Privacy, in its various forms, is ultimately about control. The ethic of nondisclosure involves our ability to control access to information about ourselves, whether the information is favorable or unflattering. The ethic of noninterference involves our ability to control decisions about our own lives, for good or ill. When we disaggregate these meanings, it becomes easier to understand how their connection, through mutual reinforcement, is basic to personal liberty.

The knowledge that others—whether private citizens or the government—may be observing our words and actions against our will alters the environment in which our decisions are made; it makes it harder to exercise true control over personal decisions. What Alito dismisses as a conceptual conflation is better understood as a necessary alliance. As we head into a world without Roe v. Wade, the enforcement of abortion restrictions will depend, tellingly, on industrious efforts to ferret out information about individuals seeking, obtaining, and performing abortions. People arriving at certain clinics already find themselves filmed, their license plates recorded.

So it’s unfortunate but unsurprising that the use of one term to refer to the personal dimensions of both secrecy and autonomy has led to confusion over whether privacy really is a fundamental right. The problem arises when we take secrecy as an end in itself, and thus as the paradigm of privacy—an error that can be traced back to Warren and Brandeis’s parochial preoccupations. In truth, privacy with respect to the disclosure of information is an outgrowth of the deeper concern to preserve the conditions for individual autonomy, not the other way around. Rather than a prerogative of the privileged, intent on keeping the general public at bay, the right to privacy should have been understood from the start as a prerogative of the people, establishing a zone where the state cannot readily trespass.

Deciding where the zone extends and when that zone can be breached will always be a vexed and demanding process, because it takes place at the very interface between a polity and a person. Yet when we diminish an individual’s protections against the state the costs are far from insignificant. That shouldn’t be a secret. Personal autonomy, the ultimate value that privacy enshrines, doesn’t just buttress freedom; it is freedom.

Privacy rights protect personal autonomy and shield survivors of abuse. They also conceal abuse and safeguard the powerful.
Jeannie Suk Gersen, The New Yorker (6/20/22)

The combination of state surveillance and its capitalist counterpart means that digital technology is separating the citizens in all societies into two groups: the watchers (invisible, unknown and unaccountable) and the watched. This has profound consequences for democracy because asymmetry of knowledge translates into asymmetries of power. But whereas most democratic societies have at least some degree of oversight of state surveillance, we currently have almost no regulatory oversight of its privatised counterpart. This is intolerable.

The evolution did not stop there. Ultimately they understood that the most predictive behavioural data comes from what I call “economies of action”, as systems are designed to intervene in the state of play and actually modify behaviour, shaping it toward desired commercial outcomes. We saw the experimental development of this new “means of behavioural modification” in Facebook’s contagion experiments and the Google-incubated augmented reality game Pokémon Go.

It is no longer enough to automate information flows about us; the goal now is to automate us. These processes are meticulously designed to produce ignorance by circumventing individual awareness and thus eliminate any possibility of self-determination. As one data scientist explained to me, “We can engineer the context around a particular behaviour and force change that way… We are learning how to write the music, and then we let the music make them dance.”

'The goal is to automate us': welcome to the age of surveillance capitalism
John Naughton, The Guardian (20 Jan 2019)