Bad Question!

Abstract

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 embarrassed about it. I also know that when things aren't going well for Danny, he never wants to tell me about it. When Danny walks into my office, I ask him, “How is the senior thesis going?” When we intentionally create loud silence contexts, (you might think), we undermine our interlocutors' capacity to choose whether or not to reveal some information to us. Since I do not have a right that you refrain from putting me in loud silence contexts, I do not have a right that you refrain from undermining my capacity to choose whether or not to reveal information to you. If this sounds like an uncomfortable conclusion, I think it is only because it is easy to confuse this claim with a related one. I have a right that you refrain from undermining my capacity to choose whether to tell you some information. You may not coerce me into telling you something, because, as a general matter, you may not coerce me to do anything. The difference is that tellings are always actions that I intentionally perform, whereas revealings needn't be. When I opt out in a loud silence context, I reveal something to you only in the sense that my action provides you with certain kinds of evidence. The claim under consideration is more restricted: 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 proposal meshes with the intuitive thought that morality provides us special safeguards over “sensitive” information. In what sense does the bad questioner undermine her victim's control over her private information? Here's a first pass thought. Before Jacqueline said anything, Camila could permissibly choose to reveal her diagnosis to Jacqueline, and she could permissibly choose to keep it to herself. After Jacqueline asks her question, Camila cannot permissibly keep the information to herself, because she cannot permissibly lie to Jacqueline. (Bear with me on this assumption.) Camila has lost normative control over whether or not to reveal her diagnosis. And Camila lost this control because Jacqueline deliberately conspired to constrain Camila's permissible option set in just this way. Here's an analogy. Suppose Camila lives in an isolated house on a mountain road. Jacqueline is desperate to see the inside of Camila's living room. But Camila, who is shy and not a fan of Jacqueline, refuses to invite Jacqueline into her home. So Jacqueline concocts an elaborate and desperate plan. During a snowstorm, Jacqueline goes hiking in the woods near Camila's house. Jacqueline wears inadequate winter gear and doesn't bring a phone. Jacqueline intentionally brings herself near hypothermic death. She then walks to Camila's house, rings the doorbell, and begs for Camila to let her into her house. It seems to me that Camila is obligated to permit Jacqueline to enter her house. (And if Camila doesn't voluntarily invite Jacqueline in, it seems that Jacqueline can permissibly force her way indoors to save her life.) In carrying out this manipulative scheme, Jacqueline deliberately conspires to undermine Camila's normative control over her property. In entering Camila's house, Jacqueline does not violate Camila's privacy rights, at least not in the traditional sense. (Even if she forces her way inside, Jacqueline at best infringes them.) But Jacqueline's manipulative scheme clearly fails to respect Camila's underlying and legitimate interest in maintaining certain kinds of control over who enters her home and when. Similarly, Jacqueline's bad question might not violate Camila's privacy rights in the traditional sense. But her bad question is its own kind of manipulative scheme, which likewise fails to respect the interests that ultimately ground Camila's privacy rights. Unfortunately, this kind of account stumbles early on. For Camila loses normative control in the relevant respect only if Camila cannot permissibly lie to Jacqueline about her diagnosis. This assumption is, at best, dubious. First, it just seems plainly clear that in response to and because of Jacqueline's inappropriate question, Camila can lie to Jacqueline. If Camila did lie to Jacqueline, Jacqueline would not have a legitimate complaint against Camila. Jacqueline would have no one to blame but herself. And if you were Camila's friend, and if Camila were fretting to you about whether to lie or not in such a situation, you'd almost certainly counsel her, “Jacqueline, in putting that question to you, gave up her right to a good faith reply.” Even a stringent moralist like Kant, in his Lectures on Evil, acknowledges that “if I cannot save myself by maintaining my silence, then my lie is a weapon of defence.”19 For otherwise, “we might often become victims of the wickedness of others who were ready to abuse our truthfulness.”20 White likewise observes, “If dodging the question or refusing to answer would allow [Jacqueline] to deduce her secret, she may lie…That the lie is permissible and the question impermissible is clearly no coincidence.”21 There is more to say in favor of this viewpoint. In the hypothermia scheme, Jacqueline manipulates the situation in order to dramatically change her underlying interest in accessing Camila's house: her life depends upon it. If Jacqueline doesn't gain access to her house, she will die. In the bad question scheme, Jaqueline's question doesn't change the nature or urgency of her interest in learning Camila's diagnosis. If Camila were to respond with the lie, “I don't have cancer,” her lie would not set Jacqueline's interests back any more than would her out-of-the-blue assertion, “I don't have cancer.” This is not to say that these lies don't set Jacqueline's interests back. Jacqueline, like all agents, has an interest in gaining knowledge and avoiding false beliefs, and lies undermine that interest. But given Jacqueline intentionally conspired to bring her interest in avoiding false beliefs into conflict with Camila's interest in protecting her privacy and given that her underlying interests have otherwise not changed, it would seem perverse for morality to decide in Jacqueline's favor. Here's a last-ditch effort to save the normative control explanation. Let us concede that it is permissible for Camila to lie to Jacqueline, and it is permissible in part or in whole because Jacqueline intentionally asked Camila a question that created a loud silence context about her private information. Still, you might think, Jacqueline conspired to create a situation in which Camila infringed Jacqueline's rights—justifiably so, of course, but an infringement, nonetheless. And as infringements sometimes do, that might leave a residue. Camila might owe Jacqueline some kind of “compensation”—perhaps an apology, if Jacqueline ever learns the truth, for example, or more metaphorical compensation, in the form of a pang of conscience or regret. Still, even if we concede this point, could this plausibly explain the facts that we aim to vindicate? In creating a situation in which Camila has no reasonable choice but to infringe Jacqueline's right against deception, has Jacqueline thereby violated Camila's privacy? To compel me to infringe your right R in order to protect my right R* does not seem to thereby violate my right R* or even to disrespect the interests that ground my right R*. It is rather to disrespect my interest in not infringing your rights. We have been investigating a certain analysis of prying question, one on which Jacqueline intrudes insofar as she intentionally undermines Camila's normative control over the disclosure of her private information. That analysis has floundered on a difficult-to-defend presupposition. If this isn't the correct story about why Jacqueline's question intrudes, what is? The problem, I will argue, is that we have misunderstood the sense in which Camila can't conceal her information from Jacqueline. It's not that Camila cannot permissibly conceal her information from Jacqueline. Rather, Camila cannot conceal her information from Jacqueline in a more flat-footed sense. She is not able to do so. She lacks the skill it would require. Jacqueline has undermined Camila's effective control over her private information and, in doing so, has wronged her. Or so I will argue in Section IV. In this section, I will set the stage for that argument. Here I introduce a more realistic vision of conversation. Face-to-face conversations occur rapidly, between flesh-and-blood people staring into each other's eyes, with only imperfect access to their knowledge and imperfect self-control, and with an extraordinary capacity for mind-reading. Given this, conversation renders us uniquely vulnerable to each other. Ask me just the right questions, in just the right way, and you can turn me into an open book—without inducing a loud silence context at all. To describe these vulnerabilities with greater precision, I will also introduce a suite of new terminology, grounded in the work of Goffman. But first, I want to introduce a real-life Camila, an anonymous woman who wrote into an advice column a few years ago. To make it easy to refer to her, I'm going to call her Rose. By studying the advice columnist's reply and Rose's overall predicament, I will argue that loud silence contexts are much more fraught and interesting than the previous discussion suggests. On behalf of all new moms, please help with this question. Why does every woman in the world, it seems, feel entitled to ask new moms if they are breastfeeding their babies? How should new moms respond politely to this question? If you say yes, you may or may not be lying. If you say no, you will be judged. If you give an evasive answer, people will assume you are not and you will be judged as well.22 Surely, Rose has a special prerogative (co-parent excluded) to determine whether, when, how, and to whom to reveal how she feeds her baby. To make the case interesting for our purposes, let us stipulate that Rose is bottle-feeding, not breastfeeding. Just as Mickey induced a loud silence context for Shavar and Jacqueline for Camila, Rose is complaining that other women (let's call them “Nosy Noras”) are inducing a loud silence context for her. If you will forgive me for not answering that question, I'll forgive you for asking. If that were any of your business, you would know already! Thank you; the baby is being well fed. It is kind of you to worry about him.23 Both Miss Manners and Abby seem to believe that when Nosy Nora asks Rose, “How do you feed your baby?” Nora hasn't induced a loud silence context at all. If Rose opts out the correct way, Rose can opt out silently. To opt out the correct way, of course, Rose must do more than mouth the correct words in the correct order. To pull off any of these retorts, Rose must say them with the appropriate conviction, panache, and grace. She must transform the guilty and abashed, “I'd rather not to say,” which reveals too much, into the principled and affronted, “I will not say,” which, in the best case, reveals nothing. Earlier, we stipulated that Jacqueline and Camila's case was not like this. But exactly in what sense “couldn't” Camila silently opt out? If Camila had said, with the appropriate conviction, panache, and grace and with the right suggestion of affronted dignity, “If you forgive me for not answering that question, I'll forgive you for asking,” would Jacqueline have learned that Camila has cancer? I don't think so. The sense in which Camila couldn't silently opt out is exactly the same sense in which Rose, prior to reading the Dear Abby and Miss Manners columns, couldn't silently opt out. What they both lacked was not the option to reveal nothing but the ability to cognize and execute that option. They lacked a capacity, ability, or skill. If Rose and Camila thought for long and hard enough about how to answer their interlocutors' questions, they could, in principle, arrive at Dear Abby's and Miss Manners' advice. There is nothing exotic about this. We have all thought up ingenious, sizzling comebacks only hours after our need for them has passed. Maybe we were mulling over the conversation in our head or describing it to friends. Or maybe the right answer just spontaneously “bubbled up” from our subpersonal consciousness, in the way that the correct answer to exam questions used to spontaneously “bubble up” to me hours after I had submitted the test. In all of these cases, what we lack is not the knowledge, per se, but access to the relevant knowledge. We can't retrieve and so can't make use of what we know in the right time frame. It's worth emphasizing exactly how fast conversation moves and how communicatively perilous delays are. As some of us have found out the hard way, even memorizing a witty comeback ex ante is no guarantee that you can access the knowledge with the right speed in the right context. From empirical linguistic anthropology, we now know that in face-to-face conversation, an addressee has exactly 1 s, from the end of her interlocutor's turn, in which to begin speaking.24 Anything longer is perceived as awkward, conversationally incompetent, or deeply communicatively significant. You ask me a question in Q&A, and I look at you for 3 s before saying anything at all. What has happened? We want to say: I was either dumbstruck by your question, and so you got one over on me, or I was shocked by the badness of your question, in which case my pause is getting one over on you. Either way, this isn't something I normally want to happen. But even this undersells conversation's speed.25 For within the 1 s window, delays of only 300 ms already carry information about the addressee's mental state. At only 600 ms, you will perceive my delay as intentional. We know that interlocutors reliably decode and have introspective access to the information that these fraction-of-a-fraction of a second delays carry (although they may not know how they know it). A co