Opacity as Constitutional Capacity: State Legibility and Privacy Technologies

Abstract

We develop a constitutional theory of the relationship between three distinct features of the state-citizen relationship: legibility, defined as what the state can reliably observe and act upon; privacy, defined as the protected sphere within which individuals act outside full state visibility; and opacity, defined as the level of effective non-visibility that obtains in a given society at a given time. We characterize this opacity level as a function of the institutional, technological, and individual forces that determine where on the privacy/legibility continuum a given polity is located. We argue that legibility and privacy are mutually constitutive components of democratic capacity, and that the opacity that emerges from their interaction is peculiarly sensitive to changes in information technology. Earlier step-changes in information capacity moved the opacity balance toward legibility, but at a rate that ordinary institutional correction could absorb. The digital era is different in three respects: legibility is already high, technological shocks to government capacity arrive in compressed succession, and the corrections that would maintain a democratically-representative opacity balance are lagged, partial, and increasingly bypassed by commercial data acquisition and surveillance by executive enforcement authorities. The resulting drift is a constitutional dilemma, in which a democratic state's observed behavior can diverge from the privacy commitments it has formally assumed. Privacy technology has become a corrective on the privacy side of the continuum, because it operates at the speed of adoption rather than the speed of public governance. The opacity balance is therefore a constitutional question because it depends on tradeoffs among competing legitimate governance preferences that only democratic contestation can weigh, and a polity that lets its opacity drift by administrative default has not struck a balance but instead abdicated the choice.