Bodies and Bytes: Privacy in the United States and Germany After Snowden

By: Kevin Stone

Despite the major reforms President Obama outlined in a recent speech, polls show that American citizens remain ambivalent toward the NSA.[1] American approval of the surveillance program is approximately split, leaning slightly toward disapproval. At the same time, most Americans think Snowden should face trial, although editorials continue to debate whether he is friend or foe.

Meanwhile, feelings are more united in Germany. Snowden is portrayed as a martyr, a visionary, even in seemingly neutral reports. For example, an otherwise matter-of-fact article from the national newspaper Die Zeit featured a photo of a poster that casts Snowden’s face in place of Obama’s in the iconic HOPE posters from the 2008 US presidential election campaign.[2] And although Snowden was not granted asylum in Germany, the Bundestag, Germany’s legislative branch, took the possibility seriously, and the country continues to debate whether he should be allowed to testify before the EU.

A sponsored ad for OLYMP that appeared on German-language Facebook newsfeeds this week captures the breadth of the split between American and German sentiments. The ad linked to an article in the Stuttgarter Zeitung, a major regional newspaper, with the caption “Edward Snowdens neueste Enthüllung: Seine Lieblings-Hemdemarke!” (“Edward Snowden’s newest revelation: his favorite brand of shirt!”). Though many in the US have called Snowden a hero who deserves a pardon, using Snowden’s image to hawk shirts is nigh unthinkable in the American context. Most advertising works by appealing to as many people as possible, so a divisive figure is not going to sell clothes. In Germany, however, enough of a consensus has emerged in support of Snowden that evidently OLYMP thinks the name-drop will pay off.

A vast web of factors underlies the differences in these two attitudes. For one, there’s the obvious fact that the NSA is part of the American government, and so its surveillance program is for the (ostensible) protection of American citizens. History plays a large part as well; little more than a month after the Guardian broke the Snowden story, a German artist projected the words “United Stasi of America” on the US embassy in Berlin.[3] And Germans can scarcely feel comfortable that their prime minister, Angela Merkel, counts among the program’s alleged targets.  Among these factors is one issue particularly worth isolating:  the difference between German and American conceptions of privacy. Whereas in American discourse a body-based concept of privacy appears most frequently, a data-based­ concept of privacy predominates in German discussions. These respective focal points reveal a difference in how each country’s culture understands the private self.  In the US, the private self is the body: individual, material, and inviolable. In Germany, the private self is a collection of information: multiple, abstract, shareable by willing individuals, and accessible by organizations that play by the rules.

Obviously, these two conceptions of privacy are interlinked and present in both countries to some extent. Still, the US focuses significantly more on bodily privacy and Germany more on data security in their respective privacy debates. Consider two examples of US privacy policy during the 2000s. On the one hand, the PATRIOT Act, which allowed the collection of data previously protected by warrants, zoomed through Congress with relatively little uproar. On the other hand, the introduction of full-body scanners into US airports in the late 2000s caused national outrage that spread even to some conservative pro-security politicians. Even by 2014, the sense of intrusion has remained strong enough that an article can still go viral with a title like Politico’s January 30th piece “Dear America, I Saw You Naked—And Yes, We Were Laughing: Confessions of an Ex-TSA agent.”[4]

In Germany, the preoccupation with Datenschutz (data protection) is hard to ignore. It was a major platform of the (unsuccessful but much discussed) Piraten Partei in the recent national elections. Every German website and even official letters from the government that request personal information feature a section assuring that the data collected will be used with the utmost care. ATMs are covered in diagrams demonstrating how to covertly enter a PIN to protect this personal datum. Germany, unlike the United States, has embraced social democracy, resulting in a greater need for data collection, since federal institutions require data to perform services. What follows is a lesser degree of that absolute, individualistic, body-centered privacy that Americans so strongly value. In turn, the American concept of privacy has brought about a strong resistance to any institution’s perceived violation of the body’s privacy. For example, rumors of “death panels” evoked a primal fear of the Affordable Care Act in the US public during negotiations for the healthcare law. This morbid catchphrase linked the involvement of government in private bodily matters to the complete destruction of the body. The resulting ubiquity of the term “death panel” in the debate surrounding the ACA suggests that the bill’s opponents who coined the term knew their audience all too well.

Despite the obvious historical referent, the idea of a government death panel would be unfathomable in the current German context. To convince citizens to share the data that fuel its social democratic services, the German government must create an atmosphere of mutual trust. It accomplishes this by exhaustively alerting citizens to every act of data collection and its conditions. Even a brusque third notice to pay the tax that funds public radio invokes this trust, assuring the delinquent, “Selbstverständlich werden die gesetzlichen Datenschutzbestimmungen eingehalten.” (“As a matter of course, the legal stipulations for data protection will be upheld.”)  Such stipulations are invoked in every transaction and interaction between the individual and the institution. Every website contains a Datenschutzerklärung, or data-protection statement, which asserts that the company or institution “legt großen Wert auf den Schutz Ihrer Daten” (“places great value on the protection of your data”), to quote just one of them. The repetition may seem unnecessary, but repeating is precisely the point. If the government alerts the individual to every single act of data collection, it implies that the citizen always gives up data voluntarily. No data collection could happen in secret because it would be a breach of this trust.

Trust is essential to the German system because data don’t work like the body. Intrusions on the body (incarceration, medical procedures, body scans, etc.) are usually known to its owner since the body is an individual and material thing. Data, on the other hand, exist in a diffuse realm away from the body. Once they have been atomized and rarefied—in medical charts, sex tapes, CCTV, photographs, etc.—they are easy to reproduce and distribute without alerting the individual in question. This fear of data distribution outside of citizens’ knowledge underlies the German obsession with Datenschutz. The proliferation of large-scale data-collecting institutions may enable a wider scope of services from those institutions, but it also heightens the risk of massive data misuse. To quell the fear of such abuses, large-scale institutions must constantly cultivate the trust of citizens—thus the exhaustive data-privacy disclaimers.

Accordingly, Snowden’s actions are an inherent good by the German model’s standards. If voluntarily shared secrets are the currency of the social democratic state, then the collection of data outside of the individual’s awareness is theft, and the exposure of such activity is heroism. The NSA collects data secretly, so Germans almost universally condemn it.

Under the body-based understanding of privacy found in American discourse, the ethics of the NSA’s data-collection policies are more ambiguous since the data in question do not clearly preserve or destroy bodily privacy. This privately collected information could be used to make arrests, to detain, or to execute via drone—all of which are intrusions on the body. But, as about half of Americans seem to feel, this will not happen to them. Rather, these intrusions are reserved for a class of others who themselves threaten to inflict mass bodily harm. Terrorism as Americans have experienced it transforms the private body into a public political statement through the spectacle of mass violence. Consider one of the most potent images broadcast in the media coverage of 9/11: bodies falling from the towers, slowly, horribly, individually distinguishable yet en masse, to the ground. Perhaps, goes the American thought process, by transgressing against the bodily privacy of some (the guilty), the NSA program is protecting the bodies of more (the innocent—me). This utilitarian justification, coupled with the still unshakable eeriness of a Facebook-stalking federal government, has resulted in the American ambivalence toward Snowden and the spying program he revealed. It is difficult to imagine how this could change without fundamentally restructuring US security programs or rethinking the US conception of privacy.

It is too early to tell, but perhaps this rethinking will be the most lasting result of Snowden’s actions. His leaks provoked enough of a public backlash that Obama felt the need to give his recent speech detailing reforms. Americans have become more protective of their data, and venture-capital investments in cyber-security firms are expected to rise accordingly. [5] Most of all, the debate following Snowden’s revelations has made it clear that it may no longer be possible to decouple these two notions of privacy. Contemporary technology increasingly blurs the distinctions between data and the body. The social media websites targeted by the NSA data collection program intermingle personal facts with videos and selfies. The Affordable Care Act mandates the digitization of medical records, partly to make this bodily data more accessible and shareable. And the reviled full-body scanners save their intrusions as digital data (which, the TSA assures, are immediately deleted). Even if Americans continue to privilege the body in their understanding of privacy, that understanding will still have to change in a world where the body is being increasingly digitized and datafied.

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