“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

Katz v. United States

“’But who wants to be watched all the time?’

‘I do. I want to be seen. I want proof I existed [ . . . ] Most people do. Most people would trade everything they know, everyone they know — they’d trade it all to know they’ve been seen, and acknowledged, that they might even be remembered. We all know we die. We all know the world is too big for us to be significant. So all we have is the hope of being seen, or heard, even for a moment.”

The Circle, by Dave Eggers

The Circle (affiliate link), the latest novel by Dave Eggers, is a work of speculative fiction centering on a hypothetical technology company called the Circle. Eggers sets the story on a glossy, mythical Silicon-Valley internet campus that unapologetically resembles some famous not-so-mythical ones. At the start of the tale, the Circle has recently overtaken Google, Facebook, and Twitter. Its TruYou technology has created unified accounts for its users’ online presences, linking all social media profiles and bank information, tying it to users’ actual offline identities. TruYou is a convenience, a means of better connecting online, but it also changes the tenor of Internet conversation. Since TruYou eliminates pseudonyms and anonymous activity, it also restores real-life accountability to online comments and interactions. People are nicer. Shopping is easier. Communicating is quicker. People send “zings.” They respond with “smiles” or “frowns.” The reader need not decode much in order to recognize this world….

As the plot unfolds, the book prods at the underbelly of social media culture, the interplay between the public and private sectors, and the implications for society as a whole. It also questions the limits of knowledge and the anxious need for human beings to resist those limits. It anticipates an ever-growing threat to individual privacy by technology companies that link more and more of our otherwise disconnected data into an alarmingly comprehensive picture of our personal lives.

The story follows protagonist Mae Holland as she begins work at the Circle. Before her new job in the Circle’s Customer Experience department, she works in a soul-draining office at a utility company in Fresno, dissatisfied, struggling to pay off crushing debt from college loans. Mae is an outsider, but she soon embraces the Circle’s culture of sharing, its incremental use of user data to accomplish all manner of social goods. Everything is done with an ethos, everything intended to make the world a better, more democratic place.

Three guiding principles emerge:

(1) “Sharing is caring.”

Mae reasons, “If you care about your fellow human beings, you share what you know with them. You share what you see. You give them anything you can. If you care about their plight, their suffering, their curiosity, their right to learn and know anything the world contains, you share with them. You share what you have and what you see and what you know.”

(2) “Privacy is theft.”

“It’s the natural state of information to be free . . . So what happens if I deprive anyone or everyone of something I know? Aren’t I stealing from my fellow humans?” Mae asks.

(3) “Secrets are lies.”

Mae argues, “When there’s something kept secret, two things happen. One is that it makes crimes possible. We behave worse when we’re not accountable [ . . . ] And second, secrets inspire speculation. When we don’t know what’s being hidden, we guess, we make up answers . . . it leads me to making up lies. But if all the doors are open, physically and metaphorically, there’s only the one truth.”

Before long, Mae opts for the ultimate in openness. She agrees to go “transparent,” allowing a continuous online feed of her every move by wearing a SeeChange camera, designed by the Circle.

The story careens at a downward pitch from there, as you might guess.

The Katz decision quoted above gave us much of the guidance courts use when determining whether Fourth Amendment protections apply in a search-and-seizure context. Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized. But what if no one tomorrow reasonably expects the privacy that we do today?

Indeed, implications for law and government pervade The Circle. Explicitly, the Circle introduces Demoxie, a new technology that allows — or, rather, compels — all citizens to vote through their TruYou accounts, that links access to government services to not only public records but also users’ online profiles. Implicitly, there are issues about the status of information, with knowledge expressly considered by the Circle as “a basic human right.”

The most chilling element of Eggers’s dystopia is that — like in all the worst dystopias real or imagined — the people both reasonably and passionately want the new order. Here they want transparency over privacy. They want crimes solved, fugitives found. They want children protected, their well-being monitored, their education assessed. They want their health care information centralized. They want to know their blind dates’ favorite restaurants before meeting the first time. They want to know how many steps they’ve taken since noon, how many more calories they can consume before exceeding their recommended intake. They want elected officials to be open and honest, not duplicitous and revealing their true interests only in back-room deals. They want voting to be more accessible to all who are eligible to participate.

More than that, the Circlers in Eggers’s book crave human connection. They want to share their experiences with one another. Mae, when contemplating sharing a friend’s painful secret with Mae’s millions of online watchers, reflects, “Suffering is only suffering if it’s done in silence, in solitude. Pain experienced in public, in view of loving millions, was no longer pain. It was communion.” When technology facilitates the fulfillment of that reasonable human need, why reject it?

In Walker Percy’s novel The Thanatos Syndrome (affiliate link), the character of Father Smith, a slightly unhinged Catholic priest, asks repeatedly, ”Don’t you know where tenderness leads? It leads to the gas chamber.” This haunting line, nicked from Flannery O’Connor’s essays and correspondence decades earlier, reminds readers of the humbling discontinuity between our compassion, our pity, our sentiment on the one hand and our capacity for grave moral and social perversion on the other. Father Smith observes:

Never in the history of the world have there been so many civilized, tenderhearted souls as have lived in this century. Never in the history of the world have so many people been killed . . . More people have been killed in this century by tenderhearted souls than by cruel barbarians in all other centuries put together.

Father Smith serves as a voice in the wilderness in the world of The Thanatos Syndrome, as do the characters of Mercer and Kalden in The Circle, voicing the author’s concerns. They are crazy in the context of the stories’ fictional worlds, wise in the context of ours. They remind us that the greatest threats come from within us, not from without, and the most pernicious threats are those that are subtle twists on our impulses for good.

If totalitarianism comes, if the “infocommunisim” of Dave Eggers’s The Circle arrives, it will likely come through “sharing,” not “surveillance.” A worthwhile read for civil libertarians and lawyers of all stripes, the book shows that the greatest encroachments on our liberty are the ones we freely concede.

The Circle [Amazon (affiliate link)]


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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