About ten years ago, privacy was a huge issue in public and academic discourses, and in European and German-speaking sociology (which is where I am based). While in Germany sociology and neighboring disciplines initially remained somewhat reluctant to embrace the issue of digitization, it had already become impossible to ignore the topic. The “network society”Footnote ¹ had obviously prevailed. Big Tech platforms had succeeded in establishing their quasi-monopolies as indispensable infrastructures of social life. In addition, it was apparent that governmental and corporate mass surveillance in the digital realmFootnote ² differed from the logic of panoptic society as described in rather dramatic terms by Michel Foucault in the 1970s.Footnote ³

However, with the General Data Protection Regulation (GDPR) taking effect in Europe in 2018, the rapid spread of Artificial Intelligence into everyday life and the close alliance between antidemocratic right-wing populism and Big Tech in the US, scholarly attention has turned away from privacy and surveillance issues. Nevertheless, even though attention has decreased, the issues, problematics and questions connected to privacy and digitization have in no way become obsolete. Consequently, social research on contemporaryFootnote ⁴ as well as on historic privacy issues continues to advance. Martin Eiermann’s book The Limiting Principle belongs to the latter category.

To enter into conversation with Eiermann’s extremely valuable study of privacy’s genealogy in the US—that explicitly self-identifies as “historical social science” [23]—, it is first necessary to situate the knowledge that forms the background of this conversation: having provided a sociological genealogy of privacy’s European evolution from the 18th century onwards, this review takes the point of view of a European sociology scholar based in the landscape of German-speaking sociology. This is noteworthy because the focus of Eiermann’s analysis of the evolution of the “limiting principle” called “privacy” is explicitly on the latter’s US history. In this context, he borrows the essential notion of the “limiting principle” from legal scholar Laurence Tribe, who conceived of privacy as a mode of power limitation derived from the constitution and “the affirmation of those constraints through the courts.” [132]. Having said this, Eiermann is interested in how the limiting principle of “privacy became a distinctly public issue […] in American history” [5]. In studying privacy as a “public issue”, and thus reconstructing the US-American history of privacy’s institutionalization as a limiting principle, Eiermann puts forward the thesis that privacy has undergone a transformation “from a relatively informal set of social norms about domestic relations into a public issue and a limiting principle of modern American society […]. Its diffusion and institutionalization in public life demand our attention and deserve explanation.” [16]

To trace this process of transformation Eiermann, first of all, addresses some conceptional questions [1-23] (I will comment on these below), before setting out to reconstruct privacy’s transformation in six historical-analytical chapters. Two of these chapters provide the outlines of the general transformation thesis the book supports: whereas privacy occurred before 1890 mainly as the spatial private sphere of the family that was safeguarded by informal social norms [ch. 1: 24–47] it evolved in the course of the “early information age” (according to Eiermann the time span between 1870 and 1920) into a much broader concept. New economic (far-reaching trade networks for consumer goods), media (visual popular press), technical (telegraph), spatial (urbanization), and institutional practices (administrative data collection, census) established novel sociotechnical conditions [ch. 2: 48–76] that in turn induced privacy’s evolution.

The analyses presented in chapters 3 to 6 support, refine, specify, and deepen the transformation hypothesis. Eiermann first investigates the architectural restructuration of urban life that the densely populated American cities witnessed at the beginning of the 20th century. Driven by moral considerations, social reformers began to inscribe their middle-class minded pre-1890 ideas of the private home into the architecture of American cities, when they attempted to restructure the management of visibility in overcrowded multi-storey buildings. Practices belonging to the private realm, such as sexual activities or the beating of children, they lamented, had been visible to neighboring apartments and community areas, thus adversely affecting the moral decency “among millions of urban residents” [86], whereas the economic grounds of these conditions—overcrowding due to poverty—did not receive equal attention [ch. 3: 77–104]. Insofar as modified building regulations were translated into legal guidelines, they simultaneously inscribed formalized privacy rules into the urban reform of city planning.

At the same time, the idea of the “inviolate personality” of “informational persons” emerged [105 ff.]. Eiermann draws on Colin Koopman’s notion of the “informational person,”Footnote ⁵ thus referring to the constitution of subjects via data processing practices, such as storing, analyzing, and reproducing data about people in corporate and governmental databases. According to Eiermann, the emergence of the “informational person” further formalized privacy norms albeit for reasons other than urban reform [ch. 4: 105–131]. The interplay between new media technologies, business models, and forms of organization ultimately created a new relationship between individual self-constitution and novel types of corporations. By way of example, the newly invented mobile photo camera (Kodak) enabled the yellow press to emerge, allowing reporters to publish intimate details, including pictures, of celebrities’ private lives to a mass audience.Footnote ⁶ The new type of publicity sometimes included even ordinary citizens, for the emerging consumer culture developed a strong interest in both consumers’ individual preferences and in using images of ordinary people for advertising purposes. In this context, informational persons had a rather ambivalent relationship to organized data collection activities. That is, data processing by credit agencies was considered socially inclusive, whereas governmental eavesdropping of telephones and the like was met with suspicion. Hence, even in the “early information age” there was a trade-off between the protection of privacy and the advantages of data sharing. However, what had changed in comparison to the type of privacy issue that was prevalent pre-1890 were the entities that threatened to violate privacy: it was no longer neighbors, relatives, colleagues and other “nearby eavesdroppers” [6] who potentially jeopardized privacy, but systematic governmental and corporate large-scale surveillance and data analysis.

It is not particularly surprising that the legal stipulation and formalization of privacy proceeded in parallel to the urban (ch. 3), media-tech (ch. 4) and structural transformation of society (in fact, ch. 4 is reminiscent of Peter Wagner’s analysis of Organized Modernity).Footnote ⁷ Nevertheless, Eiermann devotes an entire chapter to the process of legal codification of privacy [ch. 5: 132–160], not least because he attempts to present a new narrative of the legal history of US-American privacy. While most accounts focus either on the landmark decisions of higher courts and influential legal scholars, or on the US “rights revolution” of the 1960s/1970s, for Eiermann it was the American Common Law system with its prototypical ad hoc decisions made by lower-rank judges that consolidated privacy law from the bottom up. To substantiate his own re-narration, he conducts a time-series network analysis of legal citations (a method that seems to be particularly well suited to case-based Common Law). This led to the identification of three distinct phases: up until 1900 (“initial judicialization”), privacy was only occasionally mentioned in juridical discourse. In the phase between 1900 and 1920 (“intralegal competition”), judges applied the right to privacy to a wide range of cases, while using established rights, such as property rights, reputation management, and natural law as a foundation. The phase starting in 1920 that consolidated privacy as a constitutional right co-occured with a change of focus: while at first privacy served the purpose of protecting against corporate data analysis, governmental data processing increasingly came into view.

However, according to Eiermann, the bureaucratic governance of privacy was always accompanied by what he calls [161] “Governance by Exception” [ch. 6: 161–188]. This refers to the ambivalence of privacy that has been emphasized frequently by Surveillance Studies scholars. Insofar as minorities and marginalized groups (e.g. the poor) more often than not, were not granted privacy rights, privacy stabilized power asymmetries rather than protecting against them. Or, as Eiermann argues by drawing on Schmitt and Agamben, power holders were granted the right to decide on the suspension of normal privacy rules—as an exception from the rule. Determining the state of exception enabled governments to cope with contradicting demands. For example, in the health sector, privacy rights had always been counteracted by various exceptional regulations and surveillance measures taken by health officers; and privacy rights in the realm of postal communication (privacy of correspondence) had frequently come into conflict with governmental objectives requiring intelligence (e.g. at wartime). Eiermann’s diagnosis therefore identifies an ultimate “tension between the governmental will to know and the rising valuation of privacy vis-à-vis the state” [184]. Privacy, he concludes, has always been a political affair, and the scope of privacy protections was never fixed once and for all, since government institutions determined the limits of privacy in view of objectives that were defined as collective goals. As such, privacy cannot function as a definitive bulwark against expansive authoritarian state power in the present.

Finally [ch. “Conclusion”: 189–205] Eiermann summarizes the main insights of the history of the institutionalization of privacy, before comparing it to the history of privacy in European societies, such as France, England, Prussia, and Germany. Connecting his analysis to contemporary privacy debates in general, and to the discussion about the alleged “end of privacy” in particular, he maintains a rather nuanced position that accounts for the ambiguity of privacy’s evolution. Pointing to the long history of the thesis of the end of privacy,Footnote ⁸ he is somewhat skeptical regarding today’s declaration of the death of privacy. He also refutes the idea of total surveillance by demonstrating the selectivity of the surveillant assemblage:Footnote ⁹ surveillance practices usually address certain groups and actors, and are shaped by racism or classism. In contrast, the idea of “total surveillance” conceals this discriminatory logic of surveillance, and naïve visions of privacy tend to overstate privacy’s capacity to generally protect against discrimination and informational power as such. What follows from these considerations is a mixed picture:

For Eiermann, giving up on privacy would therefore be as short-sighted a strategy as to overburden the normative notion with the idea of an impregnable fortress against an authoritarian surveillance state.

To evaluate Eiermann’s conceptual design and findings, I will begin with the methodological remarks presented in the book’s appendix [“Methodological Coda”: 207–221]. Here, Eiermann once again characterizes his approach as historical sociology aimed at reconstructing the closure of contingent processes by drawing on primary source materials. In the study at hand, this results in computational text analysis and geospatial analysis in combination with qualitative close reading procedures. In doing so, he succeeds in providing an analysis that, as regards the basic perspective, closely resembles Lucian Hölscher’s [1979] European conceptual history of the public and secrecy.Footnote ¹⁰ However, in terms of method, and cultural-historical and geographic scope, the study is obviously designed very differently.

Eiermann’s research is characterized by a range of wise strategic decisions already presented in the introduction. He conceives of privacy as a culturally specific, normatively variable, and genuinely social construct [11] that evolves in response to social problems [55], and has an essentially relational nature. That is, it is mobilized vis-à-vis diverse (categorically distinct) entities (known others of the life-world, anonymous government authorities and Intelligence agencies, profit-oriented data analysts, media publics, etc.). Eiermann furthermore accounts for the normative ambivalence of the notion right from the outset [privacy may stabilize as well as destabilize authority, as the “preface” specifies: X]. The same goes for privacy’s polymorphism which Eiermann emphasizes by drawing on Daniel Solove’sFootnote ¹¹ reference to Wittgenstein’s conception of “family resemblance” [189].

The outlined research design allows Eiermann to provide a sound analysis of how privacy as a social notion—as idea and practical concept—evolved out of, and co-evolved with, society, thereby transforming in response to the contingent processes of social history. Following Eiermann’s line of reasoning, what is especially striking for the European sociologist of privacy is the astonishing parallels between the continental and the US-American development: in Europe privacy also evolved in response to specific, socially produced problematics; the limiting principle was (and is) performed in different ways, that are shaped by social structuration, and legal codification occurred frequently in the course of normative societal conflicts.Footnote ¹² In this sense, Eiermann’s study provides an opportunity to search for cross-cultural continuity and overarching mechanisms in privacy’s evolution beyond context-specific developments.

However, to do this, what remains to be tackled more thoroughly is the notorious problem of the relation between privacy’s discourse and practice—a question that Eiermann largely ignores. Yet, the issue has implications in two areas: first, from a methodological perspective, it is necessary to examine in greater detail the conclusions that can be drawn from the explicit mention of terms such as “private,” “privacy” (or “Privatheit,” “privacidad,” etc.) in discourses for the actual practice of the limiting principle. Since Eiermann’s research interest lies in the institutional history of privacy, he manages to keep this problem in check by skillfully combining his computational discourse analyses with data analyses that allow for robust hypotheses about the reciprocal influences of laws and living conditions [see, for example, his combination of the analysis of the “Moral Reform” discourse in urban planning around 1900 with residential density analyses of that period in ch. 3: 98–102]. Nevertheless, in the field of privacy studies a certain skepticism has unfolded in recent years when it comes to drawing conclusions from the analysis located at the discursive level. For example, the much discussed “privacy paradox” [also addressed by Eiermann: 8] highlights the fact that the normative appreciation of practical actions, which actors explicitly articulate in discourses (interviews or surveys) cannot simply be equated with the actual performance of these practices in empirical reality. It is by no means unusual for respondents to emphasize how important privacy is to them, thereby reproducing widespread discursive notions and normative relevance claims, while their everyday practices—for whatever reason—do not reflect such relevance at all. For this reason, contemporary privacy research avoids explicitly asking actors about “privacy”, carefully sidestepping this notion, and instead focuses on reconstructing their privacy practices by asking them about their everyday life. So, how does what we might call, following Giddens, the “discursive consciousness” of privacy, relate to the “practical consciousness” of routine, everyday privacy practices?

A second issue that pertains to the question of the relationship between discourse and practice also directly affects Eiermann’s study. Most privacy scholars would agree that attempting to define the concept of privacy is like opening a can of worms: as highlighted in many studies, the polysemy of the term makes an unambiguous definition difficult, if not impossible. Eiermann therefore explicitly refrains from offering his own definition of the term, leaving the task to empirical observation [15]. However, this approach necessarily means that anything counted as privacy in empirical reality is treated as privacy in the analysis as well. While this strategy may appear conceptually consistent in light of privacy’s variability, it risks, on the one hand, overlooking those practices that actors themselves do not label as privacy practices (at the level of discursive consciousness), but which observers might still classify as such for good reason. On the other hand, it risks conflating a wide range of different processes, problems, and practices under the single umbrella term “privacy,” even though they can, and should, be distinguished in the analyses. In empirical reality, actors apply the limiting principle to quite different, analytically distinct dimensions of privacy: spatial privacy of the home, access to personal information by third parties, the familial private sphere, bodily intimacy, freedom to make decisions, etc. The fact that all these dimensions of privacy are discussed under the same umbrella term, and that they are empirically related does not automatically mean that they share the same homogeneous genealogy. Could it be, then, that in his study of the evolution of the American limiting principle from the 19th to the 20th centuries, Martin Eiermann subsumes quite different forms of privacy—each with its own developmental history—into a single genealogy of privacy? These forms include the familial privacy of settler society before 1890, the spatial privacy of tenants in socially reformed housing around 1900, and the informational privacy of the “early information age.”

My deliberately open-ended, critical inquiry is neither meant to shed doubt on the analytical value nor deny the reading pleasure of Eiermann’s highly recommended historical study. In the best sense, it prompts reflection on precisely where we should genealogically search for the emancipatory potential of privacy—especially in view of the systematic use of AI systems by contemporary societies that are increasingly characterized by authoritarian tendencies. And, last but not least, perhaps Eiermann’s work also helps to rekindle sociology’s waning interest in the concept, genealogy, and societal significance of privacy.