Privacy as a Right to the Freedom of Thought

-- By ConradNoronha - 16 Jan 2021

In the United States the right to privacy exists as a constitutional right which can be enforced against the government and a common-law right of torts which can be enforced against private individuals. The right to privacy has been thought to protect an individual’s right to secrecy—that is to be known only by the people of one's choosing—anonymity—that is to be unknown to others—and the right to autonomy—that is to control one’s identity. But privacy wasn’t always considered a constitutional or a common-law right.

In 1890, Louis Brandeis and Samuel Warren wrote a famous law review article arguing for the common-law right to privacy. They described privacy as “the right to be let alone.” They argued that this right does not originate from the principles of private property—even though it can sometimes resemble property rights—but instead arises from that of “an inviolate personality.” This right to privacy protects against undesired publicity. It gives to individuals the right to keep certain thoughts secret and to decide how to express other thoughts and to whom. This common law right to privacy is derived, in part, from the right to the expression of thought.

The American constitution does not explicitly contain the right to privacy. In Griswold v. Connecticut, 381 U.S. 479, 484 (1965), the Supreme Court propounded the idea that the specific guarantees in the Bill of Rights create penumbras of unenumerated rights. That is to say, that the rights mentioned in the Bill of Rights give rise to other rights which may not have been specified in the Constitution. The Court found that privacy was one such right. It held that this right to privacy is derived from the First-Amendment right to association and certain other rights. The right to association is considered to be part of the right to freedom of thought. Thus, the even the constitutional right of privacy is derived, in part, from a right protecting the freedom of thought.

The right to the freedom thought is a common fixture in most liberal constitutions and international instruments of human rights. The US constitution does specifically protect the freedom of thought. But the First Amendment freedoms—of religion, speech and press, and assembly and petition—are considered to be protections against encroachment on an individual’s freedom of thought. Some international instruments, like the Universal Declaration of Human Rights, specifically mention the freedom of thought which includes the right to change one’s religion or belief.

Freedom of thought, in these instruments, has a few core characteristics. First, the freedom of thought includes the freedom to influence others and to be influenced by others. Second, its primary objective is to create and protect conditions in which people can think freely. These conditions include the right to choose one’s religion, the right to freely express one’s thought, and the right to decide whom to associate with and thus whom to be influence by. This is because, barring mind control, people always have some degree of autonomy over their thoughts. Finally, freedom of thought protects against violations of these conditions by the government or quasi-governmental bodies. Because freedom of thought is premised on the assumption that the government is the only authority which can take away these conditions necessary for thought.

But the rise of social media has challenged some of the assumptions on the which the freedom of thought has been historically premised. For example, today social media companies exercise huge control over what speech can be published on their platforms and who can see it. Many have argued that this power is akin to sovereign powers of censorship exercised by states. By being able to ban certain groups on their platforms, these companies also exercise influence on people’s freedom to associate. Thus, in the digital age, the government is not the only authority which can curtail the conditions necessary for securing the freedom of thought.

More importantly, today’s digital companies can manipulate people’s thoughts directly in unsettling ways. Many internet companies operate in what is called the market for eyeballs or the market for human attention. Their business models are based on keep their users constantly engage by attempting to extract responses from users through stimuli. These companies compete for the increasingly scarce attention of their users. To be able to succeed many of these companies use user data to optimize content for their users, thereby keeping them engaged. This has given rise to the phenomenon of surveillance capitalism whereby companies constantly collect data from their users. They then use this data along with addictive design tools—like auto play for videos and dynamic news feeds which resemble casino slot machines—to grab their users’ attention. These companies use artificial-intelligence algorithms whose job it is to keep their users engaged on the platform. One way in which these algorithms keep people engaged is by invoking certain emotions like outrage which are not only addictive but also contagious. These companies also prey on their users’ insecurities like the fear of missing out. Through these tools, digital companies have the ability to influence people’s behavior for the benefit of their advertisers. The most notorious example of this was when a political consultancy firm named Cambridge Analytica obtained vast amounts of data from Facebook’s users and used that data to manipulate voters’ opinions with precision.

This reality of the digital world changes the way in which the freedom of thought needs to be protected. We now know that our thoughts can be manipulated directly, without our consent or volition. Ensuring external conditions like freedom of expression, association, and belief—as modern democracies have done so far—are insufficient to protect against direct manipulation of thought. But the freedom to influence one another is not only tolerated within our notion of the freedom of thought but is crucial to thought itself. It is thus hard to distinguish what messaging or format of messaging manipulates thought from that which merely influences thought. We can probably draw the line at messaging which uses an individual’s personal data to target an individual and influence her behavior. If individuals can genuinely decide who can collect what data from their online activities and how that data can be used in messaging aimed at them, they would’ve exercised control over their thoughts.

In the digital age, the right to privacy is important not just as an end in itself, but also as a means to protect thought. Because if we do not have the ability to use the internet and interact with our friends and family on it without being spied upon, our conscious and subconscious actions can be weaponized against us to manipulate our thoughts. Thus, we must view privacy as another right in the pantheon of rights aimed at protecting the freedom of thought.