Informational Privacy
More systematic written discussion of the concept of privacy is often said to begin Ninth the famous essay by Samuel Warren and Louis Brandeis titled “The Right to Privacy’ (Warren and Brandeis, 1890).
Citing “political, social, and economic changes” and a recognition of “the right to be let alone” they argued that existing law afforded ay to protect the privacy of the individual, and they sought to explain the nature and extent of that protection. Focusing in large part on the press and publicity allowed by recent inventions such as photography and newspapers, but referring as Nell to violations in other contexts, they emphasized the invasion of privacy brought about by public dissemination of details relating to a person’s private life.
Warren and Brandeis felt a variety of existing cases could be protected under a more general right to privacy which would protect the extent to which one’s thoughts, sentiments, ND emotions could be shared with others. Urging that they were not attempting to protect the items produced, or intellectual property, but rather the peace of mind attained with such protection, they said the right to privacy was based on a principle of “inviolate personality’ which was part of a general right of immunity of the person, ‘the right to one’s personality’ (Warren and Brandeis 1890, 195, 215).
The privacy principle, they believed, was already part of common law and the protection of one’s home as one’s castle, but new technology made it important to explicitly and parallel recognize this protection under the name of privacy. They suggested that limitations of the right could be determined by analogy with the law of slander and libel, and would not prevent publication of information about public officials running for office, for example. Warren and Brandeis thus laid the foundation for a concept of privacy that has come to be known as control over information about oneself.
Although the first cases after the publication of their paper did not recognize a privacy right, soon the public and both state and federal courts were endorsing and scribe and define the new right of privacy being upheld in tort law, William Propose rote in 1969 that what had emerged were four different interests in privacy. Not claiming to be providing an exact definition, and admitting that there had been confusion and inconsistencies in the development of privacy protection in the law, Propose nevertheless described the four “rather definite” privacy rights as follows:
- Intrusion upon a person’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about an individual.
- Publicity placing one in a false light in the public eye.
- Appropriation of one’s likeness for the advantage of another (Propose 1969, 389).
Propose noted that the intrusion in the first privacy right had expanded beyond physical intrusion, and pointed out that Nearer and Brandeis had been concerned primarily with the second privacy right. Nevertheless, Propose felt that both real abuses and public demand had led to general acceptance of these four types of privacy invasions.
On his view, answers to three main questions were at the time as yet unclear:
- whether appearance in public implied forfeiture of privacy,
- whether facts part of a “public record” could till be private,
- whether a significant lapse of time affected the privacy of revelations.
Note that Warren and Brandeis were writing their normative views about Nat they felt should be protected under the rubric of privacy, whereas Propose was describing what courts had in fact protected in the 70 years following publication of the Warren and Brandeis paper.
Thus it is not surprising that their descriptions of privacy differ. Because the Supreme Court has been explicit in ruling that privacy is a central reason for Fourth Amendment protection, privacy as control over information bout oneself has come to be viewed by many as also including protection against unwarranted searches, eavesdropping, surveillance, and appropriation and misuses of one’s communications. Thomas Angel (2002) gives a more contemporary discussion of privacy, concealment, publicity and exposure.
The Constitutional Right to Privacy
In 1965 a quite different right to privacy, independent of informational privacy and the Fourth Amendment, was recognized explicitly by the Supreme Court. It is now commonly called the constitutional right to privacy. The right was first announced in the Griswold v. Connecticut (381 U. S. 479) case, which overturned convictions of the Director of Planned Parenthood and a doctor at Yale Medical School for dispersing contraceptive related information, instruction, and medical advice to married persons.
The constitutional right to privacy was described by Justice William O. Douglas as protecting a zone of privacy covering the social institution of marriage and the sexual relations of married persons. Despite controversy over Douglas’ opinion, the constitutional privacy right was soon cited to overturn a ban against Interracial marriage, to allow individuals to possess obscene matter in their own moms, and to allow distribution of contraceptive devices to individuals, both married and single. The most famous application of this right to privacy was as one electrification of abortion rights defended in 1973 in Roe v. Wade (410 U. S. 13) and subsequent decisions on abortion.
While Douglas vaguely called it a “penumbral” right “emanating” from the Constitution, and the Court has been unable to clearly define the right, it has generally been viewed as a right protecting one’s individual one’s family, life and lifestyle. Which personal decisions have been protected by this rivalry right has varied depending on the makeup of the Court. In 1986 in Bowers v. Hardwire (478 U. S. 186) privacy was not held to cover a ban on anti-sodomy’s laws in Georgia, despite the intimate sexual relations involved.
Criticism of the constitutional right to privacy has continued, particularly in the popular press, Roe v. Wade may be in Jeopardy, and many viewed the Bowers decision as evidence of the demise of the constitutional right to privacy. Yet in 2003 in Lawrence v. Texas (538 U. S. 918), the Supreme Court ruled 5-4 that a Texas statute making it a crime for two people of the name sex to engage in certain intimate behavior violated the guarantee of equal protection and vital interests in liberty and privacy protected by the due process clause of the Constitution, thus overruling Bowers v. Hardwire. Jean L. Cohen (2002) gives a theoretical defense of this inclusive view of the constitutional right to privacy.
She defends a constructivist approach to privacy rights and intimacy, arguing that privacy rights protect personal autonomy and that a constitutionally protected right to privacy is indispensable for a modern conception of reason and her interpretation of autonomy.
One way of understanding the growing literature on privacy is to view it as divided into two main categories, which we may call reductionism and coherence’s. Reductionism are generally critical of privacy, while cornerstones defend the coherent fundamental value of privacy interests. Ferdinand Schema (1984) introduced somewhat different terminology which makes it easier to understand this distinction. According to Schema, a number of authors have believed … There is something fundamental, integrated, and distinctive about the concerns traditionally grouped gather under the rubric of “privacy issues.
In opposing this position, some have argued that the cases labeled “privacy issues” are diverse and disparate, and hence are only nominally or superficially connected. Others have argued that when privacy claims are to be defended morally, the Justifications must allude ultimately to principles which can be characterized quite independently of any concern with privacy. Consequently, the argument continues, there is nothing morally distinctive about privacy. I shall refer to the position that there is something common to most of the privacy claims as the “coherence thesis.
The position that privacy claims are to be defended morally by principles that are distinctive to privacy I shall label the ‘distinctiveness thesis. ” Theorists who deny both the coherence thesis and the distinctiveness thesis argue that in each category of privacy claims there are diverse ‘aloes at stake of the sort common to many other social issues and that these values exhaust privacy claims. The thrust of this complex position is that we could do quite Nell if we eliminated all talk of privacy and simply defended our concerns in terms of standard moral and legal categories (Schema 1984, 5).
These latter theorists, who reject both Coachman’s coherence thesis and distinctiveness thesis, may be referred to as reductionism, for they view what are called privacy concerns as analyzable or reducible to claims of other sorts, such as infliction of emotional distress or property interests. They deny that there is anything useful in considering privacy as a separate concept. They conclude, then, that there is nothing coherent, distinctive or illuminating about privacy interests.
On the other side, more theorists have argued claims that have been called privacy interests. On this view, privacy has value as a coherent and fundamental concept, and most individuals recognize it as a useful concept as well. Those who endorse this view may be called cornerstones. Nevertheless, it is important to recognize that cornerstones have quite diverse, and sometimes overlapping, views on what it is that is distinctive about privacy and what links diverse privacy claims.
Critiques of Privacy
Thomson Reductionism Probably the most famous reductionism view of privacy is one from Judith Jarvis Thomson (1975). Noting that there is little agreement on what privacy is, Thomson examines a number of cases that have been thought to be violations of the right to privacy. On closer inspection, however, Thomson believes all those cases can be adequately and equally well explained in terms of violations of property rights or rights over the person, such as a right not to be listened to.
Ultimately the right to privacy, on Thomson view, is merely a cluster of rights. Those rights in the cluster are always overlapped by, and can be fully explained by, property rights or rights to bodily security. The right to privacy, on her view, is “derivative” in the sense that there s no need to find what is common in the cluster of privacy rights. Privacy is derivative in its importance and Justification, according to Thomson, as any privacy violation is better understood as the violation of a more basic right. Numerous commentators provide strong arguments against Thomson critique (Scandal, 1975; Ninnies, 1992).
Richard Posses (1981) also presents a critical account of privacy, arguing that the kinds of interests protected under privacy are not distinctive. Moreover, his account is unique because he argues that privacy is protected in ways that are economically Inefficient. With respect to information, on Poser’s view privacy should only be protected when access to the information would reduce its value (e. . Allowing students access to their letters of recommendation make those letters less reliable and thus less valuable, and hence they should remain confidential or private).
Focusing on privacy as control over information about oneself, Posses argues that concealment or selective disclosure of information is usually to mislead or manipulate others, or for private economic gain, and thus protection of individual privacy is less defensible than others have thought because it does not maximize Anneal. In sum, Posses defends organizational or corporate privacy as more important than personal privacy, because the former is likely to enhance the economy.
Another strong critic of privacy is Robert Boor (1990), whose criticism is aimed at the constitutional right to privacy established by the Supreme Court in 1965. Boor views the Griswold v. Connecticut decision as an attempt by the Supreme Court to take a side on a social and cultural issue, and as an example of bad constitutional law. Boor’s attack is focused on Justice William O. Douglas and his majority opinion n Griswold.
Boor’s major point is that Douglas did not derive the right to privacy from some pre-existing right or from natural law, but merely created a new right to privacy Ninth no foundation in the Constitution or Bill of Rights. Boor is correct that the word ‘privacy’ never appears in those documents. Douglas had argued, however, that the Fifth, and Ninth Amendments. Taken together, the protections afforded by these Amendments showed that a basic zone of privacy was protected for citizens, and that it covered their ability to make personal decisions about their home and family life.
In contrast, Boor argues that none of the Amendments cited covered the case before the Court, that the Supreme Court never articulated or clarified what the right to privacy was or how far it extended, and he charges that the privacy right merely protected what a majority of Justices personally wanted it to cover. In sum, he accuses Douglas and the Court majority of inventing a new right, and thus overstepping their bounds as Judges by making new law, not interpreting the law. Boor’s views continue to be defended by others, in politics and in the popular press.
Resists including William Parent (1983) and Judith Thomson (1975) argue that the constitutional right to privacy is not really a privacy right, but is more aptly described as a right to liberty. Other commentators believe, to the contrary, that even if Douglas’ opinion is flawed in its defense, using vague language about a penumbral privacy right emanating from the Constitution and its Amendments, there is nevertheless a historically and conceptually coherent notion of privacy, distinct from liberty, carved out by the constitutional privacy cases (Ninnies, 1992; Schema, 1992; Omission, 1994; Decree, 1997).
The Feminist Critique of Privacy
There is no single version of the feminist critique of privacy, yet it can be said in general that many feminists worry about the darker side of privacy, and the use of privacy as a shield to cover up domination, degradation and abuse of women and others. If distinguishing public and private realms leaves the private domain free from any scrutiny, then these feminists such as Catharine Mackinac (1989) are correct that privacy can be dangerous for women when it is used to cover up repression and physical harm to them by perpetuating the subjection of women in he domestic sphere and encouraging nonintervention by the state.
Jean Betake Elation (1981, 1995) and others suggest that it appears feminists such as Mackinac are for this reason rejecting the public/private split, and are, moreover, recommending that feminists and others Jettison or abandon privacy altogether. But, Elation points out, this alternative seems too extreme. A more reasonable view, according to Anita Allen (1988), is to recognize that while privacy can be a shield for abuse, it is unacceptable to reject privacy completely based on harm done in private.
A total rejection of privacy makes everything public, and leaves the domestic sphere open to complete scrutiny and intrusion by the state. Yet women surely have an interest in privacy that can protect them from state imposed sterilization programs or government imposed drug tests for pregnant women mandating results sent to police, for instance, and that can provide reasonable regulations such as granting rights against marital rape. Thus collapsing the public/private dichotomy into a single public realm is inadequate.
What puzzles feminists is how to make sense of an important and valuable notion of privacy that provides them a realm free from scrutiny and intervention by the state, without reverting to the traditional public/ private dichotomy that has in the past relegated women to the private and domestic sphere where they are victims of abuse and subjection. The challenge is to find a way for the state to take very seriously the domestic abuse that used to be allowed in the most intimate parts of women’s lives.
This means drawing new boundaries for justified state intervention and thus understanding the public/private distinction in new ways. 3. Views on the Meaning and Value of Privacy .
Privacy and Control over Information
Narrow views of privacy focusing on control over information about oneself that were defended by Warren and Brandeis and by William Propose are also endorsed by more recent commentators including Fried (1970) and Parent (1983).
In addition, Alan Nesting describes privacy as the ability to determine for ourselves when, how, and to Nat extent information about us is communicated to others (Weston, 1967). Perhaps the best example of a contemporary defense of this view is put forth by William Parent. Parent explains that he proposes to defend a view of privacy that is insistent with ordinary language and does not overlap or confuse the basic meanings of other fundamental terms.
He defines privacy as the condition of not having undocumented personal information known or possessed by others. Parent stresses that he is defining the condition of privacy, as a moral value for people who prize individuality and freedom, and not a moral or legal right to privacy. Personal Information is characterized by Parent as factual (otherwise it would be covered by libel, slander or defamation), and these are facts that most persons choose not to reveal about themselves, such as facts about health, salary, weight, sexual orientation, etc.
Personal information is documented, on Parent’s view, only when it belongs to the public record, that is, in newspapers, court records, or other public documents. Thus, once information becomes part of a public record, there is no privacy invasion in future releases of the information, even years later or to a wide audience, nor does snooping or surveillance intrude on privacy if no undocumented Information is gained. In cases where no new information is acquired, Parent views the intrusion as irrelevant to privacy, and better understood as an abridgment of anonymity, trespass, or harassment.
Furthermore, what has been described above as the constitutional right to privacy, is viewed by Parent as better understood as an interest in liberty, not privacy. In sum, there is a loss of privacy on Parent’s view, only “hen others acquire undocumented personal information about an individual. Decree (1997) gives a detailed critique of Parent’s position.
In an article written mainly as a defense of Warren and Brandeis’ paper and as a response to William Propose, Edward J. Blousing (1964) argues that there is a common thread in the diverse legal cases protecting privacy. According to Blousing, Nearer and Brandeis failed to give a positive description of privacy, however they Nerve correct that there was a single value connecting the privacy interests, a value they called “inviolate personality. ” On Bloodstone’s view it is possible to give a general theory of individual privacy that reconciles its divergent strands, and “inviolate personality’ is the social value protected by privacy.
It defines one’s essence as a human being and it includes individual dignity and integrity, personal autonomy and independence. Respect for these values is what grounds and unifies the concept of rivalry. Discussing each of Presser’s four types of privacy rights in turn, Blousing defends the view that each of these privacy rights is important because it protects Using this analysis, Blousing explicitly links the privacy rights in tort law described by Propose with privacy protection under the Fourth Amendment.
He urges that both leave an individual open to scrutiny in a way that leaves one’s autonomy and sense of oneself as a person vulnerable, violating one’s human dignity and moral personality. Rhea common conceptual thread linking diverse privacy cases prohibiting assassination of confidential information, eavesdropping, surveillance, and Innervating, to name a few, is the value of protection against injury to individual freedom and human dignity. Invasion of privacy is best understood, in sum, as affront to human dignity. Although Blousing admits the terms are somewhat vague, he defends this analysis as conceptually coherent and illuminating.
A more common view has been to argue that privacy and intimacy are deeply related. On one account, privacy is valuable because intimacy would be impossible without it fried, 1970; Greet 1977; Greeters, 1978; Cohen, 2002). Fried, for example, defines privacy narrowly as control over information about oneself.
He extends this definition, however, arguing that privacy has intrinsic value, and is necessarily related to and fundamental for one’s development as an individual with a moral and social personality able to form intimate relationships involving respect, love, friendship and trust. Privacy is valuable because it allows one control over information about oneself, which allows one to maintain varying degrees of intimacy. Indeed, love, friendship and trust are only possible if persons enjoy privacy and accord it to each other.
Privacy is essential for such relationships on Fried’s view, and this helps explain why a threat to privacy is a threat to our very integrity as persons. By characterizing privacy as a necessary context for love, friendship and trust, Fried is basing his account on a moral conception of persons and their personalities, on a Kantian notion of the person with basic rights and the need to define and pursue one’s own values free from the impingement of others. Privacy allows one the freedom to define one’s relations with others and to define oneself. In this way, privacy is also closely connected with respect and self respect.
Greeters (1978) argues as well that privacy is necessary for intimacy, and intimacy in communication and interpersonal relationships is required for us to fully experience our lives. Intimacy Introit intrusion or observation is required for us to have experiences with spontaneity and without shame. Showman (1984) endorses these views and stresses that privacy provides a way to control intimate information about oneself and that has many other benefits, not only for relationships with others, but also for the development of one’s personality and inner self.
Julie Ninnies (1992) has identified intimacy as the defining feature of intrusions properly called privacy invasions. Ninnies argues that intimacy is based not on behavior, but on motivation. Ninnies believes that intimate information or activity is that which draws its meaning from love, liking, or care. It is privacy that protects one’s ability to retain intimate Information and activity so that one can fulfill one’s needs of loving and caring.
A number of commentators defend views of privacy that link closely with accounts stressing privacy as required for intimacy, emphasizing not Just intimacy but also there. Reaches (1975) acknowledges there is no single answer to the question why privacy is important to us, because it can be necessary to protect one’s assets or interests, or to protect one from embarrassment, or to protect one against the deleterious consequences of information leaks, to name Just a few. Nevertheless, he explicitly criticizes Thomson reductionism view, and urges that privacy is a distinctive right.
He basically defends the view that privacy is necessary to maintain a variety of social relationships, not Just intimate ones. Privacy accords us the ability to control ho knows what about us and who has access to us, and thereby allows us to vary our behavior with different people so that we may maintain and control our various social relationships, many of which will not be intimate. An intriguing part of Reaches’ analysis of privacy is that it emphasizes ways in which privacy is not merely limited to control over information. Our ability to control both information and access to us allows us to control our relationships with others. Hence privacy is also connected to our behavior and activities.
Another group of theorists characterize privacy in terms of access. Some commentators describe privacy as exclusive access of a person to a realm of his or her own, and Sessile Book (1982) argues that privacy protects us from unwanted access by others ? either physical access or personal information or attention.
Ruth Savior (1980) defends this more expansive view of privacy in greater detail, arguing that interests in privacy are related to concerns over accessibility to others, that is, “hat others know about us, the extent to which they have physical access to us, and the extent to which we are the subject of the attention of others. Thus the concept of privacy is best understood as a concern for limited accessibility and one has perfect privacy when one is completely inaccessible to others.
Privacy can be gained in three Independent but interrelated ways: through secrecy, when no one has information about one, through anonymity, when no one pays attention to one, and through solitude, when no one has physical access to one. Shaving’s view is that the concept of privacy is this complex of concepts all part of the notion of accessibility. Furthermore, the concept is also coherent because of the related functions privacy as, namely “the promotion of liberty, autonomy, selfless, human relations, and furthering the existence of a free society’ (Savings 1980, 347).
Carefully reviewing these various views, Anita Allen (1988) also characterizes privacy as denoting a degree of inaccessibility of persons, their mental states, and information about them to the senses and surveillance of others. She views seclusion, solitude, secrecy, confidentiality, and anonymity as forms of privacy. She also urges that privacy is required by the liberal ideals of Persephone, and the participation of citizens as equals. While her view appears to be similar to Shaving’s, Allen suggests her restricted access view is broader than Shaving’s.
This is in part because Allen emphasizes that in public and private women experience privacy losses that are unique to their gender. Noting that privacy is neither a presumptive moral evil nor an unquestionable moral good, Allen nevertheless defends more extensive privacy protection for women in morality and the law. Using examples such as sexual harassment, victim anonymity in rape cases, and reproductive freedom, Allen emphasizes the moral significance of extending privacy protection for women.
