Privacy without the right to privacy

Monist

Volumn 91, Issue 1, 2008, Pages 81-107

  Anderson, Scott A ^a  

^a UNIVERSITY OF BRITISH COLUMBIA   (Canada)

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[No Author keywords available]

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EID: 61049089544     PISSN: 00269662     EISSN: None     Source Type: Journal    
DOI: 10.5840/monist200891114     Document Type: Article

References (24)

1. Judith Jarvis Thomson famously denied that we know what we are talking about when we talk about a right to privacy, but also denied that this was a problem, arguing that the concept of privacy is a "derivative" from other rights that we understand better. See "The Right to Privacy," Philosophy and Public Affairs 4 (1975), 295-322. This essay has had numerous respondents, arguing in favor of what she denies. See in particular Thomas Scanlon, "Thomson on Privacy," Philosophy and Public Affairs 4 (1975), 315-22
2. James Rachels, "Why Privacy is Important," Philosophy and Public Affairs 4 (1975), 323-33
3. Jeffrey Reiman, "Privacy, Intimacy and Personhood," Philosophy and Public Affairs 6 (1976), 26-44
4. Ruth Gavison, "Privacy and the Limits of Law," Yale Law Journal 89 (1980), 421-71
5. Anita Allen, Uneasy Access (Totowa, NJ: Rowman and Littlefield, 1988)
6. For an essay that anticipates Scanlon, Rachels, and Reiman, and contradicts Thomson, see Charles Fried, "Privacy," The Yale Law Journal 77 (1968), 475-93. These essays contra Thomson defend what might be described as a moderate position on privacy, construing it as control over intimate information or space, or access to a person. See n. 2 (below) for discussion of broader and narrower conceptions of privacy
7. The vertical divisions in this table roughly reflect disagreements about how broadly or narrowly the right to privacy should be construed. Hyman Gross, Louis Henkin, Richard Posner, W. A. Parent, and Raymond Wacks have decried the expansion of the right to privacy to include protection for personal autonomy or a "freedom to be left alone," and argue that it should protect principally control over certain sorts of information. See Hyman Gross, "Privacy and Autonomy," in J. Roland Pennock and John W, Chapman (eds.), Privacy: Nomos XIII (New York: Atherton Press, 1971), pp. 169-181
8. Henkin, "Privacy and Autonomy," Columbia Law Review 74 (1974), 1410-33
9. Raymond Wacks, "The Poverty of Privacy," The Law Quarterly Review 96 (1980), 73-89
10. Richard Posner, The Economics of Justice (Cambridge, MA: Harvard University Press, 1981), pp. 274-75
11. and W. A. Parent, "Privacy, Morality, and the Law," Philosophy and Public Affairs 12 (1983), 269-88
12. Arguing in favor of a broader conception of privacy, as in a "right to be left alone," are Samuel Warren and Louis Brandeis, "The Right To Privacy," Harvard Law Review 4 (1890), 193-220
13. More recently, in the same vein, see Edward J. Bloustein, "Privacy as an Aspect of Human Dignity," New York University Law Review 39 (1964), 962-1007
14. Ferdinand Schoeman, Privacy and Social Freedom (New York: Cambridge University Press, 1992)
15. Julie Inness, Privacy, Intimacy, and Isolation (New York: Oxford University Press, 1992)
16. Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca, NY: Cornell University Press, 1997)
17. Jean Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton, NJ: Princeton University Press, 2002)
18. J. Angelo Corlett, "The Nature and Value of the Moral Right to Privacy," Public Affairs Quarterly 16 (2002), 329-50
19. See especially Richard Mohr, Gay Ideas: Outing and Other Controversies (Boston, MA: Beacon Press, 1992), ch. 1
20. To consider another possible case, suppose that employees possess a right to privacy against their (prospective) employers with respect to their personal medical information. Say that this implies that they need not reveal such information to their employers, that the employers have no right to ask for it, and that employers cannot make use of such information if they come to possess it innocently. Nonetheless, if such information is of value to employers (as it may be), and employees know this, then savvy, healthy employees may divulge such information to employers in order to assure them that their health would not be a concern to their employers. If such a practice became widespread, it could disadvantage those who refuse to make such declarations. While the state might still require employers to refrain from taking such information into account, enforcing this regulation would require considerable collection and use of such information by the state, and would require employees who find themselves disadvantaged by their employers likewise to reveal considerable information about themselves in order to show that they had grounds for a claim of unfair discrimination. Moreover, it would require the state to prohibit certain forms of contract between employees and employers where healthy employees seek to benefit financially from their good health. For a skeptical look at using privacy law to prohibit such contractual arrangements, see Richard Epstein, "Deconstructing privacy: And Putting it Back Together Again," Social Philosophy and Policy 17 (2000), 1-24
21. For one instructive, historical take on these matters, see Reva Siegel, '"The Rule of Love': Wife Beating as Prerogative and Privacy," The Yale Law Journal 105 (1996), 2117-2207
22. Note that one of the first steps a rape victim is encouraged to take immediately after her assault is to submit to an examination in which DNA evidence can be collected. See, e.g., Jantje Wilken and Jan Welch, "Management of People Who Have Been Raped," BMJ 326 (2003), 458-59
23. These are public disclosures of embarrassing information; publicity placing one in a false light; and misappropriation of someone's likeness. See William Prosser, "Privacy," California Law Review 48 (I960), 383-423
24. Judith Shklar, "The Liberalism of Fear," in Nancy L. Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA: Harvard University Press, 1989), pp. 24-25