'What Is the Right to Privacy?' by Andrei Marmor
comments
A philosophical account of the right to privacy should explain what is the distinct interest that the right is there to protect, what it takes to secure it, and what would count as a violation of the right. In this paper I argue that the right to privacy is grounded on people’s interest in having a reasonable measure of control over ways in which they present themselves (and what is theirs) to others; I argue that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways which unjustifiably diminish one's ability to control how one presents herself to others. An account of the right to privacy should also explain, however, what makes it the case that people have wildly differing views about privacy and about what counts as a violation of the right. The paper aims to answer some of those questions as well.
The right to privacy is a curious kind of right. Most people think that we have a
general right to privacy. But when you look at the kind of issues that lawyers and
philosophers label as concerns about privacy, you see widely differing views about the
scope of the right and the kind of cases that fall under its purview. Consequently, it has
become difficult to articulate the underlying interest that the right to privacy is there to
protect – so much so that some philosophers came to doubt that there is any underlying
interest protected by it. According to Judith Thomson, for example, privacy is a cluster of
derivative rights, some of them derived from rights to own or use your property, others
from the right to your person or your right to decide what to do with your body, and so
on. Thomson’s position starts from a sound observation, and I will begin by explaining
why. The conclusion I will reach, however, is very different. I will argue that there is a
general right to privacy grounded on people’s interest in having a reasonable measure of
control over the ways in which they can present themselves (and what is theirs) to others.
The right to privacy is important, I will argue, but narrower in scope, and fuzzier in its
boundaries, than it is commonly understood.
Marmor argues
The right to privacy is there to protect our interest in having a reasonable measure of control over ways in which we present ourselves to others. The protection of this interest requires the securing of a reasonably predictable environment
about the flow of information and the likely consequences of our conduct in the relevant
types of contexts. So what would count as a violation of a right to privacy? The answer is
that your right to privacy is violated when somebody manipulates, without adequate
justification, the relevant environment in ways that significantly diminish your ability to
control what aspects of yourself you reveal to others. One typical case is this: you
assume, and have good reason to assume, that by doing X you reveal Y to A; that is how
things normally work. So you can choose, on the basis of this assumption, whether to X
or not. Now somebody would clearly violate your right if he manipulates the relevant
environment, without your knowledge, making it the case that by doing X you actually
reveal Y not only to A but also to B et al., or that you actually reveal not just Y but also
W to A (and/or to B et al.), which means that you no longer have the right kind of control
over what aspects of yourself you reveal to others; your choice is undermined in an
obvious way. This is the typical case. But there is another type of violation: suppose that
the government kindly informs us that from now on it plans to listen to every phone
conversation we make and keep a digital recording of it on a giant computer. The government does not want to surprise us, so it duly informs the public that this is how
things are going to work from now on.
There is a clear sense that due notice notwithstanding, such a government policy
would amount to an unacceptable infringement of our right to privacy. Why is that?
Presumably because it diminishes the space in which we can control what we reveal
about ourselves to an unacceptably small amount in an important domain of human
activity. It just excludes too much from the ordinary means of communication available
to us that we can control to a reasonable degree. You can still have a private conversation
with your friend in Chicago, the government says, you just have to fly there and meet the
friend in person. That seems like an unreasonable restriction of the environment in which
we can exercise control over aspects of ourselves that we reveal to others.
Actual cases tend to be more complicated, of course. Suppose, for example, that the government does not actually listen to our phone conversations, only to a random and tiny sample of them. And it does not keep a record of the content of our phone
conversations on a giant computer, only the (so-called) metadata. This is what we are
told is actually happening in the U.S. these days. Is it a violation of our right to privacy?
People have very different responses: some think that it obviously is; others shrug their
shoulders, not so sure why should they care. There are two main reasons for these
differing attitudes. First, remember that the underlying interest protected by the right to
privacy is one of having a reasonable measure of control over ways in which we present
ourselves to others. Reasonableness is a rough and vague criterion; people may have
different views and different attitudes about how much control they want to have with
respect to different aspects of their lives.
Second, and more importantly, in many cases of putative violations of privacy, there is an additional concern about the possibility of abuse of the information obtained.
Many people are concerned about information obtained by the government because they
do not trust the government; they fear that governments will abuse information they
possess, putting people in jeopardy of unwarranted governmental scrutiny or even
persecution. Others are more concerned about information gathered by privateorporations. Either way, the concern here is not directly about privacy; it is a concern about abuse of power that might follow from the fact that some particular kind of entity knows too much about you. The concern is that the entity in question may do things that it should not be doing with the information it has, in ways which would be detrimental to your interests. Think about your credit card information: there is nothing wrong with somebody having it, as long as they only charge you for what you owe. You do not want your credit card information in the wrong hands only because you fear that it will be misused.
The concern about possible abuse of the information people might have about us pervades many of the privacy protections we have in law. The stringent protection of medical privacy, for example, is clearly motivated by the fear of abuse: we fear that employers, insurance companies, credit agencies and others may rely on such information to our detriment. If you know that I have cancer, you might not give me a job or, if I already work for you, you may be reluctant to promote me. Most of these concerns, however, are not directly about matters of privacy; the interest they protect is an additional concern that is specific to the kinds of abuse of information that particular entities are suspected of.
Marmor argues that
In practical terms, the right to privacy is a right to a reasonably predictable and secure environment that enables people to have a reasonable measure of control over how they present themselves to others. This is not, however, the idea of a zone of privacy that many lawyers and philosophers have in mind. In fact, I want to argue that there is no such zone, and no good reason to think about privacy in those terms. We do not need to move in the world protected under an opaque dome, giving us the space to do in it as we please. Thinking about our interest in privacy in terms of a protected zone, determining boundaries that are to be kept concealed from the public eye, is precisely the kind of conception that makes the right to privacy vulnerable to criticism by feminists and other critical theorists. They have long argued that privacy is the enemy of equality, putting women and other vulnerable segments of society at the mercy of the powerful, who can shield patriarchal conduct behind the veil of privacy. Indeed, if you think about privacy as a protecting dome, keeping the public eye from prying into your private conduct, practical concerns about the entrenchment of patriarchal social structures, and perhaps other forms of harmful behavior, is not without merit.
The dome conception of privacy suffers from two main flaws, however. First, it misconceives the nature of the underlying interest that privacy is there to protect. Privacy is not there to protect conduct or actions. Our concern with privacy is not about doing things; with very few exceptions, mostly of the sex and nudity kind of stuff, there is hardly anything that is impermissible or wrong to do in public but somehow permissible to do in private. If it is wrong for me to yell at my daughter in public, it is also wrong to yell at her in private. Admittedly, some things that are bad to do might be even worse if done in public. Publicity often adds a further element of humiliation or embarrassment that might be avoided in private. However, it is very rarely the case (again, sex, nudity and stuff like that aside) that the permissibility of an act depends on it being done in private. If there is something you should not do if people know about it, doing it in private would not make it kosher.
Now, you might think that the issue is not about moral permissibility but perhaps more about propriety; certain forms of behavior may be morally permissible, yet doing them in public is just improper or socially unacceptable or such. No doubt, we can think of many examples. Suppose that one of my acquaintances died recently and that I have always regarded him as rather stupid and insufferably arrogant; it would be totally fine to say that to my wife, in private, but not so nice to express this thought in his public eulogy. Or, to take another example, I presume that you really do not want to see the couple sitting next to you in the restaurant hitting it off too passionately or, to the contrary, having a nasty row. But these kinds of examples, where we think that certain forms of conduct would be inappropriate in public though unobjectionable in private, are not about protection of privacy. On the contrary; these are cases in which it is the public zone that is in need of some protection, not the private. People have some legitimate expectations about what they want to encounter in public spaces of various kinds. It is the nature of our public spaces and communal interactions that are at stake here, not privacy.
The second reason for thinking that the dome conception of privacy is misguided pertains to the confusion between an interest in privacy and the much broader interest we have in personal autonomy. There are many areas in life, and the ways we can choose to live it, that should be free from legal interference; that does not make them an issue of privacy. A good case in point is the famous U.S. Supreme Court decision in Griswold v. Connecticut that introduced the idea of a constitutional right to privacy into American jurisprudence. This was a noble decision on the wrong grounds. Griswold concerned the right to use contraceptives. The state of Connecticut sought to make contraceptive use illegal; it prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The Supreme Court decided that the state law violated a constitutional right to privacy. Perhaps the Court thought that anything to do with sex is a matter of privacy, or perhaps it just used the opportunity to elevate the right to privacy to a constitutional level (presumably both). Either way, the main moral issue in Griswold has nothing to do with privacy. People should have a right to use contraceptives because it is an exercise of their right to personal autonomy. People have a right to decide whether and when to have children, just as they have many other rights about decisions and choices that shape the kind of life they want to lead. Surely we agree with the Griswold decision that it is not the business of the law to regulate such matters. But that does not make it an issue of privacy. It is not the business of the law to determine what career I should chose, whom I should marry or what hobbies I should cultivate. It is not the business of the law to decide where I should live, how I spend my vacation or with whom, what books I should read, and so on and so forth. All these issues, and countless others, should be left for people to decide for themselves, for obvious reasons. But none of these choices and decisions, essential for any reasonable exercise of our personal autonomy, has anything to do with privacy. If you equate the right to privacy with the right to personal autonomy, you just admit that there is no particular interest in privacy that is worthy of protection, distinct from the much broader and, admittedly, more important, right to personal autonomy. For reasons that I have tried to articulate above, I think that this would be a mistake.
A philosophical account of the right to privacy should explain a few things. It should explain what the distinct interest is that the right is there to protect, what it takes to secure it and what would count as a violation of the right. I argued that the interest in question is our interest in having a reasonable measure of control over ways in which we present ourselves to others. I argued that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways that unjustifiably diminish one’s ability to control how one presents oneself to others.
An account of the right to privacy should also explain, however, what makes it the case that people have such wildly differing views about privacy and about what counts as a violation of the right. I hope that the account offered here gives some answers to those questions as well. For one thing, we should not confuse privacy with autonomy. Secondly, remember that the interest that grounds the right to privacy is rough and vague to begin with because it is an interest in a reasonable amount of control, and people may have reasonable disagreements about what reasonableness requires. The same goes for the reasonableness qualifier concerning the predictability of the environment and what would count as reasonable risks that people should be expected to assume in their daily lives. The right to privacy is just not the kind of right that can be expected to have sharp boundaries. Finally, I argued that many of the practical and legal concerns we face about matters of privacy are driven by the fear of abuse of power, which is an additional concern and one that is specific to the particular kind of entity suspected of potential misuse of information.
