Judith Wagner DeCew
Much philosophical and legal discussion of the scope and value of privacy is quite recent, and until the past 120 years, privacy protection may have been taken for granted. Nevertheless, the concept of privacy is not new. Historical evidence that privacy has been discussed and valued for centuries is not difficult to find. Perhaps most famous is Aristotle’s distinction in The Politics (1941) between the polis, or political realm, and the oikos, or domestic realm. The political realm of governing, open to men only, was deemed by Aristotle to be a public arena, whereas the domestic realm of home and family was viewed by him to be a private arena. This Aristotelian distinction between public and private spheres of life has continued to influence and dominate much of the scholarship on privacy. John Locke provides another well-known example of a historical reference to a public/private distinction. Locke invokes the distinction in the chapter on property in his Second Treatise on Government (1988/1690). In the state of nature, he argues, one owns one’s own body and yet other property is held in common, or deemed public. When one mixes one’s labor with property—harvesting grain or catching fish, for example—that which was held in common becomes one’s private property. Although individuals are cautioned to leave “enough and as good” for others, private-property acquisition is heralded by Locke as an appropriate goal. These are two reminders that the concept of privacy has played a prominent role in major philosophical works since ancient times.
As Alan Westin has pointed out, while human beings like to think that their desire for privacy is distinctively human, studies have shown that virtually all animals share a need for privacy by seeking individual seclusion, territoriality or small-group intimacy (Westin 1967). Moreover, Westin argues persuasively that anthropological, sociological and biological literature demonstrates that most cultures around the world mirror these behaviors, and use distance-setting mechanisms to protect a private space to promote individual well-being and small-group intimacy, thereby exhibiting both the value of privacy and the need to preserve it. Although not all societies protect privacy in the same way, in virtually every society individuals engage in patterns of behavior and adopt avoidance rules in order to seek privacy. Cultures that rely on communal living often have religious or other ceremonies where privacy through isolation is provided. When privacy cannot be attained by individuals through physical isolation, people demonstrate ways of finding privacy by turning away or averting their eyes, or by finding psychological ways to protect their private thoughts and sentiments. Westin concludes that privacy is a cross-species and cross-cultural value, and that claims to individual privacy in some form are universal for virtually all societies.
The first serious discussions of the meaning of privacy in the United States developed in the law, as legal protection for privacy was granted and expanded. The initial legal protection of privacy was introduced in tort law. Warren and Brandeis (1890) argued that privacy protection should be established as a legal right to give individuals the right “to be let alone” to protect their “inviolate personality.” They urged that protection of individual rights over the person and one’s property were already established in common law, and that political, social and economic changes demanded recognition of new rights. Protection against actual bodily injury had been extended to protect against injury attempts, and protection from physical harm was expanded to protect human emotions through slander and libel. Similarly, they thought, new inventions and technology such as the printing press and camera called for a new step to curtail invasions of privacy by newspapers and photography, to protect a general right to the immunity of the person and the right to one’s personality, and also to guarantee one’s right to control information published in the media about oneself and one’s family. Thus they argued that privacy protection was already implicitly protected, could fill gaps left by other remedies such as nuisance, trespass and intentional infliction of emotional distress, and thus should be explicitly recognized as a right to privacy. Arguing that this would not be the addition of a new right, or judicial legislation, they urged it was reasonable to explicitly acknowledge individual rights to keep publicity about oneself and one’s likeness unavailable to others—as long as privacy protection did not prohibit publications of general interest protected by freedom of the press, or data on a “public figure” about whom the public might have a right to know some personal information. By 1905 this privacy right to control information about oneself was affirmed and expanded.
Legal theorists worked to articulate the meaning and scope of this tort privacy protection. William L. Prosser (1960) defended privacy but was troubled about the difficulty of such unresolved questions as whether one could have a reasonable expectation of privacy in public spaces, whether information that is part of the public record could still deserve privacy protection many years later and who should count as a “public figure” deserving a lesser expectation of privacy than normal citizens. Later cases and analysis suggest that answers to the first two questions are affirmative (Nissenbaum 2010; Melvin v. Reid (1931) 112 Cal. App. 283), and the last question remains a matter of debate. Edward J. Bloustein argued that all privacy wrongs were similar and conceptually linked as ways of protecting an individual’s inviolate personality, including an individual’s independence, human dignity, integrity and freedom from emotional distress (Bloustein 1964: 39ff). Privacy protection formed the essence required for an individual to be a unique and self-determined being and was the tool needed for protection against intrusions demeaning to individuality and affronts to personal human dignity that can occur in manifold ways.
Other commentators concurred that tort privacy protection could be meaningfully seen as a unitary right protecting one’s ability to control information about oneself, yet they provided alternative accounts of the moral value of this type of privacy. Some argued that the right protected one’s integrity as a person, as an essential context for the fundamental relations of respect, love, friendship and trust (Fried 1968). On this view, being able to control how much personal information one shares with others is necessary to define oneself and one’s values free from undesired impingement by others, and gives one the ability to determine one’s distance from others, namely with whom one remains a mere acquaintance, with whom one becomes a friend and with whom one becomes an intimate companion. Philosophers including Stanley I. Benn, Robert Gerstein, James Rachels, Jeffrey Reiman and Richard A. Wasserstrom generally agreed. Benn focused on the need for privacy to protect respect for persons, human dignity and personal relations free from being the object of scrutiny, and autonomy from social pressures to conform—a sphere of privacy as a necessary condition for one’s personality to bloom and thrive (Benn 1971). Gerstein emphasized privacy as required for intimacy, without uninvited intrusions that would lead to a chilling effect (Gerstein 1978). He argued that one cannot “lose” oneself in an intimate relationship if one is constantly worried about being overheard or put under surveillance. Rachels (1975) and Wasserstrom (1978) endorsed the view that privacy is necessary for the development of different relationships, and Reiman (1976) developed privacy as fundamental for intimacy and personhood, as a social ritual by which an individual’s moral title to existence is confirmed.
Despite the well-established protection of tort privacy to control information about oneself in the courts, and the almost universal acceptance of the value of informational privacy by the populace, it has been persuasively argued that the U.S. (and many countries in Asia) has developed a limited system of privacy protection that focuses on selfregulation within industry and government so that personal information is readily available. In contrast, the European Union (EU) and others have adopted an alternative vision highlighting consumer protection and individual privacy against the economic interests of firms and public officials (Newman 2008). The EU’s Data Protection Directive of 1995, now adopted in some form by all 27 EU nations, contains comprehensive rules with privacy commissioners or agencies empowered to enhance individual privacy protection, requiring that personal information not be collected or used for purposes other than those initially intended without individual consent, etc., despite the challenges of the September 11, 2001 terrorist attacks. This contrasts sharply with the U.S. approach allowing entities such as insurance companies and employers ample access to personal information, given a lack of governmental support for privacy legislation and a patchwork of privacy guidelines. The U.S. has generally stood behind efficiency and laissez-faire arguments that business and government need unfettered access to personal data to guarantee economic growth and national security. In contrast, the EU has sent a coherent signal that privacy has critical value in a robust information society because citizens will only participate in an online environment if they feel their privacy is guaranteed against ubiquitous business and government surveillance.
A second major way in which privacy protection has evolved in the United States is through the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” This is clearly related to privacy in tort law, as an unreasonable search or seizure is one way of gaining personal information. Initial privacy protection under this amendment relied on the literal wording from the Bill of Rights. Thus information gained from wiretaps outside of houses involved no search and no seizure, and the language of the amendment could not be extended to wiretaps (Olmstead v. U.S. (1928) 277 U.S. 438). This interpretation was overruled in Katz v. U.S. ((1967) 389 U.S. 347), judging that evidence obtained through an electronic listening and recording device in public was disallowed, even though there was no physical entrance into the area. The judgment favored an expectation of privacy even in a public place; it argued that Fourth Amendment privacy is not just about physical intrusion but protects people and not places. Brandeis’s famous privacy argument won the day: the Constitution recognizes the significance of one’s spiritual nature, feelings and intellect, and seeks to protect Americans in their beliefs, thoughts, emotions and sensations, prohibiting unjustifiable governmental intrusion upon the privacy of the individual no matter what means are employed. This second type of privacy protection from the Fourth Amendment has endured but may become controversial. Recent cases involving thermal-imaging devices challenged privacy, and other new technologies used intrusively will continue to test staunch Fourth Amendment privacy safeguards.
A third type of privacy protection has developed in constitutional law. In Griswold v. Connecticut ((1965) 381 U.S. 479), the majority opinion defended a married couple’s right to get information and instruction about birth control, and in the process first announced that despite there being no word “privacy” in the Constitution, this concept could be defended as a constitutional right to privacy. The majority defended the right to privacy as being older than the Bill of Rights, defended marriage as an enduring, sacred and intimate relation and association and defended one’s home as a special and private area. They cited famous cases they viewed as precedents—concerning personal decisions about one’s home, family and marriage, including the right to association, rights to educate one’s children as one chooses, rights to decide about a child’s study in private school, protection against mandatory sterilization and more. One can recognize an insight in the reasoning. There is no right not to be assaulted articulated in the Constitution, for example, but it is surely protected and deemed to be a basic right. There is good reason to believe that the founding fathers took privacy within marriage and family to be so fundamental that they saw no reason to mention it explicitly.
Nevertheless, the constitutional right to privacy has been harshly criticized by Judge Robert Bork (1990), philosopher William Parent (1983a, 1983B) and others. Perhaps most seriously, this third type of constitutional privacy protection has been viewed by some as not being about privacy at all. On one hand, these critics reject defense of the right as having no justifiable legal grounds as a privacy right but only a defense of liberty or autonomy. On the other hand, the right has been characterized as being overly vague, so that it is unclear what exactly it protects and what it does not. Regarding the first complaint, it has been successfully argued in reply that while we have multiple individual liberties such as freedom of expression, many do not seem to be about anything particularly personal or related to the types of concerns we might be willing and able to see as privacy issues. If so, then liberty is a broader concept than privacy and privacy claims are a subset of claims to liberty. Many philosophical commentators have supported this view that privacy protects freedom or liberty, and that privacy protection gains for us freedom to define ourselves and our relations to others (Schoeman 1984, 1992; Fried 1968; Reiman 1976).
A moving account of understanding privacy as a necessary and an indispensable condition for freedom comes from a literary quotation from Milan Kundera:
But one day in 1970 or 1971, with the intent to discredit Prochazka, the police began to broadcast these conversations [with Professor Vaclav Cerny, with whom he liked to drink and talk] as a radio serial. For the police it was an audacious, unprecedented act. And, surprisingly: it nearly succeeded; instantly Prochazka was discredited: because in private, a person says all sorts of things, slurs friends, uses coarse language, acts silly, tells dirty jokes, repeats himself, makes a companion laugh by shocking him with outrageous talk, floats heretical ideas he’d never admit in public, and so forth. Of course, we all act like Prochazka, in private we bad-mouth our friends and use coarse language; that we act different in private than in public is everyone’s most conspicuous experience, it is the very ground of the life of the individual; curiously, this obvious fact remains unconscious, unacknowledged, forever obscured by lyrical dreams of the transparent glass house, it is rarely understood to be the value one must defend beyond all others. Thus only gradually did people realize (though their rage was all the greater) that the real scandal was not Prochazka’s daring talk but the rape of his life; they realized (as if by electric shock) that private and public are two essentially different worlds and that respect for that difference is the indispensable condition, the sine qua non, for a man to live free; that the curtain separating these two worlds is not to be tampered with, and that curtain-rippers are criminals. And because the curtain-rippers were serving a hated regime, they were unanimously held to be particularly contemptible criminals.
(Kundera 1984: 260–61)
The analogies between Kundera’s scenario and electronic surveillance and street cameras common in society today are clear. There is further evidence that privacy and liberty are distinct concepts, that liberty is a broader notion and that privacy is essential for protecting liberty. We have many forms of liberty unrelated to what we might value as private and inappropriate for government intervention for personal reasons. The right to travel from state to state without a passport, for example, seems to be a freedom far different from the freedom to make choices about personal and intimate concerns about one’s body—for example, the use of contraception. The U.S. Supreme Court has recognized this, calling the constitutional privacy cases those about an “individual interest in making certain kinds of important decisions” (Whalen v. Roe (1977) 429 U.S. 589).
However this philosophical reply about the relationship between privacy and liberty does not address the second critique about the vagueness of the right. The constitutional right to privacy has protected information and access to birth control, the right of couples to choose the marriage partner of their choice regardless of race, the right of an individual to view pornographic materials in the privacy of his or her home (as long as there is no production or distribution of the material), abortion rights and ultimately the right of individuals—gay or straight—to engage in consenting adult sexual intimacy in their own homes, striking down anti-sodomy statutes. While these sorts of decisions are admittedly somewhat varied, the question is, what “kinds of important decisions” are worthy of being protected? The Court at one point said that the constitutional right to privacy protects certain decisions about home, procreation, family and marriage, and has added that it covers certain personal decisions about one’s lifestyle.
The problem is trying to articulate what exactly are the interests protected by privacy concerns and how they may relate to concerns about freedom, intimacy and selfdevelopment. Unfortunately this is a serious and intransigent difficulty. One approach has been to dismiss privacy as a philosophically important concept. Judith Jarvis Thomson’s famous critique of privacy in this sense is a reductionist view that there is no need for a right to privacy because all talk of privacy can be reduced to talk of rights to property and to bodily security and perhaps other rights (Thomson 1975: 295ff). Thomson’s account, however, has been widely and amply criticized by Thomas Scanlon (1975: 315), James Rachels, Jeffrey Reiman, Julie Inness (1992) and others who have argued that it is just as likely that the reverse is true, and rights to property and bodily security can be derived from a more fundamental right to privacy.