This is Henry D Thoreau in his diary on July 10, 1840:

“ All a man’s privacy is in his eye, and its expression he cannot alter any more than he can alter his character. So long as we look a man in the eye, it seems to rule the other features, and make them, too, original. When I have mistaken one person for another, observing only his form, and carriage, and inferior features, the unlikeness seemed of the least consequence, but when I caught his eye, and my doubts were removed, it seemed to pervade every feature.”

It is a remarkable passage, and difficult in the third sentence. Thoreau seems to be saying that it is easy to mistake someone for someone else, unless you have the key to the individual, the look in his eye, which then makes someone unique, original and unmistakeable. It is interesting how he says the “unlikeness seemed of the least consequence” because it suggests how little you might care unless you care quite a lot about what he calls privacy.. We are familiar with that least consequence. And of course, it is also interesting that Thoreau says that there is something about the expression in the eye which cannot be altered – something which iris biometrics also claim, perhaps with less certainty.

What is notable about Thoreau is the confidence of his reading of identity and personality (confident that an original exists), a confidence which is of its time and place – it is a peculiarly American statement conflating personal and cultural identity, where the dominant stress is on the personality side, the isolate American ego. And, as Americans at that time did, it is a reading untouched by the weight of history and society.

We are in a different place and time, but perhaps the permanent difference between the American and the English or British tradition, is that in this tradition the idea and the practice of privacy was located in the cultural and collective identity and reflected the ingrained conservatism, eccentricities and hierarchies of British society; and was not located, where we place it now, in personality and personal identity.

And while it may be that the rationalist universalist approach which we find in both Article 8 Rights and Data Protection law fits the changed country and the homogenous culture in which we now live, it doesn’t, it often seems to me, fit with the idiosyncrasies and peculiarities of the national tradition.

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