Bad Question

Individuals...exude expressions.1 Performers can stop giving expressions but cannot stop giving them off.2 Defense attorney Mickey Haller (and protagonist of the fictional series Lincoln Lawyer) has his witness exactly where he wants him.3 Anton Shavar isn't on trial. But Haller wants to insinuate that Shavar committed the murders that Haller's client stands accused of committing. First, he needs to insinuate that Shavar knows how to orchestrate a hit. Haller asks about Shavar's former job: “I have a background in formal intelligence in Israel.” So he was in the Mossad? Shavar replies: “I did not say that.” Haller repeats the question: “Were you in the Mossad? An organization which is known to carry out targeted assassinations?” The prosecution objects. Then a man at the back of the court room stands up. He announces that he is Mr. Shavar's counsel and that “Mr. Shavar's past employment in Israel, whatever it may be, has no bearing on this case. It could jeopardize the national security of one of this country's closest allies.” Haller smirks. Bingo. “It's all right, Your Honor, I'll take that as a yes.” Just by asking, “Were you in the Mossad?” Haller had trapped Shavar. All of his available options became bad. Shavar could tell the truth, but the cost would be too high. Shavar knew that Haller would use this information to smear his good name. Shavar could lie, but the risk would be too high: under oath, to lie is to commit a felony offense. Or he could stay silent. But that too was a bad choice. That Shavar stayed silent revealed that Shavar had good reason to stay silent. And, as Haller's quip “I'll take that as a yes” dramatized, Shavar thereby revealed that he worked for Mossad.4 Courtrooms have elaborate rules to attempt to defuse what I call the problem of loud silence. In Lincoln Lawyer, the judge instructs the jury to disregard Haller's final quip. If the jury does what it should, it will deliberate without taking into account the information that Haller extracted through Shavar's silence. But without formal rules of evidence and deliberation, everyday interactions offer no such kindness. The right sort of question put to us, in the right sort of way, can leave us with only three bad options: to lie; to speak truthfully and reveal what we do not want to reveal; and to stay silent and reveal what we do not want to reveal anyway. I call this the problem of loud silence. The right sort of question, put the right sort of way, can do worse still. A tell-tale pause, a barely perceptible facial expression, a subtle vocal change, an odd word choice: all have the potential to reveal sensitive information. You might ask me a prying question, not because you want to know what I will say but because you want to see how I will react. Face-to-face conversation, then, renders us uniquely informationally vulnerable to each other. We are porous beings, our information often escapes from us against our will, and we can exploit this vulnerability in order to extract information from each other. Against a sufficiently powerful mind control machine, I am defenseless, and there is nothing I can do to improve my defenses. But against prying questions, I can martial some protection, and I can improve that protection over time. As any good poker player knows, the more I learn to bring my “tells” under voluntary control, that is, the more that I learn to manage the information that I both voluntarily and non-voluntarily exude, the less vulnerable I become to your questions. Drawing from the work of mid-century sociologist Goffman,5 I call this latter capacity poise. In the arms race between those who would pry and those who would have poise, what safeguards does morality offer? In particular, when is a prying question not just boorish, uncouth, or obnoxious but genuinely wrongful? And even more particularly, when does a prying question not just wrong but wrong because it violates the addressee's privacy rights? In other words, when does an intrusive question not just offend but intrude? I propose two different principles. (I remain neutral on which one is correct.) The first principle: if p is my private information, then I have a right against you asking me p? iff, in asking me p?, you thereby undermine my effective control over whether, when, and how to reveal p to you. The second principle: if p is my private information, then I have a right against you asking me p? iff you could reasonably expect that in asking me p?, you would thereby undermine my effective control over whether, when, and how to reveal p to you. (This is an approximation, actually. There are some book-keeping issues I consider later.) These principles say that you may not ask me questions about private matters that also force private information out of me. I can force information from you even if I do not coerce you to answer my question. Compare two ways that I can force you to remain seated. I can say, “Sit there, or I'll shoot.” That's coercion. Or I can press my hand onto your shoulder, so that you cannot physically rise. Interestingly, we do not have a general right against prying questions. If you ask me a question about where I would like to eat and you thereby force information out of me, you have not violated any of my rights. I will assume, at the outset, that our intuitions are right. Bad questions do violate our privacy rights. The question is: how could this be possible? Some “conversational libertarians” will not like this starting point.6 Conversational libertarians think that bad questions can be tacky or boorish. But they do not think that bad questions can be wrongful, or at least, not wrongful because they are rights violating. I ask for such readers' patience. My analysis of why bad questions violate our privacy rights also constitutes an argument that they do. I also assume, at the outset, that we do have a class of rights that deserve the name privacy rights. These privacy rights function to protect “my” information. My medical diagnoses, sexual history, and religious background, but not the identity of the university at which I work, are “my” information in this special sense. We have a special and legitimate interest in maintaining a kind of discretionary control over to whom, when, whether, and how to reveal “our” information. This interest, in turn, grounds and justifies our privacy rights.7 And this interest may be grounded in or explained or justified by a more basic interest or capacity still. This vision has its skeptics. Famously, Thomson points out that many of the paradigmatic “privacy violations” are also other sorts of rights violations.8 If I break into your laptop to read your love letters to Justin Bieber, I may have violated your privacy rights, but I have definitely violated your property rights. If a man on the subway pulls my skirt down, he may have violated my privacy rights, but he's definitely violated my right against bodily trespass. If that's correct, then what work is there left for privacy rights to do? Unlike the privacy violations that typically exercise moral philosophers, bad questions do not seem to violate any rights beyond my privacy rights. For the privacy skeptic, then, one take-away from my paper is that privacy rights have some real work to do after all. I have arranged this paper in the following way. In the next section, I will raise a skeptical challenge for myself and for White's recent discussion of prying questions.9 Though prying questions might express disrespect or entitlement (the challenge goes), surely they are not rights violations. A question like, “Do you have cancer?” is better analogized to a clueless or entitled request for a favor, not to peeping through a curtain. In order to respond to the worry, in Section III, I introduce three key concepts, each inspired by the work of Goffman: informational self-control; poise; and mentalism. In the fourth section, I use these concepts to defend what I call the Bad Question Principle. I suggest that the Bad Question Principle flows from the same interests that ground our privacy rights and show why the preceding discussion should convince even the privacy skeptic that we have privacy rights. Then I distinguish two different interpretations of the BQP and draw out the consequences of each interpretation. In the final section, I tease out some further questions that my analysis raises. I ask how far our rights against prying-like behavior extend. I argue it is sometimes permissible to ask via email what we cannot ask face-to-face. I show that my discussion may reveal an unexpected function of certain politeness norms, which may in turn ground (some of) their value. And I close by considering the value of our porousness, specifically in response to questions. Our imperfect control over our poise is central, I suggest, not just for our capacity to project authenticity but also to our capacity to engage in certain kinds of politeness strategies. Camila is suffering from early stage cancer. She is a private person, however, and she isn't ready to tell her coworkers. She especially isn't ready to tell Jacqueline, the departmental busybody. Unfortunately, Jacqueline has noticed that Camila has been looking sicker and sicker; that she has been taking time off work; and that she often cries in the bathroom. And, like many busybodies, Jacqueline just has a knack for knowing what's wrong with others. Jacqueline stops by Camila's office and asks, out of the blue, “Do you have cancer?” Compare this all to the way we might describe merely boorish, obnoxious, and out-of-touch requests. Suppose that my undergraduate student, Tommy, asks me, for no particularly good reason, “Can you read and return this draft to me in an hour?”11 The request would irritate me. It may even anger me. I'd ask myself, “Who does Tommy think he is?” I'd wonder why Tommy feels so entitled to my time or where he found the chutzpah to ask this. For all that, I would not accuse Tommy of prying, probing, putting me under a microscope, or otherwise violating my rights. His request might have expressed something morally objectionable, but it did not expose me. Say that a question is expressively problematic iff, in asking it, the speaker expresses something morally objectionable. Tommy's request is expressively problematic because it expresses a kind of entitlement to my time. Say that a question pries or intrudes iff, in asking it, the speaker violates the addressee's privacy rights. Jacqueline's question may be expressively problematic, and expressively problematic questions may or may not wrong, some or all of the time. But if expressively problematic questions (per se) wrong at all, they wrong in virtue of what they communicate.12 Here I am not interested in what Jacqueline's question communicates or whether requests can wrong because of what they communicate. I am interested in why (it seems that) Jacqueline's question wrongs because it intrudes.13 Consider this analogy. You ask me, out of the blue, “Hey, can I borrow your blender?” Let's stipulate that this is genuinely a request, not a threat in disguise. The question, “Hey, can I borrow your blender?” is really the question, “Will you waive your property rights with respect to me and your blender?” Similarly, (you might reasonably think) the question, “Do you have cancer?” is really the question, “Will you waive your privacy rights with respect to me and the matter of whether you have cancer?” A request to waive a right R might be expressively problematic. It might even be wrongfully expressively problematic. But an expressively problematic request to waive a right R doesn't constitute a violation of R itself.14 Here's one disanalogy between the question, “Hey, can I borrow your blender?” and Jacqueline's question, “Do you have a cancer?” which (following White) I've built into the case itself. If you ask me, “Will you waive your property rights with respect to me and your blender?” I can tell you, “No,” and that will be the end of it. If Jacqueline were to ask Camila, “Will you waive your privacy rights with respect to me and the matter of whether you have cancer?” and Camila says, “No,” then Jacqueline may in fact get what she wants. For sometimes, to decline to waive one's privacy rights—whether by saying, “It's none of your business,” or “I won't answer,” or pointedly changing the subject—just is to give away one's private information. Following White, let's build some stipulations into the case.15 Camila finds herself with three options. She can tell Jacqueline the truth and so reveal what she does not want to reveal. She can stay silent and again reveal what she does not want to reveal. Or she can lie. Camila is staring down the same gun as Shavar. In other words, Jacqueline has created a loud silence problem for Camila. The question I will now investigate is this: just in virtue of creating a loud silence problem for Camila, has Jacqueline violated Camila's privacy rights? In other words: can we use the nature of loud silence problems to vindicate our intuition that Jacqueline has violated Camila's privacy rights? I will temporarily answer, “Yes,” and do my best to develop this line of response. I will ultimately reject it as misguided, but the errors will prove instructive for what's to come. Before doing this, let me add a few clarificatory remarks. Until now, I've described speakers as “staying silent” in response to a question. When describing courtrooms, that makes sense. On the stand, we can plead the fifth. Our attorney can object. In real speech situations, we rarely “stay silent” by literally staying silent. To use a term from H.P. Grice, say that a speaker who is “staying silent” in my sense opts out.16 We can opt out of conversations altogether or opt out of a conversation's subcomponents. I might say, “Sorry, kid, I'm busy,” to make clear that I'm not interested in conversing with you at all. When I opt out of a question you have posed to me, I make clear that I'm not interested in providing you an answer or, if I do not know the answer, telling you that I do not know the answer. (But note that a curt “Sorry, don't know”—delivered to the suspicious person who has just approached you, before she has said much of anything—can constitute an opt-out move.) Opt outs can range from the straightforward, “I'd rather not answer that,” to the facetious, “What lovely weather we're having,” to the disapproving, “I didn't hear you say that.” Once I responded to an obnoxious, out-of-the-blue question, “Are you carrying student loan debt? How much?” with a terse, “How much do you weigh?” Say that when a speaker faces a loud silence problem, she is in a context in which her decision to opt out of the question p? or the conversation altogether would significantly and justifiably raise or lower her interlocutor's credence that p.17 “Significantly” is a weasel word. I use it to emphasize that our silence can be problematically “loud” even when it licenses only very secure suspicions. But for the sake of simplicity, I will just focus on cases in which opting out generates knowledge. Say also that a speaker who asks p? induces a loud silence context when her act makes it the case that her interlocutor faces a loud silence problem. We can induce loud silence contexts intentionally and unintentionally. The claim under consideration is not the claim that whenever I ask someone p? and so induce a loud silence context for her, I thereby wrong her. If this were the claim, then we could—quite easily, without reaching for recherché scenarios—generate an overwhelming number of apparent counter-examples. I might ask my co-teacher, “Do you really like the Twilight movies?” and create a loud silence context of him. In fact, I did this recently, as banter, and I do not think that either of us think that I wronged him. Danny is my undergraduate student, and he's working with me on his senior thesis. I suspect that things aren't going well for Danny, and he's about it. I also know that when things aren't going well for Danny, he wants to tell me about it. When Danny into my I ask “How is the senior When we intentionally create loud silence (you might we undermine our capacity to whether or not to reveal some information to I do not have a right that you from putting me in loud silence I do not have a right that you from my capacity to whether or not to reveal information to you. If this like an I think it is only because it is to this claim with a I have a right that you from my capacity to whether to tell you some information. You may not coerce me into telling you as a general you may not coerce me to do The is that are that I intentionally When I opt out in a loud silence I reveal something to you only in the sense that my you with certain kinds of The claim under consideration is more whenever I ask someone p? and so induce a loud silence context for her with respect to her private information, I thereby wrong her. This with the that morality us special safeguards over information. In what sense does the bad undermine her control over her private Here's a first Before Jacqueline said Camila could to reveal her to Jacqueline, and she could to it to Jacqueline asks her question, Camila cannot the information to because she cannot lie to with me on this Camila has control over whether or not to reveal her And Camila this control because Jacqueline to Camila's permissible in just this way. Here's an analogy. Suppose Camila in an on a Jacqueline is to see the of Camila's But Camila, who is and not a of Jacqueline, to Jacqueline into her So Jacqueline an elaborate and a Jacqueline in the Camila's Jacqueline and doesn't bring a Jacqueline intentionally herself She then to Camila's the and for Camila to let her into her It seems to me that Camila is to Jacqueline to her if Camila doesn't voluntarily Jacqueline it seems that Jacqueline can force her way to her In carrying out this Jacqueline to undermine Camila's control over her In Camila's Jacqueline does not violate Camila's privacy rights, at not in the sense. if she her way Jacqueline at best But Jacqueline's to respect Camila's and legitimate interest in maintaining certain kinds of control over who her and Similarly, Jacqueline's bad question might not violate Camila's privacy rights in the sense. But her bad question is its kind of which to respect the interests that ultimately ground Camila's privacy rights. Unfortunately, this kind of account early For Camila control in the respect only if Camila cannot lie to Jacqueline about her This is, at First, it just seems clear that in response to and because of Jacqueline's question, Camila can lie to If Camila did lie to Jacqueline, Jacqueline would not have a legitimate against Camila. Jacqueline would have no one to but And if you were Camila's and if Camila were to you about whether to lie or not in such a counsel her, in putting that question to you, her right to a good a like in his on that I cannot myself by maintaining my then my lie is a of For might often become of the of who were ready to our the question or to answer would to her she may the lie is permissible and the question is no There is more to say in of this In the Jacqueline the in order to her interest in Camila's her it. If Jacqueline doesn't to her she will In the bad question question doesn't the nature or of her interest in Camila's If Camila were to respond with the lie, “I don't have her lie would not Jacqueline's interests back any more would her out-of-the-blue “I don't have This is not to say that these don't Jacqueline's interests Jacqueline, like all has an interest in and and undermine that But Jacqueline intentionally to bring her interest in into with Camila's interest in her privacy and that her interests have otherwise not it would seem for morality to in Jacqueline's Here's a to the control us that it is permissible for Camila to lie to Jacqueline, and it is permissible in or in because Jacqueline intentionally Camila a question that created a loud silence context about her private information. you might Jacqueline to create a in which Camila Jacqueline's of but an And as sometimes that might leave a Camila might Jacqueline some kind of an if Jacqueline the truth, for or more in the of a of or even if we this could this the that we to In creating a in which Camila has no but to Jacqueline's right against has Jacqueline thereby violated Camila's To me to your right R in order to protect my right does not seem to thereby violate my right or even to disrespect the interests that ground my right It is rather to disrespect my interest in not your rights. We have been a certain analysis of prying question, one on which Jacqueline intrudes as she intentionally Camila's control over the of her private information. That analysis has on a If this isn't the about why Jacqueline's question what The problem, I will is that we have the sense in which Camila her information from not that Camila cannot her information from Camila cannot her information from Jacqueline in a more sense. She is not to do She the it would Jacqueline has Camila's effective control over her private information in doing has wronged her. Or so I will argue in Section In this section, I will the stage for that Here I introduce a more vision of Face-to-face conversations between staring into each with only imperfect to their and imperfect and with an capacity for this, conversation renders us uniquely vulnerable to each other. me just the right questions, in just the right way, and you can turn me into an a loud silence context at all. To describe these with I will also introduce a of grounded in the work of But I want to introduce a Camila, an who into an a few To make it to to her, I'm going to call her the and I will argue that loud silence contexts are much more and the discussion On of all with this question. does in the it entitled to ask if they are their How should respond to this If you say you may or may not be If you say you will be If you give an answer, will you are not and you will be as has a special to whether, when, and to to reveal how she her To make the case for our let us stipulate that is not Just as Mickey a loud silence context for Shavar and Jacqueline for Camila, is that other call them are a loud silence context for her. If you will me for not that question, I'll you for If that were any of your you would know the is well It is kind of you to about and seem to that when asks “How do you your a loud silence context at all. If opts out the way, can opt out To opt out the way, of do more the in the To off any of these say them with the and She the and “I'd rather not to which too into the and “I will not in the best we that Jacqueline and Camila's case was not like this. But exactly in what sense Camila opt If Camila had with the and and with the right of you me for not that question, I'll you for would Jacqueline have that Camila has I don't think The sense in which Camila opt out is exactly the same sense in which to the and opt they both was not the to reveal nothing but the to and that a or If and Camila for and about how to answer their questions, they in at and There is nothing about this. We have all only after our for them has we were over the conversation in our or describing it to Or the right answer just from our in the way that the answer to questions to to me after I had the In all of these what we is not the but to the knowledge. We and so make use of what we know in the right time exactly how conversation and how As some of us have found out the way, even a is no that you can the with the right in the right we now know that in conversation, an has exactly from the end of her interlocutor's turn, in which to is as or You ask me a question in and I at you for before at all. has We want to I was either by your question, and so you one over on me, or I was by the of your question, in which case my is one over on you. way, this isn't something I want to But even this conversation's For the of only carry information about the addressee's only you will my as We know that and have to the information that these of a second carry they may not know how they know A

Epistemology · Political science · Sociology · Intelligence, Security, War Strategy · Jewish and Middle Eastern Studies · Law, Rights, and Freedoms · Philosophy

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