied to privacy, this means that activists need to protect privacy as a negative freedom – that is, as a freedom to protect and control individual and collective spaces for reflection, discussion and debate from intrusive interference – while advancing conditions for the enjoyment of the right by the broader society.
Henry Giroux has made some interesting arguments about shifting the terrain on which the struggle for privacy is carried out, onto a more outrightly political terrain. According to Giroux, recent resistance strategies to the surveillance state have individualised the problem by reducing it to a struggle for privacy. He argues that this approach is limited, in that it fails to address the bigger context in which the surveillance state is expanding, which is the growth in the exercise of arbitrary power. To this extent, the surveillance state is linked intimately to other techniques to increase social control, such as the militarisation of policing, the arrest and harassment of activists, the stretching of the definition of terrorism to include acts of political dissent, and the growing use of prisons to control marginalised social groups, who are disproportionately working-class and black. Citing Ariel Dorfman, Giroux argues that surveillance is about increasing power and control, and not just about violating privacy. He also argues that resistance must move beyond resistance to surveillance as such, and be channelled into the building of popular movements that have the capacity to engage in collective struggles to challenge abuses of power and, ultimately, change how power is organised in society. This may well include the establishment of an anti-capitalist party, which politicises surveillance as a systemic feature of neoliberal capitalism, and which organises to end a system that has come to rely so heavily on surveillance to achieve social control of increasingly restive populations.62
Another theorist who has grappled with how to conceptualise privacy from a Marxist perspective is Christian Fuchs. According to Fuchs, while it is important to defend privacy as a negative right, an alternative conception of privacy also needs to recognise the relations between privacy and private property, such as the use of the right to prevent the release of personal information revealing income differentials and prevent abuses of power. In order to understand these relations, Fuchs argues that it is necessary to consider privacy as a historical concept linked to the separation of social life into public and private realms. The private realm has become a realm of leisure and consumption, which creates demand for more goods and services and allows for a more effective reproduction of labour. Based as it is on liberal underpinnings, the dominant conception of privacy is highly individualistic. In order to develop the radical content of privacy, it is necessary to reconceptualise it as the right to resist surveillance by dominant groups, thereby strengthening the collective strength of subaltern groups. But in order to do so, privacy activists must emphasise the privacy rights of those at the bottom of the power structure, and they should not allow those who exercise power to conceal themselves.63
CONCLUSION: DEFINING SURVEILLANCE AND PRIVACY
Based on this foregoing discussion, my working definition of surveillance is the collection and analysis of information and the accessing of a person’s physical characteristics for the purposes of social control. Other forms of information collection and storage do not, to my mind, qualify as surveillance. Separating out these two practices is important, as it allows a more focused analysis of the problem, which is necessary for the development of appropriate resistance strategies.
When it comes to defining privacy, Fuchs’s orientation towards those aspects of privacy that allow workers, the unemployed and other subaltern groups to exercise their agency and gain social power is important, as it provides a conceptual basis for developing strategies and tactics for effective resistance, as these will move beyond addressing privacy violations as the end point of activists, to regarding them as problems epiphenomenal to a whole system of exploitation and oppression that needs to be changed if privacy is to be realised. Requiring privacy activism to occur within the context of an anti-capitalist party – as suggested by Giroux – is rather restrictive, and even dogmatic, as it prescribes the organisational form that struggles for privacy should take. Anti-capitalist parties are also few and far between in the current political period. Instead, these struggles should be waged wherever existing struggles against oppression and exploitation are taking place, and in the organisational forms that make the most sense to those engaged in them: in other words, privacy work should be ‘mainstreamed’ into these struggles. Privacy activists also need to identify the social forces that are most likely to challenge oppressive and exploitative systems successfully, and prioritise their collective
