Is it OK to Track Someone’s Private Jet?
On the Relevance of Privacy from a Liberal Perspective
Disclaimer: yes, this post talks (a little) about Taylor Swift. If you’re tired of her, then just take the name of any other celebrity who has a private jet as a substitute.
Yesterday, the Kansas City Chiefs won their third Superbowl over the last five years, making them one of the few “dynasties” in the history of the NFL, alongside the 49ers, the Cowboys, and of course the Patriots. The pregame hype was however essentially focused on something completely different: whether Taylor Swift would make it on time from Japan to see her boyfriend play the game. And (spoiler for those who have not seen the game) she indeed made it.
This is admittedly absolutely uninteresting, except for the fact that, behind this story, a real issue about what the right to privacy implies has been lurking. As this article in the Washington Post documents, Swift’s attorneys have been threatening against legal action the student who is famously running a social media account tracking the flight of several celebrities’ private jets. Before Swift, Elon Musk had already issued a similar threat. Swift’s attorneys mention personal security issues and, more generally (as written in a letter they sent to the student and quoted by the Post’s article) claim that there is “no legitimate interest in or public need for this information, other than to stalk, harass, and exert domination and control.” The rhetoric used in this letter is in itself very interesting, as it clearly implies that the tracking of Swift’s jet is a violation of her right to privacy, a violation that subjects her to others’ harassment and control.
Let’s put aside the security issue for the moment, not because it is irrelevant or does not relate to a real concern, but because the tracking is anyway based on data that are, as a matter of fact, already public. If personal security is really Swift’s main concern, then the question is whether there should be any public data on flights – and this is the question her attorneys should probably address. Beyond this, why the use of this data is potentially problematic for Swift and other celebrities is mostly in terms of public relations. As it appears, largely because of her jet, Swift emits more than a thousand times more CO2 per year than the average human. What the tracking of the jet makes plain is that Swift, like many other super-wealthy people, is polluting a lot at a time when there is a widespread consensus that everyone should make efforts to reduce emissions. So, the data reveals a deeply unfair inequality but also shows that Swift’s behavior takes part in a practice that is producing considerably adverse effects on everyone’s well-being, present and future. It is therefore not surprising that Swift and her team would prefer that this information does not circulate too much.
Now comes the real issue. The distinction between the private and the public and the reorganization that each individual has a private sphere within which nobody can interfere with one’s thoughts and behavior is a cornerstone of liberal thinking. The abolition of the private/public is indeed a defining characteristic of totalitarianism broadly conceived. As Stanley Benn puts it:[1]
“The totalitarian claims that everything a person does and is has significance for society at large. He sees the state as the self-conscious organization of society for the well-being of society; the social significance of our actions and relations overrides any other. Consequently, the public or political universe is all-inclusive, all roles are public, and every function, whether political, economic, artistic, or religious, can be interpreted as public responsibility.”
The totalitarian society is nothing but the Orwellian nightmare where no one (except of course for the “pigs,” i.e., those who hold power) has any privacy. One’s behavior is always scrutinized and one’s thoughts are submitted to permanent control and pressure. The totalitarian ideal will never be achieved, at least under current technological conditions, because it is physically impossible to read one’s mind. However, there are many historical examples that indicate that some societies can come close to it.
The private/public distinction is one of those consensual cases that shows that liberal thought is deeply rooted in Western societies and beyond. Obviously, that the distinction is acknowledged doesn’t mean that everyone agrees on where to draw the line.[2] One’s geographical location at any instant in time is typically the kind of information that most of us would agree is private. We don’t want that anyone else is able to know where we are at any moment without our consent. The information could be used with malevolent intentions to rob us or eventually blackmail us. More fundamentally however, independently of the way such information would be used, we tend to consider that where we are is not others’ business because we are not liable to any obligation regarding this matter, except for specific circumstances explicitly mentioned by the law – provided of course that the law is itself (publicly) justified.
So, what are the circumstances that could be relevant in the case at stake? As it is well known, John Stuart Mill suggested in On Liberty a principle to help determine when an interference with one’s private sphere is justified. What is now called the harm principle reads like this:[3]
“[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Most of the implications of the harm principle hinge on how the notion of “harm” is understood. Under a relatively broad understanding, all cases of externalities fall into its domain of application. By polluting a lot with her jet, Swift is definitely harming humanity, and, on a strict reading of Mill’s principle, this justifies interference with her traveling choices. There are several points that indicate however that this is not what is at stake here. First, as a matter of fact, there is already interference with Swift’s because the fuel her plane is using has probably been taxed. More generally, if carbon is properly priced, then there is no reason to interfere further with her traveling choices. Second, the problem is not so much to determine whether or not we can legitimately interfere with her choices but whether a kind of information about of choice – that could eventually permit such interference – can be publicly released. Third, and relatedly, if there is any concern (putting personal security aside) it is about the implications of public release of such information in terms of (to use the words of Swift’s attorneys) “control,” “domination,” and “harassment.”
While Mill’s harm principle is well-known, what is far less mentioned is that Mill had a very permissible view about the way to mind others’ business without interfering properly speaking. Hence, at the beginning of the fourth section of On Liberty, titled “Of the Limits to the Authority of Society over the Individual,” Mill writes:[4]
“There is a degree of folly, and a degree of what may be called (though the phrase is not unobjectionable) lowness or depravation of taste, which, though it cannot justify doing harm to the person who manifests it, renders him necessarily and properly a subject of distaste, or, in extreme cases, even of contempt: a person could not have the opposite qualities in due strength without entertaining those feelings. Though doing no wrong to any one, a person may so act as to compel us to judge him, and to feel to him, as a fool, or as a being of an inferior order: and since this judgment and feeling are a fact which he would prefer to avoid, it is doing him a service to warn him of it beforehand, as of any other disagreeable consequence to which he exposes himself… We have a right, also, in various ways, to act upon our unfavorable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us. We have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom we associate… What I contend for is, that the inconveniences which are strictly inseparable from the unfavourable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct and character which concerns his own good, but which does not affect the interests of others in their relations with him.”
So, if we grant that the problem with Swift’s flights is not (or not only) an externality issue, on a plausible reading, we could say that tracking her jet and criticizing her on this basis is part of the “inconveniences which are strictly inseparable from the unfavourable judgment of others.” The dissemination of information that grounds this judgment is then not objectionable as it is related to the right that each of us has to appraise everyone else’s conduct in the terms of our choice.
We should keep in mind that Mill’s view on this specific issue is tied to his perfectionist account of individuality and his utilitarian defense of individual freedom. Mill was an anticonformist and he projected this trait of character on his conception of the good. An authentically free person should be able to withstand social criticism and others’ opinions, as long as this criticism does not turn into genuine interference. This is at this condition that individuals will develop their character and turn their mere opinions into beliefs backed by the exercise of reason. This is therefore needed if we want falsities not to become widely accepted and people to turn into sheep merely conforming to the prevailing opinion.
The downside is that a society where forms of life meet the Millian ideals can easily turn to be oppressive if not authoritarian. As Mill was well aware, social criticism can mutate into despotism. There is therefore a thin line between a form of transparency permitting a socially useful and progressive criticism of people’s beliefs and behavior and an oppressive social control that smashes any velleity to think or behave differently. Mill’s perfectionist account of individuality is essential in his more global utilitarian defense of freedom, as without it social pressures will push people to conformity, exactly the contrary to what Mill was good for society.
The problem is that few of us meet the requirements of Millian individuality. The case of billionaires flying with their private jet is mostly anecdotic because they represent a small minority that has anyway means (including legal) to protect themselves from social pressures. But the rules of social morality must be amenable to universalization. So, if we consider Swift’s case as unproblematic, we should ask whether this remains true when applied to the average person. In a sense, the Millian view of privacy is compatible with the so-called “cancel culture,” minus the use of force to shut down individuals. The latter is largely based on the infringement on privacy and the use of intimidation and collective pressure to eliminate views from the public sphere. Here as elsewhere, liberals face a difficult tradeoff, meaning that we should expect them to entertain a range of different and partially incompatible views.
[1] Stanley I. Benn, A Theory of Freedom (Cambridge ; New York: Cambridge University Press, 1984 [2008]), p. 289.
[2] As an aside, I like to think of libertarianism as the exact opposite of the totalitarian ideal. The libertarian ideal is one of a society where nothing is public, and everything is viewed as belonging to individuals’ private spheres. Libertarianism cannot get rid of social interactions obviously and so some kinds of rules that transcend private spheres are needed. There is also a modicum of public sphere in a libertarian society, but it results from individuals’ free choices of association.
[3] John Stuart Mill, On Liberty, Utilitarianism, and Other Essays (Oxford University Press, 2015), p. 12-3.
[4] Mill, On Liberty, pp. 75-6.