Henry: 3 Objections to Tara's Thesis

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Tara's thesis is thoughtful, carefully researched, well-written, and compelling. As such, it seems only appropriate for me to raise some good-natured critiques.

First, it is unclear whether Tara sees the right to privacy as prepolitical or as a product of democratic contractualism. Tara roots her argument for privacy in the Lockean idea that "every man has a property in his own person" (Mehra 15) and the Kantian idea of an "innate right" to freedom (Mehra 18). Locke's natural rights framework and Kant's idea of natural human rights seem to involve what Corey Brettschneider would call "prepolitical rights of individuals" (Brettschneider 72). Locke and Kant both seem to see freedom as an important aspect of human dignity that is more fundamental than democracy. According to Brettschneider, these frameworks raise the problem of constraint, meaning that democratic processes and outcomes would need to be constrained by non-democratic principles. At the same time, Tara emphasizes that the right to privacy "is foundational to the constitutional grounding" (Mehra 31). Here, Tara seems to align with Brettschneider's argument that "democratic privacy is presumed by contractualism but also that this presumption can be overcome in the face of good democratic reasons" (Brettschneider 73). Thus, it is unclear whether Tara sees the right to privacy as prepolitical or a product of democracy.

Second, I'm skeptical of Tara's supposedly "self-evident" claim that "having property in ourselves requires having property in our data" (Mehra 44). Tara uses the Lockean idea that our ownership of things flows from our ownership of ourselves (Mehra 15). Likewise, Tara argues that "our right to control our data, which includes the right to exclude others from that data, is derived from our property in ourselves" (Mehra 39). She likens data to thoughts, claiming that people have "exclusive authority to determine when to share" their thoughts or data (Mehra 39). While it seems plausible that a rightful condition requires what Tara calls "a realm of personal space" (Mehra 23), I doubt that this realm extends into the arenas where Tara seems most inclined to extend it. 

For example, Tara describes Brandeis and Warren's scenario where a houseguest shares a description of his host's gem collection without his permission. Tara explains that "the houseguest is usurping the homeowner's right to control his or her property" (Mehra 28). Tara's conclusion becomes particularly troubling when we consider her claim that the state has a positive duty to enforce privacy rights (Mehra 25). While we might agree that the houseguest is guilty of bad form or even a "wrong" as defined by Tara (Mehra 43), we would hardly say that the state should punish the houseguest for sharing information he discovered without any physical trespass. Or if I share a secret with Gio that I hate Noah, and Gio blabs my secret to Sambhav, should the state enforce my property right to my thoughts and opinions by punishing Gio? Or consider the case of data. In a very mundane sense, I collect data about you whenever I observe and record information about you. For example, if I observe Tutu punching Kirby in the face, is it wrong for me to share this information? Or consider a company like AdImpact, which collects data about political advertisements. Since candidates have put their advertisements in the public sphere, is their data still their inalienable property? Or if I own a hardware store and I hire an intern to sit in the corner and take demographic information about each customer, am I violating their right to their data?

Third, I'm skeptical about the claim that internet companies extract data out of users through "coerced consent" (Mehra 60). Tara distinguishes between legitimate and illegitimate forced options (Mehra 53). She describes an ice climber who has to cut off her arm to free herself from certain death (Mehra 54), explaining that even though the ice climber was coerced, the coercion was not "ethically concerning" (Mehra 54). Conversely, Tara explains that illegitimate cases of coercion result from the "structure of society" (Mehra 54). Once again, I find some implications of this to be troubling.

Tara explains that because the use of cell phones is "necessary for participation in modern society" (Mehra 49), the privacy sacrifices demanded by it are coerced. Tara likens data privacy violations to a Wisconsin law where the operation of a motor vehicle implies consent to breath, blood, or urine alcohol tests (Mehra 51). Tara takes issue with this law, explaining that it violates the right to privacy through coerced consent since "people rely on driving in order to exercise their freedom of movement" (Mehra 53). As I see it, drunk driving endangers the rightful condition provided by roads, so it seems only reasonable to violate privacy to ensure that this rightful condition is upheld. Similarly, internet companies' existence requires the sale of user data, so it seems only reasonable to require it as a condition of use. Driving and the use of cell phones are also not necessary in a strict sense—the Amish get along just fine without either. But Tara is right that their ubiquity in modern life makes it difficult to get along without them. But it hardly seems illegitimate to me to require a privacy sacrifice for the use of certain public accommodations—especially if the privacy sacrifice is necessary for the proper functioning of the accommodation.

For example, imagine the 100 adjacent plots that Tara outlines in her thesis (Mehra 23). Let's assume that the government has created an easement connecting all the plots to ensure a rightful condition. Let's say that I—out of my own volition and with my own funds—were to build a high-speed rail along all 100 plots so that the person in plot 1 could get to plot 100 in 1/100 of the time. I want my high-speed rail to be completely drug-free, so I implement a system that selects random people to receive drug testing. Is this a coerced violation of privacy rights? Or consider other modes of transportation. Like driving, flying is necessary for participation in many aspects of modern life. Does the TSA, which thoroughly searches and scans airplane passengers to ensure safe flights, coercively violate the privacy of airplane passengers? As I see it, people have no right to use my cars, planes, trains, or technology in such a way that trumps my decision to place conditions on their use.

Thus, I have 3 qualms with Tara's thesis: (1) It does not clearly outline whether the right to privacy is prepolitical or political, (2) it interprets our property in our data too broadly, and (3) it interprets coercion too broadly.

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