No Right to Remain Silent: Negative Rights in a Positive-Rights World

Last December, reports began to circulate about the US Government’s proposed new entry requirements for tourists. Travelers may soon be asked to list and make public the social media accounts they’ve held over the last five years, and much more beyond that.

At first glance, this might seem a regrettable, yet predictable, progression of surveillance.

But it also reveals something more subtle.

The new plans are just the latest prominent example of a societal framework that assumes participation. Legibility has become normalized. Having a record is assumed. Lacking one is suspicious.

Legally, this same assumption holds true.

Laws around the globe focus on positive rights, or control over existing data. You can often request access, correction, deletion, or raise an objection through regulations such as the GDPR or CCPA. Practically none give you the reverse, negative rights.

In other words: the right to produce no data broadly doesn’t exist.

To grasp this idea fully, it is important not to consider data merely as a set of discrete items. Of course, systems collect data not only on what you say and do, but equally on what you leave undone. The collection of that data is something you have scarce power or right to control.

Shoshana Zuboff’s Surveillance Capitalism succinctly accounts for this constant monitoring. Power stems not from merely observing behavior, but rendering it into a resource. Prediction is profitable, and uncertainty is waste.

Opacity, therefore, is a friction that creates uncertainty. And friction, in the eyes of governments or corporations, can look a lot like risk.

How does that play out today?

Consider these two real-world examples. The first, in 2019, involves trials of facial recognition technology by police in London. In several cases, passers by were stopped for covering their faces or pulling up their hoods.

Take also consumer credit. Agencies often rely on large, data-rich models to make decisions quickly. Especially in developing, non-GDPR markets where millions remain ‘unbanked’, social media profiling has been marketed as a more inclusive means of assessing those with a thin credit file, or none at all. Yet for the data-poor, the outcome can be akin to discriminatory profiling.

In both of these examples, silence itself is data.

And in each example, actions have been taken—some may argue legitimately—to minimize risk. Yet in hindering bad actors or rewarding legibility, we normalize punishing those that simply wish to be unmeasured.

More to the point: if we reduce the conversation about privacy to control of personal information, we miss the human and political value of not being fully knowable.

Édouard Glissant described a ‘right to opacity’ as a refusal to be reduced to what dominant actors or systems can understand or manage. It was forged as a means to subvert colonial oppression yet remains uncomfortably relevant today.

When systems demand that you comply—that you become legible to them—opacity can be a crucial means of retaining self-definition. In this way, silence is generative: it allows you to experiment, dissent, and live on your own terms.

Yet often you do not have a choice. A particularly grave reminder is the global rise of welfare access contingent on you providing your biometric data.

One report on India documented the death of a man in his fifties and his prior struggle with the identity system regulating access to food. Many others describe similar tragedies.

Why doesn’t the law uphold a right to opacity?

Legal systems are built around evidence and accountability. GDPR and equivalent regulations work because they police past data misuse. Policing suspicion towards the unmeasured—from which the harm is often indirect—presents a very different challenge.

There is an obvious economic barrier too. A right to be unmeasured would cut against the business model of a plethora of large corporations with enormous political sway.

This would come just at a point when data brokers are further tightening their grip: researchers at the University of Cambridge suggest that AI will soon allow organizations to sell your decisions before you have even made them, or even control them.

The GDPR does, in theory, already prevent some brokering. Article 25 is titled ‘Data protection by design and by default’, and requires that data be collected and processed only for a specific, stated purpose.

The very fact that brokering continues—in a manner that some view as non-compliant—demonstrates both the challenge in legislating effectively and the need for more focused, comprehensive rights.

The idea of an opacity right is not purely utopian, these challenges notwithstanding. Most notably, a 2017 policy document commissioned by the council of Europe explicitly recommends a right to not be electronically measured, analyzed or coached.

The authors contextualize the proposal by highlighting individual defenselessness to mass surveillance, contending that it represents a fundamental affront to the principles of the rule of law. Their summation of the challenge is as follows:

“There has been little debate about the accumulative effect of mass surveillance. Instead, triggered by specific applications and incidents, ‘mini debates’ about a certain topic have been organized, and the outcome of each debate is a balancing act that mostly favors national security or economic interests. The sum of the debates, however, is the gradual but steady dissolving of privacy and anonymity for the individual.”

One existing negative right has also enshrined its way into popular culture. The US’s Fifth Amendment, while only applicable in criminal contexts, makes a compelling case that it is possible—and deeply important—not to regard silence as inherently suspicious.

Today the burden is on you to prove that your opacity is harmless.

Rights exist so that you do not have to argue, each time, for the legitimacy of your everyday freedoms. And without an explicit right to your opacity, as the two earlier examples show, even those rights you do already have can be called into question.

The legitimacy of dissent, eccentricity, and of ordinary, unrecorded life must be celebrated. Lawmakers must prevent a world that treats silence as deviance.

Until then, saying “no” remains one of few tools you have. Not from a place of paranoia, but rather as a claim to a simple freedom: to live, even merely occasionally, without leaving a trace.