Roots of Privacy — A philosophical introduction
The distinction between the public realm and the private realm in the traditional sense is taken to be the division between the state and society. In common parlance, the state refers to a cluster of institutions, based on the apparatus of government which is the executive, parliament that is the legislative and courts which form the judiciary. These institutions are ‘public’ in the sense that they are responsible for the collective organization of community life and are funded at the public’s expense.
Society, on the other hand, is a collection of autonomous groups and associations, comprising of family, kinship, groups, private businesses, trade unions, clubs, community, and similar institutions. Such institutions are ‘private’ in the sense that they are set up and funded by individual private citizens to satisfy their own interests rather those of the larger society. On the basis of this ‘public/private’ dichotomy, politics is restricted to the activities of the state itself and the responsibilities which are exercised by public institutions which are nothing but extensions of the state. Those areas of life in which individuals do manage for themselves — economic, social, domestic, personal, cultural, artistic and so forth — are therefore considered as ‘non-political’ thus ‘private’.
Varyingly, the ‘public/private’ divide is also used to express a more subtle distinction, which exists between ‘the political’ and ‘the personal’. Although society can be distinguished from the state, it nevertheless contains a range of institutions that may be designated as ‘public’ in the sense that they are open institutions, functioning in public and the general public has relatively free access to them.
When compared with domestic life, private businesses and trade unions, etc. can, therefore, be seen to have a relatively greater public character as they engage with individuals at large. Accordingly, such institutions form the part of public activity which ought to stop when it infringes upon ‘personal’ affairs. For the same reason, while many people are prepared to accept that a form of politics exists in the workplace, they may be offended and even threatened by the idea that politics intrudes into family, domestic and personal life. Hence privacy on one side is the inherent claim of an individual or group to insulate themselves, or information about themselves from the institutions, organizations, associations, or establishments, and on the other it’s also the capacity of the individuals to make themselves available, express themselves, or divulge information about themselves selectively and as per convenience.
Evolution of the concept
The word ‘Privacy’ comes from the root ‘privus’, which means “single, or alone.” Etymologically the root of the word Privacy signifies the importance of the distinction between what is private and what is public. Privacy thus constitutes a domain around an individual which includes all those things that are parts of individual’s being, such as body, home, property, thoughts, feelings, secrets, and identity.¹
The concept of ‘polis’ which means the public or political sphere, as distinguished from ‘Oikos’ meaning private or domestic sphere can be traced back to the Greek philosopher, Aristotle. After him it was Locke who explained this distinction as the realm reserved for self-regulation opposed to the realm of governmental authority.
Further the distinction of ‘public/private’ arises again in Locke’s discussion of property in his ‘Second Treatise on Government’. In the state of nature, all the world’s bounty is held in common and is in that sense public. But one possesses oneself and one’s own body, and one can also acquire property by mixing one’s labour with it, and in these cases it is one’s private property.
Privacy as a concept is multidimensional but not ambiguous and has both a descriptive i.e. value-neutral and normative (i.e. value-loaded) meanings. The term “private” is usually used to invoke rights, as in when one says “this is a private conversation,” thereby meaning that one has no right to listen to what is being talked about. It would be interesting to note here that there are cultures, e.g. Hutterite colonies, in which to describe an action as having been done “in private” could at times translate as an accusation of impropriety rather than a claim to immunity from interference. In other words, when a claim to privacy is evoked normatively, then the norm attached to it can be of negative as well as positive consequences, depending upon the circumstances and traditional understandings of that particular culture.²
A more organized and pragmatic discussion on the concept of privacy as we perceive it today has its beginning with the famous essay by Samuel Warren and Louis Brandeis titled “The Right to Privacy”. They cite the essential need in common law for the complete protection of the individual in person and in property and the need, time and again to define the exact nature and extent of such protection.³ Moreover they further contend “political, social and economic changes” coupled with “the right to be let alone” have raised a new need to protect the privacy of the individual. They argue that in “early times” the law gave the remedy only to the physical interferences but gradually the scope of interferences has not just widened but also diversified. For this purpose there occurs a need to discuss a fresh, the definitions, nature and scope of the concept of privacy.
Nature of privacy as a concept — an analysis
As is apparent the concept and the consequent exact nature of privacy is remarkably complex and intertwined with various other notions.⁴ As much as it has also been contended that privacy is encompassed and secured by other concepts and isn’t independent in itself yet on the other side it has been time and again argued that privacy though connected with other concepts, has its own conceptual and ethical uniqueness and needs to be treated so.⁵
This debate ordains a detailed analysis into the nature of the concept in its various forms and inter-connectedness with other concepts.
Privacy as “to be left alone”
Out of the many attempts to define privacy the one by Judge Cooley is the most simple and familiar. He defines it as “the right to be let alone”.⁶ Taking a leaf from it the 1967 Nordic Conference on the Right to Privacy defined the right to privacy as “the right to be let alone to live one’s life with the minimum degree of interference”.⁷
This view stems from the negative conception of liberty, along the lines described by John Stuart Mill in his essay, On Liberty. Accordingly, wherein an individual is free of interference from both state and the society and is at liberty to live his/her life as one deems fit for oneself until his/her action doesn’t pose any threat to others in any way.
The usual scenario, which the phrase “invasion of privacy” brings to mind do commonly takes the form of coercive interferences with or intrusions upon the individual. Prying eyes of neighbours intrude upon one’s home life; government officials interfering with one’s correspondence; over-zealous press reporters or photographers hound one mercilessly; advertisers make unauthorized use of one’s name, identity or likeness. In each such case and many others, the individual who claims that his or her right to privacy has been violated is most of the time claiming, that right to be let alone, not to be interfered with has been violated.
Although there appears to be a close connection between the concepts of negative liberty and privacy, both can’t be regarded identical. To equate them thus would be a mistake and potentially confusing. Consider, for example, a regulation of the government that interferes with freedom of expression like say public criticism of a certain government or leader is forbidden. In such a case, one’s “negative liberty” is clearly undermined but one’s privacy is unaffected.
On the other hand at times privacy can be intruded or lost without violating liberty.
When someone’s telephone is tapped, mails read, private conversations
recorded, intimate activities observed, without that person’s knowledge or consent there is a loss of privacy even though freedom of action, thought, and expression remain untouched.
It might be argued that unearthing of the fact that one’s privacy has been overrun may cause distress and undesirable consequences like embarrassment and future activities might be curtailed but none of this may ever need happen and all these consequent disruptions of liberty are the consequences and after-effects of the violation of privacy and not a direct violation of one’s liberty. Also one may never discover the violation or even if one does, he/she may remain indifferent. Yet the absence of hurt does not anywhere annul or diminishes the fact that violation of privacy has happened ideally.
The ideation of the concept of privacy that marks its infringement regardless of it being accompanied with psychological injury or distress enlarges the scope of its definition in comparison to those definitions which exclusively are based on equating privacy with freedom from psychological injury. The reason for this simply is that any conception of privacy conditionally based exclusively on the occurrence of psychological injury like mental distress or embarrassment excludes the situations in which privacy is intruded upon without any psychological impact on the victim.
It has been further expounded by H.J.McCloskey in his observation that privacy and non-interference i.e. negative liberty aren’t completely identical and may even come in conflict with each other as in when it becomes necessary to interfere with the liberty of people to spy on any individual to protect the privacy of others. Such interferences though hamper liberty yet enhance privacy.⁸
Lubor Velecky differs from McCloskey and asserts that “mere availability of information about what is covered by the right to privacy does not in itself result in the invasion of privacy.”⁹ He argues that any invasion of privacy can only be regarded to happen, when information about private matters is used unjustifiably or for bad motives, rather than when such information is acquired or disseminated. Consequently, if this line of argument is followed, then, if the motives of a peeping Tom were pure, and if he/she made no malicious use of the private information, there would be no loss of privacy and hence no violation. This consequence of Velecky’s argument seems utterly implausible. Surely one’s privacy is diminished or violated by the peeping Tom whatever his/her motives, and regardless of what use, if any, he makes of the information he acquires.
A definition of privacy as a claim to immunity from intrusion, within a special “zone” of action of one’s private affairs, though is assuring, yet it carries a few difficulties. It is not an easy task to make an exhaustive list of things comprising the “zone” of privacy/non-interference. Moreover rules defining this zone of privacy would depend on social convention (and sometimes on legal sanction as well) which in themselves are evolutionary in nature, thus changing from time to time.
Also, there exists considerable variation within and between cultures on the question as to which acts or relationships or facts about a person are to be counted as his or her “private affairs.” The need for privacy norms may be universal, but the specific content of the norms found in various societies differs widely. And in any given society privacy norms can change over time. The shortcoming of this is that cross-cultural comparisons become difficult which consequently becomes a hindrance in deducing any universal measure of privacy in a rapidly integrating world.
Privacy as “control of information”
The ‘information control’ view of privacy holds it as a “claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others.¹⁰ Privacy in this way has also been defined as “the control we have over information about over selves”¹¹ and also encompasses “the individual’s ability to control the circulation of information relating to him.”¹²
One of the advantages of defining privacy based on the concept of information control is that it enables us to identify clearly the interests involved and the underlying reasons when people oppose and resist surveillance or monitoring of their affairs. The interest in privacy is claimed to be an interest in the self-regulation of one’s communications with others. It reflects the desire of individuals and groups to disclose what they are doing only on their own terms and to whom they choose. K. Greenwalt observes “If we voluntarily reveal ourselves to family, friends, work associates, in matters that are commonly the subject of discourse among members of such groups, we do not speak of any loss of privacy. Yet if we wish to keep some matter private from members of these groups, and if such matters are nevertheless revealed, privacy has been lost. Thus, for a broad range of disclosures, privacy does turn on control.”¹³
The information control definition of privacy enjoys considerable popularity among jurists and philosophers. Many and perhaps most, of the standard cases in which individuals or groups make legal or moral claims to privacy, are cases in which it is control of information about themselves which is at issue. Information control definitions also have an advantage over negative-liberty/interference definitions; as it enables us to understand how the concept of privacy can encompass both regulation of personal information and control over divulging or communicating such information with others which we may consider private. Yet the definition of privacy based on information control remains shy of incorporating the instances of privacy violation wherein it is caused by illegitimate intrusions or interferences upon the individual space.
The ideal of privacy has clearly become one of the fundamental values of recent history and present times. The concept of privacy has broad socio-philosophical and anthropological roots and any definition of the concept must reflect this fact so that the fuzzy cross-sectional edges aren’t misunderstood or misrepresented.
Moreover in the present age of information revolution, internet and social media coupled technological advancement, mass collection of user data (the data which comprises of a lot of such information and patterns of activities which even users are not completely aware of, about themselves.) by both private and governmental organizations and credible threats of its misuse and mass surveillance, it becomes pertinent to have a demystifying discourse on concept the of privacy so that a rational set of ethical standards could be developed through informed consensus.
Pragmatically, thus “privacy” should be defined by combining the two conditions that is control over information about oneself and over who can sense us, and non-interference in private affairs. These conditions as it appears are jointly necessary. Understanding of the concept of Privacy in a practical sense requires to stem from a disjunctive amalgamation of the two conditions so that it would cover virtually all of the cases agreed to fall within the ambit of privacy.
[1] Yael Onn, et al., Privacy in the Digital Environment, Haifa Centre of Law & Technology, (2005) pp. 1–12 https://books.google.co.i/books?id=yeVRrrJw-zAC&pg=PA1&redir_esc=y#v=onepage&q&f=false
[2] Stanley Benn points out that the concept of privacy functions in a variety of different ways. When a person appeals to privacy in a norm-invoking fashion, the norm will sometimes, as in the Hutterite example, be prohibitive rather than immunity-conferring. Moreover, privacy can function mandatorily as well. For example, it is considered improper in our culture for strangers to attempt to observe one’s “private parts,” but equally improper for one to expose those parts (deliberately or negligently) to them. See: S.I. Benn, “Privacy, Freedom, and Respect for Persons,” in Privacy, Nomos, Vol. 13 (1971), pp. 1–3.
[3] Warren, S. and Brandeis, L., 1890, “The Right to Privacy,” Harvard Law Review, 4: 193–220.
[4] William L. Prosser, “Privacy” (1960), 48 California Law Review 383, at 389.
[5] Judith Jarvis Thomson, “The Right to Privacy” (Summer 1975), Philosophy and Public Affairs no. 4, p. 313.
[6] Cooley, Torts, 2nd ed. (1888)
[7] In Privacy and the Law. Report of “Justice,” British Section of the International Commission of Jurists, 1970, p. 45.
[8]“The Political Ideal of Privacy” (October 1971),21 Philosophical Quarterly no. 85, p.305.
[9] “The Concept of Privacy,” Lubor C. Velecky, in John B. Young (ed.) Privacy (New York: John Wiley & Sons, 1978), p. 20.
[10] Privacy and Freedom, 1967, p. 7
[11] An Anatomy of Values: Problems of Personal and Social Choice (Cambridge: Harvard U. Press, 1970), p. 140.
[12] The Assault on Privacy (Ann Arbor: U. of Michigan Press, 1971), p. 25.
[13] “Privacy and Its Legal Protections” (September 1974), Hastings Centre Studies, Vol. 2, no. 3, p. 46.
