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Privacy

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PrivacyAdam D. Moore

There is little agreement about how to define the term “privacy.” For example, Warren and Brandeis, following Judge Thomas Cooley, called it “the right to be let alone” (Warren and Brandeis 1890: 194). Alan Westin (1967) described privacy in terms of information control. William Parent argued that “privacy is the condition of not having undocumented personal knowledge about one possessed by others” (Parent 1983: 269), while Julie Inness defined privacy as “the state of possessing control over a realm of intimate decisions, which include decisions about intimate access, intimate information, and intimate actions” (Inness 1992: 140). Privacy is also viewed by many as morally valuable and worthy of protection, while others have viewed it with suspicion. This essay will review each of these areas, including (1) a brief history of privacy, (2) philosophical definitions of privacy along with specific critiques, (3) views about the value of privacy, and (4) general critiques of privacy.

A Brief History of Privacy: Classical Greece and China, Lockeand Mill

It is difficult to write about the history of privacy because of an overabundance of subject matter (Ariès and Duby 1988–91; Moore 2005, 2007). This section will focus on privacy as developed in two distinct cultures and within two different moral traditions (see deontology; utilitarianism). While there may be many different culturally dependent conceptions of privacy there is much overlap and a rich history. The point of this section is not to highlight a single conception of privacy that runs

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across different cultural and moral traditions. Rather the focus is on a few different traditions that promote privacy and provide a partial backdrop for current debates.

The distinction between public and private activity was entrenched in Greek society by the time of Socrates, Plato, and Aristotle (see aristotle; plato). Typically the distinction was cast in terms of political activity compared to isolated intellectual pursuits (Ariès and Duby 1988–91; Moore 1984). Both Socrates and Aristotle defend the view that a life of intellectual and private pursuit was a worthwhile life. In Plato’s Apology Socrates notes, “Perhaps it may seem strange that I go about and interfere in other people’s affairs to give this advice in private but do not venture to come before your assembly and advise the polis.” Socrates goes on to say that had he gone into politics he would have been put to death for opposing injustice. He ends with, “A man who really fights for the right, if he is to preserve his life even for a little while, must be a private citizen, not a public man” (Plato, Apology 31d–32a). Socrates thus affirms the view that criticism of governmental policy and officials is best pursued behind walls of privacy.

Aristotle also makes use of a public–private distinction. First, he recognizes a boundary between affairs of the state or polis and household affairs (Aristotle 1984: 2005–6, 1263b–1264b). Second, contemplative activity – which for Aristotle was essential for human flourishing – required distance, space, and solitude from public life (Aristotle 1984: 1861, 1177b). This is one of the first references to what was to become a dominate theme in Western thought – the good life is not necessarily tied to public activity (Moore 1984).

Plato, on the other hand, was openly hostile to privacy – deeming it unnecessary and counterproductive in relation to the ideal state. In the Republic Plato writes, “in the perfect State wives and children are to be in common … [and] houses … which are common to all, and contain nothing private, or individual” (Plato 1892: 801, 543a). In the Laws Plato advocates the elimination of private spheres of activity:

The first and highest form of the state and of the government and of the law is that in which there prevails most widely the ancient saying, that “Friends have all things in common.” Whether there is anywhere now, or will ever be, this communion of women and children and of property, in which the private and individual is altogether banished from life, and things which are by nature private, such as eyes and ears and hands, have become common, and in some way see and hear and act in common, and all men express praise and blame and feel joy and sorrow on the same occasions, and whatever laws there are unite the city to the utmost – whether all this is possible or not, I say that no man, acting upon any other principle, will ever constitute a state which will be truer or better or more exalted in virtue. (Plato, Laws, Ch. 5, 738d–e)

Plato views privacy as something that is inherently disvaluable in relation to the perfect state. Moreover he recognizes no psychological, sociological, or political needs for individuals to be able to control patterns of association and disassociation with their fellows.

The public–private distinction was also well understood by the Warring States period – 403 bce–221 bce – in China (Moore 1984). Like Aristotle, Confucius

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(551–479 bce) distinguished between the public activity of government and the private affairs of family life (see confucious). While Plato rejects, Aristotle and Confucius affirm, many of the six categories of privacy discussed below.

Confucius contends that “a private obligation of a son to care for his father overrides the public obligation to obey the law against theft” and that “a timid man who is pretending to be fierce is like a man who is so ‘dishonest as to sneak into places where one has no right to be, by boring a hole or climbing through a gap’”(Moore 1984: 223). Han Fei Tzu (280–233 bce) writes:

When T s’ang Chieh [a mythic cultural hero] created the system of writing, he used the character for “private” to express the idea of self-centeredness, and combined the elements for “private” and “opposed to” to form the character for “public.” The fact that public and private are mutually opposed was already well understood at the time of T s’ang Chieh. To regard the two as being identical in interest is a disaster which comes from lack of consideration. (Tzu 1964: 106)

While not sophisticated and clearly contentious, the public–private distinction arose and was a matter of philosophical debate in two distinct cultural traditions. In both of these cultures privacy was a commodity purchased with power, money, and privilege. Barriers such as walls, fences, and even servants secured areas of isolation and seclusion for the upper class. To a lesser degree, privacy was also secured by those with more modest means.

Within the liberal tradition the public–private distinction has been used to mark the boundary of justified interference with personal conduct in the political theories of John Locke and John Stuart Mill (see locke, john; mill, john stuart). For Locke the public–private distinction falls out of his conception of the state of nature, the legitimate function of government, and property rights. The sole reason for uniting into a commonwealth, for Locke, was to remedy the inconveniencies of the state of nature – the function of government was to secure the rights of life, liberty, and property (Locke 1980: 5–30). On estates and behind fences, walls, and doors Lockean individuals secure a domain of private action free from public pressures or interference.

John Stuart Mill also limits societal or public incursions into private domains. Mill argues: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill 1978: 9). Recognizing that harm could occur through action and inaction, Mill accepted a version of the doing–allowing distinction (see doing and allowing) – actions that cause harm are different from failings to prevent harm. In anticipation of the question “won’t any action someone performs affect others in some way” Mill offers his doctrine of “self-regarding” and “other-regarding” acts (Mill 1978: 78–82) and addresses this question in chapter 5 of Utilitarianism (Mill 1861: 41–63). One view is that, for Mill, strategic rules or rights provide the standard of harm and the boundary between self-regarding and other-regarding acts. When an action violates the rights of another, moral harm has occurred and appropriate action or interference

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is warranted by citizens or government agents. Liberty, property, and life rights appear to be the kinds of rights that Mill endorses. If so, then like Locke, Mill uses rights to secure individuals the moral space to order their lives independent of social pressures. While not explicit in their defense, both Locke and Mill promote many of the central features of privacy mentioned in the following section. Individual liberty and private property provide a sanctuary against governments and neighbors. Within private domains individuals obtain intimacy and secrecy, and can control access to themselves.

Definitions of Privacy

Definitions of privacy are typically grouped into two general types. A descriptive or nonnormative account describes a state or condition where privacy obtains. An example would be Parent’s definition: “privacy is the condition of not having undocumented personal knowledge about one possessed by others” (Parent 1983:   269). A normative account, on the other hand, makes references to moral obligations or claims. For example, when DeCew talks about what is of “legitimate concern of others” she includes ethical considerations (DeCew 1997: 58). There is little agreement regarding the descriptive or normative components of privacy and many of the definitions surveyed below could be cast along either dimension. For example, we could define privacy as being let alone or as a right to be let alone. Privacy could be cast as a condition that obtains or as a right that a condition obtains.

While admittedly imprecise, different conceptions of privacy typically fall into one of six categories or combinations of the six (Solove 2002; Moore 2008, 2010): (1) the right to be let alone; (2) secrecy; (3) intimacy; (4) control over information; (5) restricted access; and (6) privacy as a cluster concept. We will take them up in turn.

Warren and Brandeis argued:

recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the “right to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” (Warren and Brandeis 1890: 194)

While acknowledged as starting the modern debate, the conception of privacy proposed by Warren and Brandeis has been widely criticized as too vague (Gavison 1980; O’Brien 1979; Allen 1988; Bloustein 1964; Solove 2002). According to this definition any offensive or hurtful conduct would violate a “right to be let alone,” yet we may not want to conclude that such conduct is a violation of privacy. For example, suppose that Smith inadvertently brushes against Jones as they pass each other on a busy sidewalk – not every violation of a right to be let alone seems to be a privacy violation. This conception is too narrow as well. Consider the case of covert surveillance where a target is “let alone” but there is a clear privacy violation

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( Thomson 1975). In this latter case, someone may be let alone in some sense and yet seemingly have their privacy violated.

Richard Posner has defined privacy as the “right to conceal discreditable facts about oneself ” – a right to secrecy (Posner 1981: 46). Amitai Etzioni concurs, writing that privacy is “the realm in which an actor … can legitimately act without disclosure and accountability to others” (Etzioni 1999: 12). DeCew and others have criticized this conception of privacy, noting “secret information is often not private (for example, secret military plans) and private matters are not always secret (for example, one’s debts)” (DeCew 1997: 48). Moreover it seems that privacy-as-secrecy accounts cannot accommodate what has come to be called “decisional privacy.” Decisional privacy, within the US context, has been defined as the freedom to make decisions about a range of actions and behaviors, including contraceptive use, abortion, child rearing, and sexual practices. Those who would defend decisional privacy claim that making a decision about abortion, for example, may not be secret and yet still be a matter of privacy.

Several authors have defended the view that privacy is a form of intimacy (Fried 1970; Gerstein 1978; Inness 1992; Rosen 2000; Cohen 2002). Jeffrey Rosen writes: “In order to flourish, the intimate relationships on which true knowledge of another person depends need space as well as time: sanctuaries from the gaze of the crowd in which slow mutual self-disclosure is possible” (Rosen 2000: 8). Julie Inness maintains that privacy is “the state of the agent having control over decisions concerning matters that draw their meaning and value from the agent’s love, caring, or liking” (Inness 1992: 91). In critique, Solove (2002) and DeCew (1997) note that financial information may be private but not intimate. Moreover, it is possible to have private relationships without intimacy and to perform private acts that are not intimate. Data mining also may pose a threat to individual privacy without affecting intimate relationships.

Control over personal information has also been offered as a definition of privacy (Westin 1967; Gross 1971; Fried 1984). Alan Westin writes, “privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves” (Westin 1967: 7). Gross argues that privacy is “the condition under which there is control over acquaintance with one’s affairs” (Gross 1971: 209). Critics have attacked this conception on grounds that it, like the secrecy view, cannot account for “decisional privacy.” It also fails to acknowledge a physical aspect to privacy – control over access to locations and bodies. Finally, many have noted that whether or not a privacy condition of this sort holds is unimportant – what we want to know is “should individuals have rights to control access?” (DeCew 1997; Moore 2008, 2010).

Privacy defined as “limited access to the self ” has been defended by numerous authors, including Sissela Bok (1983), Anita Allen (1988), and Ruth Gavison (1980). Bok writes, “privacy is the condition of being protected from unwanted access by others – either physical access, personal information, or attention” (Bok 1983: 10). The worry here is that if no protection is available or the condition does not obtain it would be odd to conclude that privacy interests were not relevant. Gavison offers

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a different account of limited access. On her view limited access consists of “secrecy, anonymity, and solitude” (Gavison 1980: 433). Solove notes: “Although Gavison contends that ‘the collection, storage, and computerization of information’ falls within her conception, these activities often do not reveal secrets, destroy anonymity, or thwart solitude” (Solove 2002: 1105). If so, such conceptions of privacy may be too narrow.

Finally, many view privacy as a cluster concept that contains several of the dimensions noted above. Judith Wagner DeCew (1997) has proposed that privacy is a concept ranging over information, access, and expressions. Daniel Solove (2002) has offered a context-dependent approach for defining privacy – for example, in the context of information we may focus on certain dimensions of privacy that will not be as important in different contexts like spatial control. Building on restricted-access views and control-based accounts, Moore (2003, 2008, 2010) has argued that privacy is the right to control access to and uses of personal information and spatial locations.

The Moral Value of Privacy

Many privacy theorists argue that privacy is morally valuable because it is associated, in some central way, with autonomy and respect for persons (Benn 1971; Rachels 1975; Reiman 1976; Kupfer 1987; Inness 1992; Rössler 2005) (see autonomy). Stanley Benn writes: “Respect for someone as a person, as a chooser, implies respect for him as one engaged on a kind of self-creative enterprise, which could be disrupted, distorted, or frustrated even by so limited an intrusion as watching” (Benn 1971: 26). Rachels (1975) argued that privacy is morally valuable because it allows individuals to control the patterns of behavior necessary for stable and meaningful relationships. Joseph Kupfer argues that “privacy is essential to the development and maintenance of an autonomous self ” (Kupfer 1987: 82). Rössler maintains that privacy is a necessary condition for individual autonomy (Rössler 2005: 42–76). According to these theorists, privacy is morally valuable because it protects and promotes the sovereign and autonomous actions of individuals – since autonomy is morally valuable, privacy must be as well.

Allen Westin (1967) argued that the ability to regulate access was essential for the proper functioning of animals. Building on Westin’s account of separation, Moore (2003, 2008, 2010) has argued that privacy is necessary for human well-being or flourishing. Moore notes that “while privacy may be a cultural universal necessary for the proper functioning of human beings, its form − the actual rules of association and disengagement − is culturally dependent. The kinds of privacy rules found in differ-ent cultures will be dependent on a host of variables including climate, religion, tech-nological advancement, and political arrangements” (Moore 2010: 55). Moore argues the forms of privacy are culturally relational while the need is an objective necessity.

General Critiques of Privacy

The discussion of privacy, including the definitions and history presented above, must also include views which challenge the authenticity, legitimacy, and necessity

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of privacy (DeCew 2006). While not exhaustive, presented below are some of the most forceful critiques of privacy that dominate the literature.

Reductionism

Reductionists argue that privacy is derived from other rights such as life, liberty, and property rights – there is no overarching concept of privacy but rather several distinct core notions that have been lumped together (Davis 1959; Thomson 1975; Peikoff 2004). The nonreductionist views privacy as related to, but distinct from, other rights or concepts. Viewing privacy in reductionist fashion might mean jettisoning the idea altogether and focusing on more fundamental concepts. For example, Frederick Davis has argued that “invasion of privacy is, in reality, a complex of more fundamental wrongs. Similarly, the individual’s interest in privacy itself, however real, is derivative and a state better vouchsafed by protecting more immediate rights” (Davis 1959: 20). Judith Jarvis Thomson agreed, claiming “the right to privacy is itself a cluster of rights, and that it is not a distinct cluster of rights but itself intersects with … the cluster of rights which owning property consists in” (Thomson 1975: 306). The simpler avenue, according to Thomson, is to focus on this cluster of rights which are more basic or fundamental than the “derivative” right of privacy.

To illustrate the reductionist view, consider Thomson’s case of a pornographic picture. Hugh owns a pornographic picture and keeps it locked in his wall safe – so that no one can see it or even know that he owns it. Larry wants to see the picture and trains his x-ray device on the wall safe to look in. Thomson argues that Hugh’s property right to the picture includes the right that others not look at it and thus, in this case, privacy rights are a kind of property right. Other rights, like the right not to be listened to or touched, fall under what Thomson calls the “rights over the per-son” which she claims are analogous to property rights as well. In this way, Thomson claims that privacy is nothing more than the cluster of rights over the person and property rights.

Several privacy theorists have offered arguments against this sort of reductionism (Scanlon 1975; Parent 1983; Inness 1992; DeCew 1997; Moore 2010). Scanlon argues that the wrongness in cases where Hugh does not own the picture in question and Larry uses an x-ray device to look, does not depend on property rights. Moreover, Parent noted that even if correct, all that Thomson shows is that it is unclear if privacy is reducible to more “basic” rights or the other way around. Perhaps we should view privacy as more fundamental than property or rights over the person.

The “other values” critique

Anita Allen (2003, 2008), Ferdinand Schoeman (1992), Amitai Etzioni (1999), and others have argued that privacy is less important, in many circumstances, than accountability, security, or community rights. The problem with our heightened sensitivity to privacy violations is that we forget that other, more important, values are lost or minimized. Anita Allen (2003) has argued that accountability toward one’s family, race, and society justifiably limits the domain of individual privacy.

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Allen also argued that “spying is useful for protecting children or others in our care who cannot protect themselves; protecting ourselves from wrongdoers; protecting the company and the investing public; and protecting the nation” (Allen 2008: 19).

Amitai Etzioni (1999) noted that in our society privacy has been treated as the highest privileged value to the detriment of other common goods such as public safety and public health. Etzioni views privacy as a “societal license” that exempts certain conduct from public scrutiny. Helena Gail Rubinstein writes: “ communitarians reject the primacy of the individual, and invite members of the community to move beyond self-interest in favor of a vision of society defined by community ties and a search for the communal good … individuals should not assert their ‘right to be let alone’ when it is time to contribute to the collective good” (Rubinstein 1999: 228). Communitarians like Etzioni and Rubinstein seek to find a balance between individual rights and social responsibilities (see communitarianism).

Posner’s critique

Richard Posner (1981) has argued that the value of privacy, in an economic sense, determines how privacy ought to be applied in specific instances. In some cases privacy should be passed over in favor of economic gains to society. His stance places a high value on privacy in business dealings since this privacy has potential for greater impact on the economy. Personal information, on the other hand, does not deserve the same privacy protection because persons, as opposed to businesses, will tend to increase personal wealth over the growth of societal wealth. Privacy in personal information, according to Posner, is typically used to mislead or manipulate others. Posner writes: “the individual’s right to privacy … the right to control the flow of information about him … [may include] information concerning … criminal activity, or moral conduct at variance with the individual’s professed moral standards” (Posner 1981: 233). Posner concludes that it is not clear why society should protect privacy of this sort.

Data mining, surveillance, and transparency – privacy is dead

In contrast to the communitarian claim that privacy interests have become too prominent, numerous scholars have announced the death of privacy. The critique offered is not so much a normative one but rather descriptive – privacy is no longer relevant in the age of transparency. The “stark reality,” Richard Spinello writes, is “that our personal privacy may gradually be coming to an end” (Spinello 1997: 9). David Brin (1998), Charles Sykes (1999), Jeffrey Rosen (2000), and others have proclaimed that privacy is under siege. Implicated in the assault is the growth of information technology and ubiquitous computing (see privacy and the internet).

The feminist critique

A number of feminist scholars have critiqued privacy, noting that it often shields domination, abuse, and violation – privacy protects the hierarchical power

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relationships that subject women to subordination by men (see feminism). Behind the walls of privacy these power relationships remain hidden and thus perpetuate inequality. Catharine MacKinnon writes:

For women the measure of the intimacy has been the measure of the oppression.… This is why feminism has seen the personal as the political. The private is public for those for whom the personal is political. In this sense, for women there is no private, either normatively or empirically. Feminism confronts the fact that women have no privacy to lose or to guarantee. (MacKinnon 2002: 191)

Mackinnon also noted that by putting the right to abortion under the category of privacy, abortion ceased to be understood as a women’s issue. Deborah Rhode (1989) has argued that legal and moral conceptions of privacy support the “separate spheres ideology” which has placed women in the unseen and unheard domain of the private. Other feminists such as Carol Gilligan (1982) have maintained that notions of privacy embrace the traditional male view of humans as independent autonomous moral agents operating in a marketplace of rights.

Other feminists such as Anita Allen (1988), Jean Bethke Elshtain (1981), and Judith Wagner DeCew (1997) argue that rejecting privacy rights, and more generally the private–public distinction, may afford those in dominate positions more power over women. DeCew writes: “focus on domestic violence ignores state-sponsored expressions of control over women” (DeCew 1997: 88).

Conclusion

While privacy is difficult to define and has been challenged on moral, legal, and social grounds, it has played an important role in the formation and maintenance of Western liberal democracies. It is also true that rituals of coming together and leave-taking have been found in every culture systematically studied (Westin 1967). The question “what do we owe each other” in terms of information sharing and access is no more important now than it was a century ago – whatever the form or practice, individuals of all cultures desire privacy. What has changed is our technological ability to intrude on the “sacred precincts of private and domestic life” (Warren and Brandeis 1890: 194).

SEE ALSO: aristotle; autonomy; communitarianism; confucius; deontology; doing and allowing; feminism; locke, john; mill, john stuart; normativity; plato; privacy and the internet; utilitarianism

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pp. 193–220.Westin, A. 1967. Privacy and Freedom. New York: Atheneum.

FURTHER READINGS

Bloustein, E. 1978. Individual and Group Privacy. New Brunswick, NJ: Transaction Books.Freund, P. A. 1971. “Privacy: One Concept or Many?” in R. Pennock and J. Chapman (eds.),

Privacy Nomos XIII. New York: Atherton, pp. 182–98.Frey, R. G. 2000. “Privacy, Control, and Talk of Rights,” Social Philosophy and Policy, vol. 17,

pp. 45–67.Griffin, J. 2007. “The Human Right to Privacy,” San Diego Law Review, vol. 44, pp. 697–721.Lessig, L. 2002. “Privacy as Property,” Social Research, vol. 69, pp. 247–69.Miller, F., E. Paul, and J. Paul (eds.) 2000. The Right to Privacy. Cambridge: Cambridge

University Press.Moore, A. D. 1998. “Intangible Property: Privacy, Power, and Information Control,” American

Philosophical Quarterly, vol. 35, pp. 365–78.Moore, A. D. 2010. “Privacy, Public Health, and Controlling Medical Information,” Health

Care Ethics Committee (HEC Forum), vol. 23, pp. 225–40.

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12 p r i va c y

Nissenbaum, H. 1998. “Protecting Privacy in an Information Age: The Problem of Privacy in Public,” Law and Philosophy, vol. 17, pp. 559–96.

Pennock, J. R., and J. Chapman (eds.) 1971. Privacy: Nomos XIII. New York: Atherton.Rössler, B. (ed.) 2004. Privacies: Philosophical Evaluations. Stanford: Stanford University

Press.Rubenfeld, J. 1989. “The Right of Privacy,” Harvard Law Review, vol. 102, pp. 737–84.Rule, J. 2007. Privacy in Peril: How We Are Sacrificing a Fundamental Right for Security and

Convenience. Oxford: Oxford University Press.Schoeman, F. (ed.) 1984. Philosophical Dimensions of Privacy: An Anthology. Cambridge:

Cambridge University Press.Schwartz, B. 1968. “The Social Psychology of Privacy,” American Journal of Sociology, vol. 73,

pp. 741–52.Solove, D. 2004. The Digital Person: Technology and Privacy in the Information Age. New

York: New York University Press.Taylor, J. S. 2002. “Privacy and Autonomy: A Reappraisal, Southern Journal of Philosophy, vol.

40, pp. 587–604.Taylor, J. S. 2005. “In Praise of Big Brother: Why We Should Learn to Stop Worrying and Love

Government Surveillance,” Public Affairs Quarterly, vol. 19, pp. 227–46.Whitman, J. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty,” Yale Law

Journal, vol. 113, pp. 1151–221.

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