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Privacy, Ancient and Modern

Thank you all for coming. My wife is a physicist, and she has warned me about you: that

I should tell you that I mean to read my talk, say that it will take about forty-five minutes, and

ask you to hold your questions until the end. For the sake of transparency, let me begin by

thanking John Moore for the idea for this talk, Chris Rogers for being excited about it, and David

Silver for making it possible.

Part One: Edward Snowden and the National Security Agency

On Sunday, June 9, 2013, a 29 year-old Booz Allen Hamilton employee named Edward

Joseph Snowden announced himself as the source of classified documents that had been leaked

to the news media over the previous three weeks. In the months that followed, Snowden exposed

details of the NSA’s signals intelligence programs, publicizing documents that described the

bulk collection of metadata about American telephone communications, NSA partnerships with

American internet companies granting direct access to these companies’ servers, the NSA’s

defeat of most publicly-available encryption techniques, and NSA monitoring of

communications by public and private individuals in France, Germany, Brazil, Mexico, and

Canada – as well as in the virtual worlds of online video games. American intelligence

authorities other than the NSA were exposed, too: other documents leaked by Snowden

described the locations of Central Intelligence Agency stations overseas, the identities of foreign

agents working for the United States, and foreign intelligence agencies’ cooperation with the US

intelligence community. The wide scope of the documents Snowden acquired, and the difficulty

of tracking his movements through the data maintained by American intelligence agencies, have

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led intelligence and law-enforcement officials to conclude that they “may never know the

entirety of what [he] extracted from classified government computers before leaving the United

States.”1

Dizzying advances in computing power over the past quarter century, and in the coverage,

speed, and penetration of our communication technologies, have made possible both the kind of

surveillance carried out by the NSA, and the kind of exposure of this surveillance carried out by

Edward Snowden. But the case of Snowden and the NSA is exemplary among recent cases of

this kind, such as the WikiLeaks case involving Bradley Manning and Julian Assange, or the

News International phone-hacking case involving Rebekah Brooks, for how starkly it raises

thorny questions. Some of these questions are legal. Is NSA surveillance of Americans

constitutional? Is Snowden a criminal? Many of the NSA’s surveillance practices, for example,

were reviewed by the Foreign Intelligence Surveillance Court, which took them to be authorized

by the 1979 Supreme Court precedent Smith v. Maryland. According to this decision, metadata

generated by telephone calls is not subject to the Constitution’s Fourth Amendment, which

guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.”2 But recently a judge from the Federal District

Court in DC has ruled otherwise, inferring from the mass collection of phone data that this

practice is “indiscriminate” and “arbitrary,” and therefore presumably unreasonable.3 Those who

regard such surveillance as constitutional tend to regard Edward Snowden as a criminal, and to

believe that he deserves to be tried on the felony charges he faces: theft and violation of the

Espionage Act of 1917.4 Those who regard the NSA’s activities as unconstitutional see

Snowden as a whistleblower and a hero. Still others take more complicated stances on the

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legality of the NSA’s and Snowden’s actions – seeing both as legal, for example, or both

criminal.

Other thorny questions raised by the Snowden case are not legal but political and

consequential. Is the NSA surveillance exposed by Snowden necessary to protect Americans

from harm? Defenders of such programs invariably say yes, but then confront the

understandable difficulty that their successes are classified, so that a public debate can’t take

them into account. In a speech on June 28, 2013, for example, General Keith B. Alexander,

Director of the NSA, claimed “[f]ifty-four terrorist activities disrupted; zero willful violations”

of American law.5 In subsequent weeks various members of the federal legislative and executive

branches, including President Obama, repeated some version of this claim, and it was picked up

by the national news media. But the investigative journalism website ProPublica has argued that,

of these fifty-four events, only four have been made public by the NSA – and the dependence of

these four cases on the NSA’s bulk data collection practices is unclear.6 Has Snowden’s

exposure of the NSA surveillance programs put Americans in harm’s way? Again, the evidence

is equivocal: defenders of the NSA say yes, and defenders of Snowden say no.

Now I should stress at this point, for the sake of further transparency, that I am not a legal

expert in surveillance or Fourth Amendment law; nor am I an expert in the intelligence

community and its practices – though I have studied this subject in the past. If I am an expert in

anything, it’s in the equally covert and recondite practice of studying and commenting on the

great books of the Western tradition. So I should say something about what light I hope to shed

on the case of Edward Snowden and the NSA, and on the subject of privacy, ancient and modern.

This will require a brief digression.

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Some of you may have heard philosophers refer to the fact-value distinction, or to the

distinction between is and ought. The Scottish thinker David Hume offered perhaps the most

provocative formulation of this distinction in the eighteenth century, writing in his Treatise of

Human Nature, “[‘t]is not contrary to reason to prefer the destruction of the whole world to the

scratching of my finger.”7 By this outrageous claim Hume meant to point out that reason’s

knowledge of a fact, that something is, is different from the passions’ evaluation of that fact, that

something ought or ought not to be. We act, he thought, on the basis of our passions, not of our

reason; we choose not on the basis of facts, but of our evaluation of facts. Now in my judgment,

this distinction, as Hume draws it, is too stark. I suspect that there are no pure facts: that every

fact comes with a charge of value, a field of feeling – otherwise it would never come to our

attention. But Hume’s distinction is helpful because it reminds us that facts are mute and

powerless without their charge of value.

To see how this distinction applies to the Snowden case, let’s return to the thorny

questions it raises. Suppose someone could demonstrate, beyond a reasonable doubt, that the

NSA’s eavesdropping programs are legal and constitutional. This would not settle the matter; it

would only prompt us to ask a more fundamental question: is everything that is legal and

constitutional also good? The same more fundamental question would arise if someone were

able to demonstrate that the NSA’s programs are illegal and unconstitutional – unless we are of

the view that everything illegal and unconstitutional is also bad. A similar evolution happens to

the thorny political and consequential questions that the Snowden case raises. Suppose it was

made perfectly clear that, in fact, the NSA’s bulk surveillance programs prevented a number of

terrorist attacks against Americans. This would not settle the matter unless we also hold that

there are no goods, such as privacy, for which it is worth risking, or even losing, American lives.

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Should it be demonstrated that Snowden’s leaks cost American lives, the same question would

recur: aren’t goods like transparency and democracy worth it?

My point is that, if they are to be meaningful, the answers to questions of fact must be

illuminated by answers to questions of value. As long as human beings exist, new techniques for

protecting private or secret information will presumably be discovered, as will new techniques

for defeating this protection. Whether and how these techniques will be used, though, depends

on what we value as good, and ultimately on what we value as the greatest goods.

This is where my claimed expertise in studying the great books of the West comes to bear.

The greatness of these books consists, first, in the profundity of their authors’ reflections on the

value of our greatest goods. Although these books are in our tradition, the reflections they

contain can strike us, due to their profundity, as surprising and alien – as I hope you’ll see shortly.

The greatness of these books consists, second, in the extent of their influence, despite the

strangeness of the reflections they contain. Their deepest thoughts, interpreted and popularized,

form the core of our often-unexamined self-understanding. They are the supermassive black

holes of our mental galaxies, invisible centers around which the constellations of our thoughts

silently and slowly turn.

My plan this afternoon is to put the fundamental questions of value raised by the case of

Edward Snowden and the NSA to two of the greatest books in the Western tradition, one ancient

and one modern. We’ll interpret their replies at some length, and conclude by seeing what light

they shed on our thinking. To know exactly which questions to put to my books of choice, let’s

begin by stating some of the opinions expressed about the Snowden case. We’ve already

sketched the legal, constitutional, political, and consequential pros and cons; for references to

more fundamental goods, we can turn to Edward Snowden himself.

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When he first stepped forward as the source of his leaks, Snowden insisted, “the public

needs to decide whether these programs and policies are right or wrong. […] If you realize that

that’s the world you helped create,” he continues, “and it is going to get worse with the next

generation and the next generation and extend the capabilities of this architecture of oppression,

you realize that you might be willing to accept any risks and it doesn’t matter what the outcome

is.”8 A later remark reported by the Guardian newspaper makes Snowden’s meaning more clear:

“I carefully evaluated every single document I disclosed to ensure that each was legitimately in

the public interest. Harming people isn’t my goal. Transparency is.”9 Let’s paraphrase these

remarks as follows, withholding judgment about their value. Matters that are legitimately in the

public interest should be transparent, so that the public can judge them. Moreover, this

transparency is important enough of a good that we should be willing to risk not only our own

lives, but perhaps even the lives of others, to achieve it. The eavesdropping practices of the NSA

are evidently such a legitimately public matter. In an interview in early October 2013, Snowden

elaborated on this theme. “So long as there’s broad support amongst a people,” he asserts,

it can be argued that there’s a level of legitimacy even to the most invasive and morally wrong program, as it was an informed and willing decision. […] However, programs that are implemented in secret, out of public oversight, lack that legitimacy, and that’s a problem. It also represents a dangerous normalization of ‘governing in the dark,’ where decisions with enormous public impact occur without any public input.10

On the basis of this elaboration we can add that the sphere of matters that are legitimately in the

public interest includes all decisions that have “enormous public impact,” and that Snowden

acknowledges at least one fundamental good that competes with the good of transparency, since

something made legitimate through transparency can nonetheless be “invasive and morally

wrong.”

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We can find one possible candidate for this competing good in some of Snowden’s recent

comments. In “An Open Letter to the People of Brazil,” sent to the newspaper Folha de São

Paulo on December 17, 2013, he writes, “These [surveillance] programs were never about

terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re

about power. […] [P]rivacy does not stop where the digital network starts,” he continues; “the

mass surveillance of innocents is a violation of human rights.”

My act of conscience began with a statement: ‘I don't want to live in a world where everything that I say, everything I do, everyone I talk to, every expression of creativity or love or friendship is recorded. That’s not something I’m willing to support, it’s not something I’m willing to build, and it’s not something I’m willing to live under.11

To paraphrase, again while suspending judgment: privacy is a human right, because it protects

individuals against the unjust exercise of power. The right to privacy thus constitutes a limit to

what can be made legitimate through transparency; a nation whose citizens agreed through the

democratic process to subject themselves to mass surveillance would nonetheless be doing

something “invasive and morally wrong.” And privacy, like transparency, is a valuable enough

good that it’s worth risking our lives to secure it.12

Those are our opinions, as put by Edward Snowden himself. The privacy of the private is

a fundamental good, as is the transparency of the public. Both goods are so fundamental, they’re

worth dying for. So what do our great books have to say about this? What can they teach us

about why we value the private sphere, why we value the transparency of the public, and whether

these values are compatible?

Part Two: Ancient Privacy

We don’t know much about the life of Plato, who flourished in Athens in the fourth

century BCE. Thirty-six dialogues and thirteen letters have come down to us as his; but of these,

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only the letters claim to shed some light on his life, since in the dialogues Plato himself hardly

appears. The central character in many of these dialogues is Socrates, of course, who is often

taken to be Plato’s representative. But in the dialogue we will consider today, the Laws, Socrates

does not appear. Socrates’ place in this latest and longest of Plato’s dialogues is taken by a

character named ‘the Athenian Stranger,’ one of three elderly men who spend a day conversing

about legislation while hiking from Knossos, in Crete, to the cave and temple of Zeus on Mount

Ida [625b].13 The conversation of these three elders is kept from being an idle pastime by the

pointedness with which the Stranger criticizes the laws of his companions, a Cretan named

Kleinias and a Spartan named Megillus, but also by the practical import of their discussions.

About a third of the way into their hike, we learn that several Cretan cities have agreed to found

a colony, and that the city of Knossos has been put in charge. The Knossians, in turn, have

delegated legislative responsibility to Kleinias and nine others, telling them to use the laws of

Knossos unless they discover others that are better. At the beginning of their day together, the

Athenian had said that the subject of their conversation should be “how a city might be best

established sometime, and how, in private, someone might best lead his own life” [702a-b].

Accordingly, Kleinias now proposes, “let’s construct a city in speech, just as if we were founding

it from the very beginning. This way there will be an examination of the subject we are

inquiring into, while at the same time I may perhaps make use of this construction, in the city

that is going to exist” [702d]. Kleinias’ companions, Megillus and the Athenian Stranger, agree

enthusiastically. By the end of their hike, and the end of their conversation, they are so

impressed by what the Athenian has said that Megillus cannot envision founding the new colony

without the Athenian’s help. Kleinias agrees to compel the Athenian to stay and take a share in

the founding; faced with this prospect, the Athenian remains silent [969c-d].

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By contrast, during their hike the Athenian dominates most of the conversation, with only

occasional questions, and even rarer objections, from Kleinias and Megillus. As with many

Platonic dialogues, though, the agenda of the conversation is strongly influenced by the

secondary characters’ initial contributions. Early on, in response to a pointed inquiry about the

Cretan way of waging war – they shoot arrows and run like cowards – Kleinias tells the Athenian

that, according to the Cretan lawgiver,

for everyone there always exists by nature an undeclared war among all cities. If you look at it this way, you are pretty sure to find that the lawgiver… established all our customs, public and private, with a view to war, and that he handed down the laws to be guarded according to these principles. For according to him nothing is really beneficial, neither possessions nor customs, unless one triumphs in war. For then all the good things of the defeated belong to the victors [626a-b].

In response to the Athenian’s probing questions, Kleinias goes on to generalize that “all are

enemies of all in public, and in private each is an enemy of himself” [626d]. The goal of life, in

private and in public, seems to be victory: victory over oneself in private and over others in

public, presumably using peaceful means if these others are fellow citizens, but violent means if

not. The Athenian tries to persuade Kleinias that war, and therefore victory, are for the sake of

peace; but he is not entirely successful [628e], and the twin goals of victory over oneself and

over others, in the forms of virtue and military power, dominate the remainder of their

conversation.

Against this backdrop, and about a third of the way into their hike, the Athenian offers a

general statement about the place and rank of the private sphere in their city in speech. Its details

are interesting, so it’s worth quoting at length:

That city and that regime are first, and the laws are best, where the old proverb holds as much as possible throughout the whole city: it is said that the things of friends really are common. If this situation exists somewhere now, or if it should ever exist someday – if women are common, and children are common, and every sort of property is common; if every device has been employed to exclude all of what is called the ‘private’ from all aspects of life; if insofar as possible, a way

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has been devised to make common somehow the things that are by nature private, such as the eyes and the ears and the hands, so that they seem to see and hear and act in common; if again everyone praises and blames in unison, as much as possible delighting in the same things and feeling pain at the same things, if with all their might they delight in laws that aim at making the city come as close as possible to unity – then no one will ever set down a more correct or better definition than this of what constitutes the extreme as regards virtue. […] Therefore one should not look elsewhere for the model, at any rate, of a political regime, but should hold on to this and seek with all one’s might the regime that comes as close as possible to such a regime. If the regime we’ve been dealing with now came into being, it would be, in a way, the nearest to immortality and second in point of unity [739c-e].

The best political system, with the best laws, according to the Stranger, is the one that comes

closest to achieving friendship, unity, and virtue among its citizens. It does so to the extent that

it succeeds in abolishing the private sphere. The Stranger concedes that some things are private

by nature: my body, my sensations and perceptions, my pains and delights, and the opinions that

are based on these. But he insists that, as much as possible, laws and practices should be used to

overcome these natural barriers between human beings.

Now the political system that he, Kleinias, and Megillus are discussing will be second

best, he admits, because it is not reasonable to expect that women, children, and homes can really

be held in common [807b].14 (Those of you who have encountered Plato will probably recognize

the community of women, children, and property as features of the city in speech described in

the Republic.) But even in this second-best system, the pursuit of friendship, unity, and virtue is

a full-time activity [807c-e], one that requires the regulation of many aspects of what we would

consider private life. “Whoever intends to promulgate laws for cities,” the Stranger insists,

and regulate how men should act in regard to public and common actions, but supposes he need not apply a degree of compulsion to the private things, supposing that each can live his daily life as he wishes, that it’s not necessary for everything to be ordered – whoever leaves the private things unregulated by law and believes the people will be willing to live with the common and public things regulated by the laws – is incorrect in his thinking [780a; emphasis added].

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Obedience to the laws in public matters is founded on obedience to the laws in private matters.

This is especially the case with the upbringing and education of the citizens, whose goal, as we

heard, is uniformity of judgment [788a].15 Indeed, even if one were to abandon friendship, unity,

and virtue as goals, and settle only for military power, the same attempt to abolish the private

would necessarily follow. “[O]ne should teach one’s soul by habits not to know, and not to

know how to carry out, any action at all apart from the others,” the Stranger tells his

companions; “as much as possible everyone should in every respect live always in a group,

together, and in common – for there is not nor will there ever be anything stronger, better, and

more artful than this for producing security and victory in war” [942c].

The bulk of these elders’ conversation has to do with setting up the laws and the ruling

offices of this best of possible regimes. They regulate marriages [721a-d]. They regulate the

birth, upbringing, and education of children, even mandating daily exercise for pregnant mothers

[789a]. They regulate the location and arrangement of private homes [779b-c, 790b],16 and they

limit private property in order to prevent the love of wealth [831c]. Each household will be “the

property of the city, in both a public and a private sense” [877d]. They prohibit private religious

worship and private shrines [910c], as well as most private travel [950d]. They regulate products

of the manual and the fine arts too: poets, for example, are censored, and prohibited from

creating anything “that differs from the city’s conventional and just version of the beautiful or

good things” [801d]. All of this is ruled by a bewildering array of officials, the most powerful of

whom constitute a Nocturnal Council that meets daily at dawn to keep watch over the laws

[951d-e]. In short, this best of possible regimes is a totalitarian state, run by a secretive

surveillance agency that does not answer, in any institutional way, to the citizenry as a whole.

The purely private sphere seems to have no dignity whatsoever – in this agreeing with the

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meaning of the Greek word for private person, ἰδιώτης, which has the sense of a plebian or a

layman, as well as the sense of an ignorant person – whence we get our English word idiot.17

Now there are many nuances to the Athenian Stranger’s presentation: nuances which I

have not mentioned, and which the Stranger’s companions Kleinias and Megillus mostly

overlook. It striking how wholeheartedly they embrace the idea of founding the city the

Athenian describes, likely not in spite of, but because of, its total denigration of private life.

After all, they both aspire to be lawgivers – that is, to devote themselves to the formation of

public life. But one nuance deserves mention here, because it is very important for our purposes.

Early in their conversation, in the course of laying out a law prohibiting the use of foreign money,

the Stranger adds that “if a private individual is ever compelled to go abroad, let him go, if the

magistrates allow it” [742b]. We have to wait until the end of the conversation – eight hours

later! – to learn what the Athenian has in mind. He returns to the subject while legislating about

public transactions, stating first, “it shall not be permissible for a man younger than forty to go

abroad anywhere in any way; moreover, no one is to go abroad in a private capacity” [950d], but

then modifying this to say, “[i]f certain citizens desire to observe the affairs of the other human

beings at greater leisure, no law is to prevent them” [951a]. These observers, the Stranger tells

Kleinias and Megillus, must be between fifty and sixty years of age [951c]; they will spend as

much of this decade as they want observing other cities, seeing and showing “something

beautiful which is different from the beautiful things in the other cities” [953c], for the sake of

accepting their city’s laws on the basis of knowledge, rather than solely by habit [951b]. When

they return from their travels, they must report to the Nocturnal Council, where each observer

will be judged. “If he should seem to have returned no whit worse or better,” the Stranger says,

let him be praised for the sake of his great eagerness of spirit, at any rate; but if he should seem much better, let him receive much more praise while he lives, and

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when he has died let him be honored with appropriate honors by the power of those in the council. If, however, he should seem to come back corrupted, he is not to associate with any young or elder man, making a claim to be wise. If he should obey the magistrates, he may live, as a private man, but if not, he is to die — if, that is, he should be convicted in a court for being a busybody in some way concerning the education and the laws [952c-d].

Thus the laws of the best possible city quietly make space for a private sphere with some dignity,

reserved for those who wish to see the beautiful things done by other cities, who want to know

the goodness of their own laws – and who are willing to risk their lives to do so.

Part Three: Modern Privacy

Let’s leap ahead two millennia. We know more about the life of Thomas Hobbes of

Malmesbury than we do about the life of Plato. Hobbes lived from 1588 to 1679; he began

writing his masterwork, titled Leviathan, or the Matter, Forme, and Power of a Commonwealth

Ecclesiastical and Civil, in 1646; and the work was published in 1651 [xlviii-liii].18 But these

two thinkers share at least one point of kinship across the centuries: while Plato’s hero Socrates

was executed by Athens in the fourth century BCE for corrupting the young, Hobbes’ book

Leviathan was condemned and burned by Oxford university in the seventeenth century CE for its

impiety.

While the impiety of Leviathan might not be immediately apparent, Hobbes’s project is.

The frontispiece of the book depicts a crowned king, bearing a sword in one hand and a staff in

the other, incorporated from many separate human beings, and looming hugely over a peaceful

and flourishing countryside. Below this scene hangs the title of the work, with symbols of civil

and ecclesiastical power arrayed to its left and right, respectively [lxxviii]. The project of

Leviathan, Hobbes tells his reader at the very beginning of the Introduction, is nothing less than

the generation of artificial life. By imitating nature, which is God’s art, human art can create

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artificial animals, including “that great LEVIATHAN called a COMMONWEALTH, or STATE…,

which is but an artificial man, though of greater stature and strength than the natural, for whose

protection and defense it was intended” [Introduction.1]. Those who seek the origin of the view

that corporations are people need look no further.

But why should human beings want to generate an artificial man, to incorporate one out

of their individual selves? Hobbes has just said that they do so for their “protection and

defense”: but why is this necessary? After all, the legislators in Plato’s Laws were also

concerned with the protection and defense of their citizens; but they made no mention of an

artificial man. The bulk of the first part of Leviathan is dedicated to explaining this point.

Hobbes’s premise, also stated in the Introduction, is the equality of human beings – an equality

of a curious kind. Due to “the similitude of the thoughts and passions of one man to the thoughts

and passions of another,” Hobbes writes,

whosoever looketh into himself and considereth what he doth, when he does think, opine, reason, hope, fear, &c, and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men upon the like occasions. I say the similitude of passions, which are the same in all men, desire, fear, hope, &c, not the similitude of the objects of the passions, which are the things desired, feared, hoped, &c; for these the constitution individual and particular education do so vary, and they are so easy to be kept from our knowledge, that the characters of man’s heart, blotted and confounded as they are with dissembling, lying, counterfeiting, and erroneous doctrines, are legible only to him that searcheth hearts [Introduction, 3].

Since passions are the same in all human beings, they are public: anyone who looks at his own

interior and another’s exterior will be able to infer the other’s desires, fears, and hopes. The

objects of our passions, by contrast, vary according to constitution and education, and so are

private, accessible only to mind readers. Interestingly, Hobbes seems to think that thoughts have

more in common with passions than with their objects, since he begins by writing of “thoughts

and passions,” but then explains his meaning with reference only to “passions.”

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If human beings are equal because their passions and thoughts are identical in kind, it

follows that the differences due to constitution and education, the objects of our passions and

thoughts that are the content of the private sphere, are relatively unimportant. Hobbes does not

take long to draw this conclusion. Several chapters later, he denies the existence of a final end or

greatest good for human beings, setting himself at odds with the whole ancient philosophic

tradition. If there were such an end or a good, he points out, then human desire would cease

once it was attained; but a human being who has no desires is dead, just like a human being who

lacks senses and imagination. To deny the existence of a final end or greatest good does not

require Hobbes also to deny the existence of human happiness, though. Happiness could instead

be the continual alternation between desire and its satisfaction, accompanied by the assurance

that this alternation will continue without a foreseeable end [XI.1]. This line of reasoning leads

Hobbes to “put for a general inclination of all mankind, a perpetual and restless desire of power

after power, that ceaseth only in death” [XI.2].

Having laid out the identity of human passions and thoughts, and in particular the

universal passion for endless acquisition of power, Hobbes is ready to explain why an artificial

man, the Leviathan, is necessary. He does so in the crucial thirteenth chapter of Leviathan, titled

“Of the NATURAL CONDITION of MANKIND, As Concerning Their Felicity, and Misery.”

Hobbes’s first step is to extend his premise of human equality. “Nature,” he writes,

hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he [XIII.1].

What looks like a claim that all men are created equal turns out, on closer examination, to be a

claim that all men are equal enough to deny one another’s superiority. The sequel strengthens

our impression of Hobbes’s caginess on this point, as he exempts the verbal arts and especially

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science from his claim that human beings’ mental faculties are equal, and then responds

sophistically to an objection. Anyone who finds this assertion of human equality incredible must

have an exaggerated opinion of his own wisdom, Hobbes alleges, which seems greater to him

because it is closer than the wisdom of others. “But this proveth rather that men are in that point

equal, than unequal,” he concludes. “For there is not ordinarily a greater sign of the equal

distribution of anything than that every man is contented with his share” [XIII.2].19

On the strength of this highly questionable assertion of apparent equality, Hobbes infers

that everyone has an equal hope of attaining his desires. But the desires of each human being are

for everything – power after power, ceasing only in death – so everyone is in conflict with

everyone else [XIII.3]. Whether the immediate cause be competition, suspicion, or disrespect,20

the necessary effect is war. This conclusion occasions Hobbes’s famous description of the state

of war, meant to make it clear that human beings should be willing to do almost anything to

escape it:

[i]n such condition there is no place for industry, because the fruit thereof is uncertain, and consequently, no culture of the earth, no navigation, nor use of the commodities that may be imported by sea, no commodious building, no instruments of moving and removing such things as require much force, no knowledge of the face of the earth, no account of time, no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man solitary, poor, nasty, brutish, and short [XIII.9].

Hobbes hastens to add that this “inference made from the passions” to man’s natural

condition is not meant to describe a universal historical or prehistorical state [XIII.11]. Rather, it

describes a local state that is always present to some degree, and most evident when a common,

overawing power is lacking. We see evidence corroborating Hobbes’s inference when we reflect

on our own practices – why we lock our houses and our cars when we leave them, for example –

as well as when we examine the consequences of civil war – the death of the body politic

[Introduction, 1] – and the practices of states as they relate to one another. “[I]n all times kings

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and persons of sovereign authority,” Hobbes points out, “because of their independency, are in

continual jealousies and in the state and posture of gladiators, having… their forts, garrisons, and

guns upon the frontiers of their kingdoms, and continual spies upon their neighbours, which is a

posture of war” [XIII.12]. Had she read her Leviathan, perhaps Chancellor Merkel would have

been less shocked to find the NSA listening in on her cell phone.

There is no right to privacy in the state of war, because there are no rights at all. “To this

war of every man against every man,” Hobbes concludes, “this also is consequent: that nothing

can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where

there is no common power there is no law; where no law, no injustice” [XIII.13]. There is no

right to privacy in the state of war also because nothing is private. “It is consequent also to the

same condition that there be no propriety” – that is, no property – “no dominion, no mine and

thine distinct, but only that to be every man’s that he can get, and for so long as he can keep it”

[XIII.13]. It avails nothing to remind Hobbes that the objects of each human being’s passions

remain private in this condition, for absent their secure possession, these objects, however they

may differ, are equally useless.

Unsurprisingly, Hobbes now argues that only an artificial man, a Leviathan, can provide

a common overawing power, and bring the state of war to a lasting end in a commonwealth.

What is very surprising is how he does this. Having just insisted that there are no rights in the

state of war, he retracts this conclusion on the very next page. There is, in fact, a right that

obtains in the state of war: “the liberty each man has to use his own power, as he will himself, for

the preservation of his own nature, that is to say, of his own life, and consequently of doing

anything which, in his own judgment and reason, he shall conceive to be the aptest means

thereunto” [XIV.1]. Every human being has the same passions, and these passions all

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presuppose life for their fulfillment, so every human being will do what he judges necessary –

and has a right to do what he judges necessary – to preserve his own life. But as we saw earlier,

there is no limit to what each human being desires, and so no limit to what he might judge

necessary to his preservation. In the state of war, Hobbes concludes, “every man has a right to

everything, even to one another’s body. And therefore, as long as this natural right of every man

to everything endureth, there can be no security to any man (how strong or wise soever he be) of

living out the time which nature ordinarily alloweth men to live” [XIV.4].

It is therefore rational for human beings in a state of war to lay aside some part of their

rights to everything, and to transfer them by contract to an artificial man that, acquiring these

rights, becomes the overawing common power needed to bring the state of war to an end. Only

in this way will we achieve security for the rights that remain. But which rights to transfer, and

which to retain? Hobbes’s answer is that we must transfer to the common power all rights whose

retention would perpetuate the state of war [XIV.5, XV.1]. In any case, the rights that we retain

must include those that cannot be reasonably transferred for the sake of some good, because they

are the preconditions of all goods. “[T]here be some rights,” Hobbes counsels,

which no man can be understood by any words or other signs to have abandoned or transferred. As, first, a man cannot lay down the right of resisting them that assault him by force, to take away his life, because he cannot be understood to aim thereby at any good for himself. [Second], the same may be said of wounds, and chains, and imprisonment, both because there is no benefit consequent to such patience (as there is to the patience of suffering another to be wounded or imprisoned), as also because a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not. [Third] and lastly, the motive and end for which this renouncing and transferring of right is introduced, is nothing else but the security of a man’s person, in his life and in the means of so preserving life as not to be weary of it. And therefore if a man by words or other signs seem to despoil himself of the end for which those signs were intended, he is not to be understood as if he meant it, or that it was his will, but that he was ignorant of how such words and actions were to be interpreted [XIV.8].

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Since the reason for transferring one’s rights to the sovereign is to secure a good life, no right

can be transferred if a good life is not thereby secured. We see here the genesis of our familiar

rights to life, liberty, and the pursuit of happiness, as stated in the Declaration of Independence,

and as spelled out in the Bill of Rights. Whether a right to privacy is implicit among these

retained rights depends, according to Hobbes, on whether privacy is necessary to a good life, and

on whether transparency is necessary to a secure life.

Part Four: Privacy, Ancient and Modern

Niccolò Machiavelli and Jean-Jacques Rousseau were careful readers of Plato’s Laws.

Machiavelli, arguably the founder of modern political thought, influenced Francis Bacon, whose

amanuensis was none other than Thomas Hobbes. Hobbes’s Leviathan influenced John Locke,

whose influence on the American founders, especially the Federalists, is clear. For his part,

Rousseau influenced Thomas Jefferson and the Anti-Federalists. Thus the echoes of these great

books, the Laws and the Leviathan, make their way down to our time, and we find ourselves in

orbits shaped by their immense gravitational pull.

What light do the Laws and Leviathan shed on why we value the private sphere? Both

works begin by denigrating this sphere: the Laws by arguing that it must be thoroughly

controlled for the sake of virtue and military power, Leviathan by arguing that it must be

disregarded for the sake of security. But on closer examination, we see that each work quietly

makes space for a private sphere with some dignity. The devotion to virtue of the city of the

Laws points to an interest in the beautiful practices of other cities, and so to a private life for

some of its citizens of showing and seeing such practices – though a life lived under the threat of

execution. The subjects of the Leviathan, on the other hand, who are singlemindedly focused on

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their security, must nonetheless retain enough privacy to preserve a life that is not wearisome. It

is important to notice, though, that the private sphere of Leviathan is a means to securing life,

whereas the private sphere of the Laws entails risking it. When a right to privacy is invoked as a

means to guaranteeing one’s rights to life, liberty, and the pursuit of happiness – as in the Fourth

Amendment, for example – this right becomes vulnerable to the counterargument that lives will

be saved if it is violated. An argument based on the premise that privacy is worth dying for, by

contrast, is not vulnerable to this counterargument.

What about our reasons for valuing transparency? Again, at first glance both the Laws

and the Leviathan, by elevating the public sphere, seem to advocate complete transparency. In

both regimes the rulers must see – in order to be able to reward and punish – every meaningful

action of their citizens or subjects. But a closer look shows us that this is not the whole story.

The rulers in the Laws see their citizens clearly, but the opposite is not true: the real power in the

city lies with a secretive council whose members may have heterodox or even illegal opinions,

and who lie to keep these opinions private. The sovereign in Leviathan sees his subjects clearly,

but they do not see him either: chiefly because he is the beneficiary of the rights that they have

transferred, such that he and they are no longer equal. Indeed, if Hobbes is right to say that a

state of war obtains whenever there is no common overawing power, then we are right to wonder

whether such a power rules over the relation between the sovereign and his subjects. If not, and

a state of war obtains between them, then by Hobbes’s own argument we should expect

governments to spy on their people, and people on their governments.

Lastly, we should note that Hobbes’s insistence that legitimate government is based on a

contract, rather than on education in virtue, as in the Laws, leads to an ambiguity about the

source of legitimacy. Does it lie in the fact of the contract, or in the receipt of the good

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contracted for? This ambiguity is the source of Edward Snowden’s confusion about NSA

surveillance: whether it is simply immoral, or whether it would be moral if the American people

would only consent to it. Here is a final respect in which the modern right to privacy can be

violated for the sake of saving lives – for who among us would not consent to saving lives at

such a cost?

Thank you.

Jeff J.S. Black 3 January 2014

Delivered 8 January 2014

Notes

1 Mark Mazzetti and Michael S. Schmidt, “Officials Say U.S. May Never Know Extent of Snowden’s Leaks,” New York Times. December 14, 2013.

2 “The Constitution of the United States,” in Alexander Hamilton, John Jay, and James Madison, The Federalist: A Commentary on the Constitution of the United States. Being a Collection of Essays written in Support of the Constitution agreed upon September 17, 1787, by the Federal Convention. With an Introduction by Edward Meade Earle. (New York: The Modern Library, 1937), 598.

3 Charlie Savage, “Judge Questions Legality of N.S.A. Phone Records,” New York Times. December 16, 2013.

4 Brian Knowlton, “Clemency for Snowden? U.S. Officials Say No,” New York Times. November 3, 2013.

5 From http://icontherecord.tumblr.com/post/57817369604/remarks-by-general-keith-alexander-director, retrieved on December 18, 2013.

6 From http://www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-lack-of-evidence, retrieved on December 18, 2013.

7 David Hume, A Treatise of Human Nature. Edited, with an Analytical Index, by L.A. Selby-Bigge. Second Edition. (Oxford: Oxford University Press, 1978), 416.

8 Mark Mazzetti and Michael S. Schmidt, “Ex-Worker at C.I.A. Says He Leaked Data on Surveillance,” New York Times. June 9, 2013.

9 From http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1, retrieved on December 18, 2013. The six sections of this report are an excellent introduction to the meaning of NSA surveillance and its exposure by Snowden.

10 James Risen, “Snowden Says He Took No Secret Files to Russia,” New York Times. October 17, 2013.

11 From http://www1.folha.uol.com.br/internacional/en/world/2013/12/1386296-an-open-letter-to-the-people-of-brazil.shtml, retrieved on December 18, 2013.

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12 Other commentators have gone further than Snowden does. James B. Rule, a sociologist affiliated with the UC Berkeley School of Law, wrote an opinion piece on the NSA and Snowden case for the June 11, 2013 issue of the New York Times. “We must also ask how far we want government to see into our private lives, even in the prevention and punishment of genuine wrongdoing,” Rule opines. “And how are we to weigh the prospective losses to communal bonds and trust in our communities and our institutions, in a world without the buffer against state intervention that privacy affords?” Privacy is worth maintaining even if crimes go unpunished as a consequence, and communal trust is maintained, interestingly, by maintaining citizens’ abilities to conceal themselves from one another.

13 All citations in the text of Part Two are from Plato, The Laws of Plato. Translated, with Notes and an Interpretive Essay, by Thomas L. Pangle. (Chicago: The University of Chicago Press, 1980), and are given in the text by bracketed Stephanus page numbers.

14 Of course, these things we’re now seeking [how the inhabitants of the city will live] probably wouldn’t ever be realized with adequate precision so long as women and children and homes are private, and all such things are arranged privately by each of us. But if the second-best arrangements after those would come into being for us as they’ve now been described, things would achieve due measure [807b].

15 The intrusion into the private sphere where upbringing and education are concerned is so deep that the Stranger wonders whether laws are up to the task. “Regarding the upbringing and education of children in this city,” he says,

it would appear to us more reasonable to utter a kind of instruction and admonition rather than laws. For there are many little things, not visible to everyone, that take place in private and in the home, which, because of each person’s pain, pleasure, and desire, go against the advice of the lawgiver, and would easily make the dispositions of the citizens diverse and dissimilar. This is bad for cities. For while the pettiness and frequency of these practices render it unfitting and unseemly to make laws imposing penalties, it nevertheless corrupts even the written laws to have human beings become accustomed to act against the law in petty, frequent ways. The result is that there’s perplexity as to what to legislate about these things, and yet it’s impossible to remain silent [788a].

Uniformity of judgment is the goal of upbringing and education because, as the Stranger explains later,

[w]hen… the opinion about what is best (however a city or certain private individuals may believe this will be) holds sway in souls and brings order to every man, then, even if it is in some way mistaken, what is done through this, and the part of each man that becomes obedient to such a rule, must be declared to be entirely just and best for the whole of human life — even though many are of the opinion that such injury constitutes voluntary injustice [864a].

16 According to the Stranger, “unless private homes within cities are correctly regulated it is vain for someone to suppose the common things will stand on a firm legal footing” [790b].

17 We get a strong sense of this lack of dignity when the Athenian describes one of the weakest ruling bodies in the city, the assembly called the Council, saying “most of the time all but a few of the Councilmen must of necessity be allowed to stay at their own private businesses and attend to their own domestic affairs” [758b]. The active Councilmen stay on guard at night to receive information about innovations from foreigners and citizens, and to forestall these innovations where possible [758c-d].

18 All citations in the text of Part Three are from Thomas Hobbes, Leviathan, with selected variants from the Latin edition of 1668. Edited, with Introduction and Notes, by Edwin Curley. (Indianapolis, IN: Hackett Publishing Company, 1994). They are given in the form [Chapter, paragraph] for the text of Leviathan, and in the form [page] for all other materials from this volume.

19 Compare the beginning of Part One of the Discourse on Method: “Good sense is the best distributed thing in the world, for everyone thinks himself to be so well endowed with it that even those who are the most difficult to please in everything else are not at all wont to desire more of it than they have.” Réné Descartes, Discourse on Method and Meditations on First Philosophy. Fourth Edition. Translated by Donald A. Cress. (Indianapolis, IN: Hackett

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Publishing Company, 1998), 1. Hobbes gives a more general formulation of the problem of esteem in Chapter X of Leviathan: “The value or WORTH of a man is, as of all other things, his price, that is to say, so much as would be given for the use of his power; and therefore is not absolute, but a thing dependent on the need and judgment of another. […] For let a man (as most men do) rate themselves at the highest value they can; yet their true value is no more than it is esteemed by others” [X.16]. The result is a necessary disagreement in which every man feels himself disrespected by every other.

20 Competition results directly from two human beings desiring the same scarce good. Suspicion, which Hobbes calls “diffidence,” arises when one human being feels contented with his power, but suspects that another desires to take it from him, on the ground that some human beings love power more than their own security [XIII.4]. And disrespect, which Hobbes calls “glory,” arises when assembled human beings esteem one another equally, but each desires to be esteemed more highly than the other [XIII.5]. From this reasoning, Hobbes concludes: “in the nature of man we find three principal causes of quarrel: first, competition; secondly, diffidence; thirdly, glory” [XIII.6]. In much of his argument, Hobbes is content to rely on the first of these causes.