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Privacy

Abstract and Keywords

The idea of privacy has played a role in constitutional thought, formulations of human rights, and both common and civil law. The US Supreme Court has recognized that five of the original Bill of Rights and the Fourteenth Amendment protect privacy interests. In US tort law, interests against intrusion upon seclusion, public disclosure of private fact, publications placing one in a false light, and misappropriation of a person's name, likeness, or identity are potentially protected through civil actions styled ‘invasions of privacy’. Federal and state statutes protect interests in the privacy of records relating to, inter alia, health, finances, consumer transactions, Internet use, and taxes.

Keywords: privacy, human rights, Bill of Rights, Fourteenth Amendment, civil actions, federal statutes

1. Introduction

Philosophers of privacy have engaged in three interrelated, but distinguishable enterprises: (1) conceptual analysis, both descriptive and normative; (2) policy analysis, including analysis of issues raised by bioethics and new technologies; and (3) feminist analysis. Although all three have enjoyed periods of special prominence, even the earliest—conceptual analysis—has continued beyond its time of origin and prominence into the present day. A separate discussion of each enterprise follows this introduction.

Recognizing that strict definitions of'privacy’ are diverse and contested, I will use ‘privacy’ broadly to encompass the concepts, values, and phenomena most commonly discussed under its rubric, specifically: (1) freedom from government or other outside interference with personal life—decisional privacy; (2) seclusion, solitude, and bodily integrity—physical privacy; (3) confidentiality, anonymity, data protection, and secrecy of facts about persons—informational privacy; and (4) limits on the use of a person's name, likeness, identity, or other attributes of identity and exclusive possession—proprietary privacy (A. L. Allen 1997: 33). In its decisional, physical, informational, and proprietary senses, privacy is protected by law, but also by cultural norms, professional ethics, and business practices.

Ideas and ideals of privacy have played a role in religious, political, and legal thought for centuries. It has been portrayed variously as an ideal of solitary, reclusive, secret, or modest spiritual devotion and also as an ideal of right conduct (Konvitz 1966). James Fitzjames Stephen (1873) quipped that anything'indecent’ is (p. 486) an invasion of privacy. Privacy has also played a significant role in political thought as an ideal of limited government called for by moral autonomy, civil liberty, and civility (Feinberg 1983; G. Dworkin 1988). Today, civil libertarians cite John Stuart Mill's classic defence in On Liberty (1859) of decisional privacy rights for individuals acting in the domain of self-regarding conduct; and moral philosophers cite Immanuel Kant's familiar deontological theory of moral autonomy (G. Dworkin 1978, 1988).

The idea of privacy has played a role in constitutional thought, formulations of human rights, and both common and civil law. The US Supreme Court has recognized that five of the original Bill of Rights and the Fourteenth Amendment protect privacy interests. In US tort law, interests against intrusion upon seclusion, public disclosure of private fact, publications placing one in a false light, and mis- appropriation of a person's name, likeness, or identity are potentially protected through civil actions styled ‘invasions of privacy’. Federal and state statutes protect interests in the privacy of records relating to, inter alia, health, finances, consumer transactions, Internet use, and taxes.

Scholarly interest in privacy was minimal prior to the 1960s. This was true throughout the English-speaking world. In the USA, the most cited scholarly article on the subject of the right to privacy was (and is) one Samuel Warren and Louis Brandeis (1890) published in the Harvard Law Review, calling for recognition of a right of privacy in tort law. However, in the 1960s, legal scholars began writing about privacy in significant numbers (Davis 1959; Beany 1962, 1966; Ernst and Schwartz 1962; Note 1963; Bates 1964; Hofstadter and Horowitz 1964; Dixon 1965; Kalven 1966; Negley 1966; Shils 1966; Long 1967; Nimmer 1968). William Prosser (1960) published a key article announcing the full flowering of four invasion-of- privacy torts. Early articles by Edward Bloustein (1964, 1978) and Charles Fried (1968) sought to identify the moral foundations of privacy in neo-Kantian principles of dignity and respect. Two of the few books on the subject of privacy from the period were sociologist Alan Westin's highly influential Privacy and Freedom(1967) and law professor Arthur Miller's The Assault on Privacy (1964).

Scholarly interest in organized conceptual understandings of privacy increased after 1970 (Bostwick 1976). Academic philosophers in the USA, UK and Australia began systematic study of privacy in the 1970s (Van den Haag 1971; Thomson 1975; Wasserstrom 1978; Berns 1979; Benn 1980,1988; F. A. Allen 1984). Several anthologies devoted to privacy topics, including some substantially devoted to philosophical perspectives, were published in the 1970s, including issues ofNomos and Philosophy and Public Affairs (PAPA) (Ernst and Schwartz 1962; Pennock and Chapman 1971; McClellan 1976; Young 1978). Indeed, volume 6 of PAPA (1976) signalled the definitive arrival of privacy as a concept commanding serious, sustained philosophical dialogue. Some of the volume's seminal articles were later included in a useful anthology of legal and philosophical privacy perspectives assembled by Ferdinand Schoeman (1984a).

(p. 487)

A number of books about privacy by interdisciplinary philosophers interested in public policy were published in the 1980s. Informational privacy was the subject of Sissela Bok's Secrecy (1983), although Bok contends that privacy and secrecy are distinct concepts. Bok's analysis of secrecy as intentional concealment closely examines the ethical value of non-disclosure in personal relationships, medicine, science, government, the military, journalism, and corporate life. Published in 1986, Toleration and the Constitution was David A. J. Richards's social contractarian analysis of constitutional freedoms and privacy. Rejecting ‘original-intent’ and ‘plain- meaning’ theories of constitutional interpretation, Richards argued that the eighteenth-century intellectual heritage of the US Constitution warrants contractarian jurisprudence. State action ought to be limited by a standard of rational agreement by autonomous moral agents. Properly interpreted, the Constitution requires wide tolerance of religion, free expression, and autonomous choices respecting consensual adult sex and reproduction. Uneasy Access: Privacy for Women in a Free Society (A. L. Allen 1988b), one of the first books about privacy to focus exclusively on gender issues, included a comprehensive survey of the philosophic literature. The book began with chapters surveying definitional accounts of the meaning and value of privacy and offering a perspective influenced by the work of Charlotte Perkins Gilman (1898/1986), Hannah Arendt (1958), Ruth Gavison (1980), and Jean Bethke Elshstain (1981). Uneasy Access argued that women have varied privacy interests and confront special obstacles to privacy at home, at school, on the streets, at work, in the media, in the courts, and while in the hands of police and prison officials. Important books by philosophers Julie Inness (1992), Ferdinand Schoeman (1992), Patricia Boling (1996), and Judith Wagner DeCew (1997) followed.

The paucity and then sudden bounty of privacy scholarship in the final few decades of the twentieth century require explanation. Developments in law, medicine, civil rights, and technology help to explain why scholars in law and philosophy turned to privacy studies. This is painstakingly true of scholars in the USA. However, US developments also had an impact on scholars from Canada (Flaherty 1972), Israel (Gavison 1980), Great Britain (Wacks 1980), and Australia (Benn 1971).

First, in the 1960s and 1970s the US Supreme Court popularized the idea of legal rights of privacy by relying upon the idea of constitutional rights of privacy to set the standards for lawful search and seizure (Katz v. United States., 1967), and to over- turn laws criminalizing birth control (Griswold v. Connecticut, 1965), interracial marriage ﹛Loving v. Virginia, 1967), the use of pornography in the home ﹛Stanley v. Georgia, 1969), and abortion ﹛Roe v. Wade, 1973). These precedents inspired later efforts to establish sexual privacy rights for gays and lesbians, including Bowers v. Hardwick (1986).

Secondly, the escalation of the cold war, the Vietnam conflict, and racial turmoil heightened concern about the government's techniques of espionage, surveillance, and social control. The surveillance technologies used for spying could also be used (p. 488) to monitor ordinary citizens and suspected criminals. The government's ability to discern the details of private lives through covert wiretapping, and powerful lenses, microphones, and cameras made citizens concerned about the fate of freedom and democracy. US Congress enacted the Omnibus Crime Control and Safe Street Act in 1967, permitting, but setting limits on, wiretapping and certain other forms of surveillance. (The Electronic Communication Privacy Act of 1986 and subsequent statutes have updated this major legislation.)

Thirdly, by 1970 some Americans had come to see computers as threats to informational privacy. Concerns over the ‘databank’ containing personal profiles emerged. The potential for unfair use of personal information and misinformation stored in commercial and government databanks led to federal laws including the Privacy Act of 1974, the Family Education and Right to Privacy Act of 1974, and the Right to Financial Privacy Act 1978. A national commission formed by federal lawmakers, the US Privacy Protection Study Commission, published its two-volume report, Personal Privacy in an Information Society in 1977. The report recommended that a list of'fair information practices’ govern the collection, storage, and use of personal information about individuals.

A fourth development increased scholars’ interest in privacy: advances in medicine and health care. One category of advances enabled physicians to prolong the lives of terminally ill patients, critically injured patients, and fragile newborns. The ability to extend life created difficult bioethical questions about the allocation of decision- making authority about matters of life and death among patients, health-care providers, family members, and insurers. Conceptions of privacy and autonomy were adduced by some ethicists as relevant to the assignment of authority and responsibility. Medical advances of the 1960s and 1970s also enabled women and their physicians to prevent and safely to terminate pregnancy. Access to birth control and abortions was defended in the courts, in legislatures, on college campuses, and as a matter of women's privacy rights. The global AIDS epidemic and the International Human Genome Project increased interest in the use and abuse of medical information.

The World Wide Web as a popular social and commercial setting has made ‘privacy policy’ a household word (Berners-Lee 1999), as did aggressive, sensational, and confessional television journalism, which gained special popularity after 1990. The Watergate scandal had established investigative journalism as a major political force within American life. After Watergate, however, the scope of investigative journalism broadened and took on a more commercial slant. Journalists engaged in made-for-prime-time undercover efforts to reveal corporate and professional wrongdoing. Camera-toting journalists rode along with law enforcers and medical rescue missions. In addition, programmes in which guests reveal family problems, medical concerns, and personal relationships took over the airways. Other popular television programmes featured the interpersonal conflicts of children or adults, whether in competition or while living together communally. Programmes based on European models appeared in 2000, in which people lived in isolated settings (p. 489) with cameras trained on them twenty-four hours a day for extended periods. Because of television, events including the Clarence Thomas hearings, the O. J. Simpson murder trial, the impeachment trial of President William J. Clinton, and the deaths of Princess Diana and John R Kennedy Jr., made the intimate lives of public figures and public officials everyone's business. Important ethical issues about the value of privacy and celebrity were raised by these developments. (A. L. Allen 1999a,b,c,d; Rosen 2000).

2. The Conceptual Enterprise

The enterprise of sustained conceptual analysis of privacy originated in the late 1960s and early 1970s in response to the societal developments just identified. The ethicists who undertook conceptual analysis sought to describe and define the meaning of the expression ‘privacy’, distinguishing it from other concepts, such as property, liberty, and secrecy. They also sought to define the value of privacy. Philosophers of the period often used the tools of ordinary language analysis associated with analytic philosophy's normative branches. Judith Thomson's article ‘The Right to Privacy’ (1975) is an apt example. In addition to normative concerns, philosophers explored Wittgensteinian, epistemic, and ontological privacy concerns, such as whether and how language or thought can be private (J. W. Cook 1965; A. Kenny 1966; Temkin 1981; Castiligione 1984; Fiser 1986).

2.1 Definitional Analysis: What ‘Privacy’ Means

In the 1970s and 1980s, philosophical writings about privacy issuing from the academy were often definitional. Philosophers maintained that making the ordinary language or ideal definitions of privacy clear and explicit was a useful first step to addressing vexing questions of law, policy, and ethics.

The definitional literature is illuminating, although no one definition of'privacy’ gained universal acceptance. Nor was there consensus about what would constitute an adequate definition. A number of critical surveys assessed attempts to define ‘privacy’ (McCloskey 1971; O'Brien 1979; Gavison 1980; Parent 1983a; Schoeman 1984a; A. L. Allen 1988b). Some philosophers thought that to define ‘privacy’ they must isolate necessary and sufficient conditions of correct usage or of the truth of propositions predicating privacy (Gerety 1977; Velecky 1978). Others sought informal or stipulative definitions. They claimed that formal definition need not precede practical legal or ethical analysis (Schoeman 1984b; Tomkovicz 1985). Wacks (1980) argued that the persistent search for definition is sterile.

(p. 490)

‘Privacy’ has been broadly and inadequately defined as ‘being let alone’—after the fashion of Warren and Brandeis's popularization (1890) of a definition they attributed to Judge Thomas Cooley. Following Alan E Westin (1967: 7), scholars and policy analysts frequently defined privacy as ‘control over or exclusive possession of information’.

‘Privacy’ can denote much more than information management. Yet information (that is, data) control is a leading conception of privacy in the age of the Internet and World Wide Web. Control-based definitions of privacy preceded the Internet. On Paul Siegel's model (1984), ‘privacy’ refers to control over self-regarding con- duct: control over ‘stimulus input’ and control over ‘stimulus output'. Stimulus input is what persons receive through their five senses; stimulus output is what persons do or say. He went on to argue that the normative key to privacy's value is not human dignity, as many have claimed, but human control.

Richard Parker argued that privacy deals essentially with not being sensed by others. Richard Hallborg (1986) defined privacy as the condition of being unob- served when one is ‘in private’, and the right to privacy as the right not to be observed when one is in private. Hallborg's definition problematically precludes attaching ‘privacy’ to interests in solitude, seclusion, anonymity, and confidentiality, and persons arguably possess these even while strolling public streets and utilizing recreational and commercial facilities. Concerns about privacy in public places have mushroomed in recent years and have led to laws aimed at the paparazzi photographers who trail public figures.

In law, philosophy, and the social sciences, definitions of ‘privacy’ in which the concept of restricted access plays a central role became commonplace in the 1980s. According to Ruth Gavison (1980: 428), ‘in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X’. Indeed, it does appear that we can characterize what is meant by physical and informational privacy in terms of the inaccessibility of persons, their mental states, or information about them to the senses or surveillance devices of others. So conceived, privacy can function as an ‘umbrella’ concept, encompassing subordinate concepts, each of which denotes a particular form of limited accessibility to others. Such subordinate concepts plausibly include seclusion, solitude, anonymity, confidentiality, modesty, intimacy, reserve, and secrecy. However, it has been argued that some or all of these concepts are not reducible to forms of privacy. Friedrich (1971) maintained that privacy is a form of secrecy, rather than the other way around. Bok (1983) has argued that secrecy is the wholly distinct concept of intentional concealment; and Bellman (1981) that secrecy is a metaphor and refers to a different way of treating knowledge rather than a different concept of privacy. The proponent of a narrow definition of legal privacy as ‘not having undocumented personal knowledge about oneself possessed by others', William Parent (1983a, c)was a critic of'restricted-access’ definitions. Parent's alternative conception of privacy has been rejected as arbitrarily narrow (DeCew 1986; A. L. Allen 1988b). A common concern raised by restricted access and control-based definitions is that they (p. 491) typically do not invoke the idea of intimacy that is presuppposed by much of what we say and think about privacy (Inness 1992; Boling 1996).

The philosophers who undertook conceptual analysis were persuaded that they had something to contribute to urgent practical endeavours, such as the adjudication of constitutional cases. Seeking to expose the implicit moral and political theories of a judiciary espousing fundamental privacy rights and reasonable expectations of privacy, philosophers sometimes argued that the courts perpetuate confused and mistaken definitions of privacy. Indeed, the philosophy literature of the 1970s, 1980s, and 1990s includes lively debates among philosophers about whether the courts ought to continue decisional and proprietary uses of privacy, alongside the paradigmatic informational and physical uses. Physical and informational privacy are at issue in discussions of, for example, intrusion into the home, employer access to e-mail, unwanted surveillance or publicity, and employer use of drug or polygraph testing. Proprietary privacy is at issue in discussions of publicity rights and control over human tissues and DNA. Decisional privacy is at issue in discussions of the right to die, abortion, and sodomy statutes. The decisional use of ‘privacy’ has been particularly controversial. Here ‘privacy’ refers chiefly, not to restricted access to thefivesenses or surveillance devices of others, but to an aspect of liberty or autonomy—freedom from governmental or other outside interference with decision making and conduct regarding ‘private’ affairs.

What counts in a society as ‘private’ has obvious cultural dimensions (Westin 1967; Moore 1984; Johnson and Crowley 1986). In the West, philosophers in the liberal tradition, including John Stuart Mill (1859) and Ronald Dworkin (1985), have defended interests in a domain of unrestrained self-regarding conduct. Joel Feinberg (1983), who wrote extensively about the nature of moral harm, defended privacy as an aspect of liberty meriting constitutional protection. A number of theorists maintain that the decisional usage of ‘privacy’ mistakenly conflates privacy with liberty (Ely 1974; Parent 1983a,b,c). McCloskey (1971) argued that privacy cannot be adequately characterized as a species of liberty, particularly since protecting privacy requires constraints on liberty. Some efforts to restrict the kinds of interests that are called privacy interests have been political efforts aimed at keeping controversial practices such as abortion and homosexuality within the purview of restrictive public regulation (DeCew 1986; A. L. Allen 1992).

2.2 Normative Analysis: Why ‘Privacy’ is Important

Definitions of privacy are often offered as a prelude to accounts of why privacy is important. Moral philosophers maintain that respecting the many forms of privacy is paramount for respect for human dignity and personhood, moral autonomy, and a workable community life. Commentators often say that the high moral value of privacy is the justification for legal rights of privacy.

(p. 492)

Social science suggests that virtually every human culture protects privacy (Westin 1967; Altman 1977; Moore 1984). The importance of privacy is partly a matter of psychological health and comfort. Physical and informational privacy practices serve to limit observation and disclosure deemed inimical to well-being (Altman 1976). Psychologists have long emphasized the unhealthful effects of depriving individuals of opportunities for socially denned modes of privacy (C. Schneider 1977). The value of privacy in relation to religion and theology was considered in the 1980s (Johnstone 1984; Sutherland 1984). At least one philosopher explored questions about the normative meaning of human privacy in the face of an omniscient God (Lackey 1984).

The many accounts of privacy's positive, affirmative value found in the literature can be grouped into several broad categories, as follows: (1) intrinsic value accounts; (2) reductionist accounts; (3) personhood creation and enhancement accounts; (4) relationship creation and enhancement accounts; (5) functionalist accounts. Accounts of types (3), (4), and (5) are by far the most common.

First, seemingly implausible intrinsic value accounts maintain that privacy has inherent or unanalysable value. These have been more often criticized (McCloskey 1971; Gavison 1980; Allen 1988b) than defended. Secondly, reductionist accounts, such as Judith Thomson's (1975), hold that the value of privacy can be understood by reference to other familiar values.

Thirdly, personhood-creation and personhood-enhancement accounts are especially popular with moral philosophers. These emphasize the value of privacy in relation to deontological norms of personhood and moral agency. Privacy is some- times said to promote individuality, independent moral judgement, and the formation of self-concept (Kupfer 1987). For instance, Jeffrey Reiman defined ‘privacy’ as ‘a social ritual by means of which an individual's moral title to his own existence is conferred’ (1976: 39), while Benn (1971) claimed that privacy promotes respect for persons. Most commentators applaud Benn's account, but it has had noteworthy critics (McCloskey 1971; Hudson and Husak 1979). McCloskey doubted that there are sufficient empirical grounds for maintaining that privacy promotes person- hood. Hudson and Husak denied that the principle of respect for persons could itself require privacy protection or give rise to particular privacy rights. However, Benn did not argue, as the criticism implies, that a general principle of respect grounds indefeasible moral or legal privacy rights.

Fourthly, relationship-creation (Fried 1968, 1970; Gernstein 1970, 1978) and relationship-enhancement (Rachels 1975) accounts stress the respects in which privacy promotes desirable social relations. Relationship creation/enhancement theories are sometimes ancillaries rather than alternatives to personhood creation/ enhancement theories. Opportunities for privacy enables us to keep some persons at a distance so that we can enjoy intense intimacy with others, including friends, families, and spouses.

Fifthly, liberal functionalist accounts, exemplified by Westin (1967) and Gavison (1980), ascribe instrumental value to privacy corresponding to its many functions (p. 493) promoting the diverse interests of individuals, groups, and the state. Many philosophers point to the political morality of a limited, tolerant government as the moral basis of privacy rights against government control of sexuality, reproduction, and health care (Richards 1986). They say that a function of privacy is to make a certain kind of political community—a liberal, tolerant, non-discriminatory one— possible. Non-liberal functionalists reject pervasive liberal conceptions of privacy, but emphasize the significance of privacy otherwise understood for promoting norms of civility, democratic citizenship, and the common good (Sandel 1996; Etzioni 1999). Another functional value of privacy, this one stressed by economic theorists, is promoting efficiency through exclusive access to information needed to reward and further commercial enterprises.

Most defenders of privacy recognize that privacy is not an unqualified good and that privacy values may conflict with other important values. Several authors have attempted to defend privacy against claims that it is immoral or inconsistent with egalitarian modes of intimacy, family, or community (Weinstein 1971; Louch 1982; Boone 1983). A common theme in the defence of privacy is that privacy is a social as well as an individual good, and that privacy can be made consistent with regard for aggregate life and social responsibility. To take one example, philosophers have examined the consequences of the ‘private’ status of the family for moral education and equal opportunity (H. Cohen 1978; Fishkin 1983; Blits 1985; Montague 1988). Schoeman (1987) argued that children have individual moral privacy rights whose legal enforcement is not fundamentally at odds with desirable forms of family privacy and parental control. The truth of this is suggested by the US Children's Online Privacy Protection Act (2000), which requires parents to give consent before commercial web-site operators can collect personal data from children under 13. Parents function as guardians of young children's informational privacy. Teen privacy rights are more of a problem, where the law allows them full independent exercise. Many have argued otherwise in the context of teen abortion, but Schoeman concluded that the recognition of confidentiality rights for adolescents seeking professional medical or educational services does not undermine the intimacy of the parent-child relationship, but rather supports ideals of respect and love. One way to express love is by allowing and supporting independence.

2.3 Negative Critiques

Section 2.2 emphasized the analytic-style normative philosophical literature of the 1970s and early 1980s, which offered subtle accounts of the positive aspects of privacy from liberal points of view emphasizing personal autonomy, choice and individual rights. In the 1980s and 1990s, accounts of negative aspects of privacy accompanied both challenges to analytic methods of philosophy and critiques of liberalism from feminists, left-progressives, communitarians, and civic republicans.

(p. 494)

Critics of liberalism say that the theory rests on an incorrigibly problematic distinction between public and private. Indeed, the public/private distinction is some- thing of a myth (Radest 1979). The concept of privacy is sometimes depicted, however, as much more than a benign myth. Feminists charge that privacy rights are most often understood in the liberal tradition as strong, individual rights to freedom from government and community interference. Such rights would appear to obligate authorities and neighbours to turn a blind eye to the victimization— such as domestic violence—that takes place behind closed doors (Elshtain 1981; Okin 1982; MacKinnon 1984).

Sociologist Amitai Etzioni (1999: 7) offers a communitarian critique of US law: that ‘immoderate champions of privacy have … engaged in rhetorical excesses [with] … significant and detrimental effects’. Those effects including ‘delaying for years needed public actions by bottling them up in the courts’; blocking ‘the introduction of other needed public policies’, and having ‘a chilling effect on the consideration of other public policies that would advance the public good’. To illustrate his points he argues that privacy advocates blocked HIV testing of newborns, opposed laws to alert communities when convicted child molesters move into the neighbourhood, blocked efforts to institute national ID cards or other identifiers, and opposed mandatory government access to encryption keys.

The rhetoric of ‘fundamental rights’ and ‘sacred’ rights of privacy found in US law invites communitarian criticism. But the appearance of such rhetoric in several landmark cases belies the courts’ typical insistence upon balancing privacy interests in the name of national security, crime control, business needs, public health, the news, free speech, and administrative convenience. Moreover, the protection of some forms of privacy surely promote the common interest. Etzioni implicitly concedes this when he argues that medical records deserve more privacy than they get under current policy and practice.

From a civic republican perspective, Michael Sandel (1996) condemned the liberal reasoning found in privacy law. The liberal strain in constitutional decisions treats privacy rights as autonomy rights to individual self-determination. An older and more ‘republican’ vision of privacy, Sandel argued, sees privacy rights as rights that allow persons to flourish in families, intimate relationships, and communities that are constitutive of their identities. Sandel's critics worry that his attempt to revive the older, more republican understanding of privacy leaves us without a vocabulary for transforming oppressive and subordinating modes of traditional family and community life (Rosenblum 1998).

The left progressive critique, commonly forged by the critical legal studies movement, critical race theory, and feminist legal theory in the USA in the 1970s, 1980s, and 1990s, is founded on the general critique of the public/private distinction within liberal jurisprudence. First, it is unclear what ought to be classified as ‘public’ and what as ‘private’. Privacy is incoherent, or at least indeterminate (Kennedy 1982; Peller 1985; Mensch and Freeman 1987). Family life is highly regulated by public law. (p. 495) Marriage laws, divorce laws, child abuse and neglect laws, education requirements, adoption strictures—all these make the so-called private sphere a matter of public scrutiny and control. Left progressives warn that legal privacy rights cannot function as secure protections against intrusion in personal affairs. Secondly, government and other powerful elements within society interpret privacy as a negative liberty and use ‘privacy’ as an excuse for neglect of the interests of victims of those affairs. DeShaney v. Winnebago Department of Social Services (1989) exemplifies the liberal abrogation of collective responsibility for what are constructed as individual choices. A majority on the Supreme Court in the DeShaney case agreed that state government is not responsible for the consequences of its negligent failure to remove a child from the custody of his physically abusive father whose beatings led to irreversible brain damage. Thirdly, the quest for privacy is a quest for isolation and unaccountability that contradicts the inescapable social and spiritual nature of the self, and that is inimical to community flourishing (A. Cook 1990).

3. The Feminist Enterprise

The second enterprise, rooted in the politics of the 1960s, but flourishing in the academy in the 1980s and 1990s, is feminism. Feminist philosophers have focused on the relevance of privacy to egalitarian justice, explored the public/private distinction, advocated legal privacy rights to reproductive services, and often engaged in conceptual analysis and policy analysis. Anita Allen (1988b), for example, combined conceptual analysis, policy analysis and feminist analysis.

Theories of privacy and the private sphere have been one of the central contributions of feminist philosophy. In feminist theory, ‘privacy’ typically connotes the female predicament of domesticity—a set of social expectations for a life centred on home and family suggested but not strictly required by reproductive capacities. Some feminists view the concept of privacy as having an inherently conservative valence in the Western liberal societies, where it has had the greatest currency (Allen and Mack 1991). Feminists commonly argue that ideologies of'privacy’ have slowed the growth of the laws beneficial to vulnerable classes of women (Olsen 1989). The banner of privacy is said to wave away public intervention needed to address customary standards of behaviour that led to female under-participation in society outside the home and to male domination and violence behind closed doors. Feminist activists promulgated the slogan that ‘the personal is political’, to make the point that wrongs formerly shielded inside the male-dominated private sphere should be brought to light to collective redress.

While many women in the USA enjoy independent and egalitarian lifestyles, this was not always the case. Some women still lack basic equalities. Viewed historically, (p. 496) homes and families have been domains of power and privilege for men, particularly for men of economic means or social standing. Until the late twentieth century, Western law and custom allowed men to govern their household with a degree of freedom from outside interference rarely shared by women. For dependent children, servants, and slaves, the control exercised by male heads of household was nearly complete, in practice, if not in law.

Feminist philosophy has emphasized the inequality, subordination, and oppression that can exist in homes and families. Subject to the sovereignty of public political authority but themselves sovereigns over wives and children and other dependents, men easily subordinate others. The resultant ‘patriarchy’ is an oppressive society, in which many lead unfulfilled lives, vulnerable to unchecked abuse and domestic violence. Legal feminism has shared the concerns of philosophical feminism. Leading feminist legal theorists equate traditional ideas of privacy with barriers to escaping domestic confinement, traditional roles, and violence. Some legal feminists have argued that ideals of isolation, independence, autonomy, or individualism conflict with the reality women experience and obstruct egalitarian social justice (MacKinnon 1984). Women are not autonomous in the way men are. Child bearing, breast feeding, and heterosexual sex connect women physically and psychologically to others (West 1988). Other feminists claim that ideals of ethical care, compassion, and community responsibility—not privacy—dominate women's lives.

Many legal feminists blame the emphasis on privacy in abortion law for the failure of legal efforts to secure government funding for poor women's abortions (Olsen 1989; Colker 1992). Even pro-choice liberals sometimes oppose government funding for poor women's ‘elective’ abortions. For some, it is self-evident that a privacy right is not something the public should have to pay for. Philosophers have argued that the right to privacy, recognized by US courts, is a negative right againstgovernment decision making respecting procreation, not as a positive right to governmental programmes designed to make contraception and abortion services available (Sher 1982).

Though essentially sound, the feminist condemnation of privacy has been too categorical. The longing for personal, quiet time and personal decision making can linger long after the grip of patriarchy over women is loosened. While the quest for privacy can be isolating, it can also be rejuvenating in ways that make people more fit and ready for their roles in the family and community (Boone 1983). Feminists do not need to reject the language of public and private or the broad principles of inaccessibility, control and decisional autonomy that undergird privacy rights (McClain 1998). The lines between public and private are ‘socially constructed’, and as such they must be redrawn as necessary to further dignity, safety, and equality. Feminism rightly calls for a vigilant, critical stance towards whatever wears the privacy label. Feminists have good reason to be critical of what privacy has meant for women in the past, and what the rhetoric and jurisprudence of privacy rights can signal for the future. At the same time, one can see that women seeking greater (p. 497) control over their lives have already begun to benefit from heightened social respect for many forms of decisional privacy.

4. The Policy Analysis Enterprise

Privacy-related policy analysis commenced in the 1970s, alongside and in combination with the afore-discussed conceptual enterprise. The ‘applied’ philosophers who engaged in policy analysis were concerned about the precise roles accorded respect for privacy in law, government, medicine, and journalism. Applied philosophers sometimes combined conceptual analysis with policy analysis, by first clarifying the idea and value of privacy, and then making specific proposals for, for example, constitutional adjudication or medical ethics. The discussion of privacy in Bok's book Secrecy (1983) is a good example of policy analysis complemented by conceptual analysis.

4.1 Diverse Policy Domains

Concerns about privacy are pervasive in many policy contexts other than the one I will highlight—new technologies. Other key contexts include criminal justice and law enforcement, employment, business practices, journalism, and bioethics. In criminal justice and law enforcement, the justice of mandatory DNA testing and the use of thermal imaging technologies are but two of the recent policy questions that have found their way into American courts. A few philosophers have focused on privacy concerns raised by employment policies and practices. It has been argued that routine use of polygraphing violates the privacy rights of job applicants and employees. It has been argued that some uses of routine drug and alcohol testing unreasonably invade privacy. Smoking bans and dating restrictions also raise privacy concerns. Psychological testing raises privacy concerns, as do the increasing common practices of video surveillance and e-mail monitoring of employees. The ubiquity of computer use in the workplace has been of major concern to privacy watchdogs. Employers have access to the content of employee e-mail generated on network computers. Employers also have the capacity to store e-mail messages indefinitely and to track employee's Internet use generally, including all of the web sites they have visited. To complicate matters, employers have a legal right and responsibility to engage in some degree of e-mail monitoring to detect employee wrongdoing and productivity.

Privacy concerns are raised by the practice of retailers of using cameras, some- times hidden cameras, to deter and detect shoplifting in fitting rooms and sexual encounters in bathrooms. Businesses also engage in credit checking and reporting (p. 498) practices that have implications for personal privacy. The US Fair Credit Reporting Act beneficially regulates such practices. A recent US statute, Title V of the Financial Services Modernization Act ('Gramm-Leach-Bliley'), requires banks, insurance companies, and investment firms to adopt privacy policies and to notify customers about those policies in writing. Another recent statute, the Health Insurance Portability and Accountability Act, led to detailed regulations for the health-care industry mandating the security and privacy of medical records.

The non-consensual disclosure of the video movie rentals of Judge Robert Bork led Congress to enact the Video Privacy Protection Act. World Wide Web-based businesses collect vast amounts of personal information from Internet users seeking to make purchases or engage in other transactions (Bennett and Grant 1996). Airline companies, for example, collect names, addresses, credit card information, and travel plans and preferences. Book sellers collect telling information of the sort just described and, in addition, information about reading tastes. These can reveal ideological allegiances and personal preferences deemed personal and private. The US Federal Trade Commission has urged Congress to adopt statutes regulating personal information on the Internet. Thus far, Congress has responded only with legislation related to children's privacy on line.

Contemporary journalism has been under fire for what many believe are egregious invasions of privacy. Yet the Code of Ethics promulgated by the Society of Professional Journalists exhorts members to avoid ‘intrusion into anyone's privacy’. Although the code asserts the vital importance of the public's right to know, it also demands the protection of privacy. The code requires journalists to ‘Recognize that gathering and reporting information may cause harm or discomfort’. After an instruction that journalists ‘Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention’, the code observes that ‘Only an overriding public need can justify intrusion into anyone's privacy’. This statement could be read to say that journalists must give presumptive priority to protecting privacy.

Is respect for privacy an appropriate ethical imperative for journalists? While few philosophers have taken on the ethics of journalism, it is an area ripe for analysis and enquiry. One might argue that journalism should stand for openness, transparency, and accountability, and for the ‘public's right to know’ rather than for privacy. The public's rights to know arguably include: the right to monitor government, public officials, political candidates, public figures, and businesses receiving government aid or affecting the public welfare conduct.

It is now a common practice for policy-makers and policy analysts to consider the privacy implications of competing public policies. Ethicists and bioethicists, like other policy analysts, evaluate policies in part by reference to how well they respect personal privacy. For example, one of the major focuses of discussions of the ethical, legal, and social implications of the human genome project has been the implications of genetic research for personal privacy. Recent proposals to standardize and (p. 499) digitize medical records have raised concerns about medical informational privacy, as did the move to managed care.

Philosophers have actively participated in the policy debates about decisional privacy, for example, in the abortion debate. Some philosophers are persuaded that the humanity of the fetus made life, rather than the privacy of the mother, the overriding consideration for shaping legal policy. Others are persuaded that, because the unborn are contained in the body of women, privacy should control the direction of policy, vesting the right to decide the fate of the unborn in the hands of pregnant women, not the state. Philosophers have also embraced wildly different stances on assisted suicide and the right to die. Some philosophers have urged as a matter of individual or family privacy that decisions about sustaining the life of persons in hopeless comas or suffering from terminal illnesses be left to patients and their intimates rather than to physicians, hospital staff, or the state. Privacy has also been cited in debates over decision making about the care of newborns born with severe abnormalities, and in the debates over prenatal testing and surrogate mothers.

4.2 New Technology

Ongoing developments in surveillance, communications, and, especially, computer technologies are spawning discussions about the humanistic significance of privacy and just approaches to its regulation. The ethicists who are entering this arena of policy analysis are undertaking debates about the possibility and desirability of traditional notions of privacy in the age of the video camera, cell phone, and the Internet. Judith Wagner DeCew's book In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (1997) addresses the privacy implications of some of the new technologies, and also contains conceptual, policy, and feminist analyses. The inter- disciplinary essays in Technology and Privacy: The New Landscape (Agre and Rotenberg 1997) include conceptual and policy analysis.

We confront daily technology-aided assaults on individual informational privacy perpetrated by governments, corporations, and the media. The courts have held that many aggressive and invasive journalistic practices must be permitted in the name of First Amendment freedom of the press and the public's right to know. The growth of the Internet has brought about a range of concerns about the fate of personal privacy. One concern is that government records containing personal information will appear on line, facilitating stalking, unwanted commercial solicitation, and identity theft. E-commerce—business conducted through the World Wide Web— requires that consumers yield personal information. Personal information must be provided to merchants to ensure identity and financial responsibility. E-businesses request and use personal information to target advertising to customers based on established patterns of Internet use and stated preferences. Privacy concerns raised by e-commerce are about both overt information-gathering practices and the often (p. 500) covert data collection though ‘cookies’, serial number detection and government or employer monitoring of e-mail and web browsing. All of these practices raise ethical concerns for public and private policy-makers.

As a society, we also confront voluntary abrogation of traditions of domestic privacy and modesty. Exhibitionism and indifference to privacy are a fixture of popular culture. People stroll about public places engaged in cellular telephone calls about intimate details of their lives. Television, radio, and cyberspace are domains in which ordinary individuals, performers, and professionals voluntarily share vast amounts of personal information with viewing and listening audiences. Confessional programmes, documentary-style programmes, and new journalism project the intimate lives of willing (and unwilling) subjects into the public arena. Television programmes and web sites that allow audiences to follow closely the daily lives of previously anonymous men and women are popular in the USA and other countries. The ethics and the etiquette of privacy are raised by these developments.

Fair Information Practices

Privacy advocates have urged that those who must collect personal information should avoid collecting information that segments of the public are likely to deem especially personal, such as social security numbers, health and genetic information, family financial information, and information about sexual orientation, religion, and race. Privacy advocates also call for businesses and government to commit themselves to standards that have come to be known as ‘fair information practices’. Under typical models of fair information practices, these standards should be met to the extent possible.

  1. 1. The existence of data systems containing personal information should not be a secret.

  2. 2. Personal information should be collected only for narrow, specific purposes.

  3. 3. Personal information should be used only in ways that are similar to and consistent with the primary purposes for its collection.

  4. 4. Personal information should be collected only with the informed consent of the persons about whom the information is collected or their legal representative.

  5. 5. Personal information should not be shared with third parties without notice or consent.

  6. 6. For the sake of accuracy and relevancy, the duration of storage of personal information should be limited.

  7. 7. Individuals should have access to personal information about themselves and should be permitted to correct errors.

  8. 8. Those who collect personal data should ensure the security and integrity of personal data and systems.

Little analysis has been undertaken of what makes fair information practices ‘fair’. In any case, holding business and government to what are termed fair information (p. 501) practices, and holding journalists to consensual privacy protection standards, do not erase ethical concerns about privacy. The anonymous and libertarian realm of cyber- space is proving to be a domain in which women and minorities are vulnerable to actual and virtual privacy abuses perpetrated by fellow users, chatters, and game- players (Brin 1998; Dibbell 1998; Kang 1998; Wallace 1999; Wertheim 1999; A. L. Allen 2000). Civility norms mindful of the injurious nature of boundary crossing in cyber- space are needed.

Defining Privacy for Cyberspace

The conceptual questions philosophers asked about privacy in the 1970s are being asked again, this time in direct response to concerns about data protection in cyber- space. What is privacy, why is it important, and what does respect for privacy require of us? Yet even before the development of cyberspace, one of the most quoted definitions of privacy was Alan Westin's (1967), equating privacy with control over information. Westin wrote of the ‘claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others’. Since definitions of privacy vary with purposes for definition, theorists have defined privacy in terms of control to complement their generally liberal views that just government and ideal social practices should promote individual control over personal data. A communitarian critic of liberalism and liberal conceptions of privacy might also define privacy as individual control over personal information, for purposes of emphasizing the privacy sacrifices demanded of participation in responsible communities.

The conception that privacy is essentially about maintaining control over personal data seems tailor made for cyberspace (Cavoukian and Tapscott 1997: 9; Berman and Mulligan 1999). Three claims about control of personal information are pervasive in discussions of privacy in cyberspace: (1) that the term ‘privacy’ means control (or rights of control) over the use of personal data or information; (2) that the expression ‘right to privacy’ means the right or claim to control the use of personal data or information; and (3) that the central aim of privacy regulation should be promoting individuals’ control (or rights of control) over personal data or information. The three claims about control of personal information form a kind of paradigm in the significant sense that, individually and as a group, they cohere with liberal moral, political, and legal perspectives that emphasize wide sway for individual autonomy (A. L. Allen 2000).

'Privacy’ can mean informational privacy, but also physical, decisional, and proprietary privacy. As a stipulative definition or a description of what many people worry about in the context of online communications, however, ‘data control’ has appeal. However, even for purposes of discussing issues in cyberspace, there are good reasons for rejecting the privacy-as-data-control paradigm.

To begin with, control over personal data is neither necessary nor sufficient for states of privacy to obtain. The person in control of her data might elect to share (p. 502) personal information with others. In 1999 a nurse chose to broadcast her double mastectomy live over the Internet, to educate the public about breast cancer. In 1998 a married woman chose to share the delivery of her third child with other expectant parents by delivering her baby live over the Internet.

Men and women have chosen to train ‘Web cams’ on the interiors of their dwellings and then sell or give away real-time images of their daily lives. While their cameras and computers broadcast images of them to others, they have no physical privacy to speak of, and others possess otherwise private information about their home life. Control is not sufficient for privacy, nor is it necessary. For example, ‘a prison inmate locked in solitary confinement has privacy in the sense that he or she is often unobserved. But he or she has no control over personal information, since prison officials can initiate surveillance at will’ (Schoeman 1984a: 3).

The privacy-as-data-control paradigm has practical limits. Internet users disclose a great deal of information when they purchase goods and services or send e-mail. Internet users do not control personal data to the extent that they do not under- stand all the ways their data can be collected from them as they travel in cyberspace and remain powerless to demand meaningful limits on third-party disclosures. Because of the unreliable and adhesive nature of privacy agreements, even people using sites that offer opportunities to pre-authorize or refuse data collection and third-party disclosures, or that give notice of such practices, do not really control personal information.

The privacy-as-data-control paradigm obscures the need for concern that people will want too little privacy, and also the concern that people will want too much privacy. A sense of moral responsibility for one's conduct and a desire for morally responsive public policies might lead to abandonment of enhancing individual data control as the central objective of privacy policy. For example, the demands of responsible employment place a moral limit on policies that might purport to give workers greater control over personal financial and health information. Moreover, our political obligations to our country and fellow citizens make that impossible. As James Rule and Lawrence Hunter have observed, ‘if governments are expected to tax income or commerce … citizens can hardly expect control over information about their personal finances’ (1996:169–70). It would seem unwise to prohibit the constitutionally mandated decennial census-takers from collecting personal information about household income, welfare, social security, disaster relief, student loans, and so on.

Ethical qualms about the ‘privacy-control’ paradigm seem unavoidable, upon reflection. However, we ought not to adopt policies that compel us uncritically to yield personal data to every public and private sector actor who requests it. However, because personal information cannot and should not be completely controlled by individuals, it is both misleading and wrong to hold up ‘privacy control’ as such as a policy aim. Something very different and more complex than data control is the realistic aim of e-commere and marketing privacy policies. Precisely (p. 503) defining this ‘something very different’ is one of the most challenging tasks on the table for privacy theorists. Professor Amitai Etzioni (1999) concluded that policy- makers need to balance individual and entity interests in light of the common good. Paul Schwartz (2000) tries to get at this alternative to data control when he points to the need to think of privacy constitutively and to understand that respect for privacy requires contextual line-drawing. Privacy should be available, but well-ordered societies must require moral accountability.

5. Conclusion

Where, then, do the three enterprises stand? The conceptual enterprise remains vital, at least in its normative dimension. There is little demand for highly technical definitions of ‘privacy’; but the demand for clear, persuasive accounts of the value of privacy is great. The feminist enterprise remains vital, too. Feminist scholars continue to refine and build on their signature critiques of privacy and the public/private distinction. The policy analysis enterprise is in its heyday. Privacy is important, but so, too, are public health and safety, efficient, accountable government, the free press, and freedom from terrorism. Philosophers can make useful, important contributions to the task of articulating just and ethical ascriptions of privacy rights.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Cases Cited

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Bowers v. Hardwick, 478 US 186 (1986).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  DeMay v. Roberts, 46 Mich. 160,9 NW146 (1881).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    DeShaney v. Winnebago Department of Social Services, 489 US 189 (1989).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Eisenstadt v. Baird, 405 US 438 (1972).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Griswold v. Connecticut, 381 US 479 (1965).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          In Re Baby M, 109 NJ 396,537 A.2d 1227 (1988).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Katz v. United States, 386 US 954 (1967).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Loving v. Virginia, 388 US 1 (1967).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Planned Parenthood v. Casey, 112 Sup. Ct. 2791 (1992).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Roe v. Wade, 410 US 113 (1973).Find this resource:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Stanley v. Georgia, 394 US 557 (1969).Find this resource: