What Is the Right to Privacy?

Philosophy and Public Affairs

Volumn 43, Issue 1, 2015, Pages 3-26

  Marmor, Andrei ^a  

^a NONE

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EID: 85090539679     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/PAPA.12040     Document Type: Note

References (29)

1. J. Rosen, The Unwanted Gaze: The Destruction of Privacy in America (New York: Random House, 2000). As far as I can tell, these writers, and many others, regard the underlying interests protected by privacy as multifarious and loosely connected to ideas of intimacy, unwanted contact, protection of personal reputation (Rosen), some proprietary interests, and others.
2. A. Allen, Uneasy Access: Privacy for Women in a Free Society (Totowa, N.J.: Rowman and Littlefield, 1988);
3. A. Lever, Privacy (New York: Routledge, 2012). A. Allen and J. Rosen have argued for the view that the right to privacy should protect people from unwanted sexual advances, slurs, and even some forms of physical contact (particularly of a sexual nature).
4. J. DeCew, In Pursuit of Privacy (Ithaca, N.Y.: Cornell University Press, 1997). Some see the right to privacy as a right that protects anything that concerns concealment of some sort, even such things as voting in a ballot booth.
5. R. Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (1980): 421;
6. J. J. Thomson, “The Right to Privacy,” Philosophy & Public Affairs 4 (1975): 295, at p. 307.
7. Suppose that it is not a photo but a document, say, a diary you wrote, that you happened to send to Janet by mistake, and she read the whole thing. Of course, we might think that it was not very nice of her to read the stuff; it is a temptation that Janet should have resisted. But I doubt that she violated any right of yours. However, I have come to learn that people have very different intuitions about this. My own sense is that people can do wrong even if the wrong does not consist in the violation of another’s right. The photo example, suggested to me by one of the reviewers, nicely avoids these complications.
8. It is important to bear in mind that we have many property interests in information that are not based on privacy concerns. Lawyers call them intellectual property, which includes copyright in creative work, trademarks and trade secrets, many kinds of patents, and others explicitly created by contracts. In short, not every property right in information is grounded in the kind of concerns we aim to protect by the right to privacy.
9. T. Scanlon, “Thomson on Privacy,” Philosophy and Public Affairs 4 (1975): 315.
10. T. Scanlon, for one, doubted that Thomson’s intuitions can be generalized to the extent that she thought. But I cannot say that he came up with convincing counterexamples in his response.
11. A. Moore, “Privacy: Its Meaning and Value,” American Philosophical Quarterly 40 (2003): 215.
12. J. Rachels, “Why Privacy Is Important,” Philosophy and Public Affairs 4 (1975): 323.
13. Cf. T. Nagel, “Concealment and Exposure,” Philosophy and Public Affairs 27 (1998): 3.
14. See, for example, Rosen, The Unwanted Gaze, pp. 15–17, citing research by Goffman and others about our need to keep physical distance. One familiar example we all experience is the embarrassment in riding in an elevator with strangers; one never knows where to look.
15. A. Allen, “An Ethical Duty to Protect One’s Own Information Privacy?” Alabama Law Review 64 (2013): 845.
16. Gavison, “Privacy and the Limits of Law,” p. 431.
17. Namely, the data about numbers dialed, their time and location, and so on—the kind of data that cell phone providers have anyway.
18. Following the disclosures of Edward Snowden, the concern about government surveillance and the many possibilities of its abuse has gained a lot of attention. It turns out that the laws regulating government surveillance, at least in the United States, leave a lot to be desired. See, for example, N. Richards, “The Dangers of Surveillance,” Harvard Law Review 126 (2013): 1934.
19. Perhaps the word manipulation implies that the relevant act has to be deliberately manipulative; I am not sure about that, but in any case, we should not derive any moral conclusions from this.
20. An actual example of something similar came up with the full-body scans the Transportation Security Administration started using for security screening at airports, effectively allowing the TSA agents to see through people’s clothes, almost as if naked. Many people found it very disturbing and in violation of their right to privacy. Perhaps it was (the machines, we are told, have been slightly modified since, blurring the image to some extent); but in this case, unlike in the example I mention in the text, there is some level of individuation or identification, at least de re; initially, the TSA agents could see who the person they were screening was, even if they were very unlikely to have any de dicto individuation. I find it interesting that many people were reassured by the modification introduced later by the TSA in which the screening agents can no longer see or know anything about the person they screen. If that is true, I do not see how the practice violates our right to privacy.
21. I would not want to claim that making fun of someone in public, without their consent, is always wrong. Comedians and late-night talk show hosts do that all the time, and mostly it is not objectionable. But they usually make fun of people who deliberately expose themselves to public attention, like politicians and celebrities, and thus they can hardly complain about becoming objects of public entertainment.
22. It is, of course, a separate question of who gets to monitor the CCTV, and, if it is the government or, say, a private corporation, then, as discussed above, additional concerns about potential abuse might come into the picture as well.
23. Perhaps an argument can be made that respect for a person’s dignity requires a recognition that people act for reasons they see fit, and, thus, asking them to provide their reasons, without adequate justification, is disrespectful of their dignity or personhood. Needless to say, developing such an argument is beyond the scope of this article.
24. Here is another example: some voting procedures are conducted by a secret ballot, and others are not; either way, we normally do not expect people to disclose the reasons for voting the way they did. I suspect that the protection of nondisclosure of reasons for voting often has nothing to do with concerns about privacy; it derives from the nature of the public choice in question and the reasons for having a voting procedure in place. Voting usually counts choices, not reasons.
25. See, for example, C. McKinnon, Toward a Feminist Theory of the State (Cambridge: Cambridge University Press, 1989), p. 191; S. Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1989), p. 174. But cf. R. Gavison, “Feminism and the Public/Private Distinction,” Stanford Law Review 45 (1992): 1.
26. I am not denying that the very nature of an act may depend on it being done in public; I cannot humiliate or praise someone, for example, by just talking to myself in private. But I do not see how this would undermine the point about permissibility that I make in the text.
27. Quite clearly, the various legal prohibitions on public nudity and similar restrictions on the kind of things people may do at home but not in public are justified (when they are) by the protection of public spaces, not by the protection of privacy. Laws in these areas operate like zoning regulations, creating different public spaces for different types of activities.
28. US 479, 1965. The right to privacy established in the Griswold line of cases runs in parallel to the long line of cases concerning Fourth Amendment protections. A discussion of Fourth Amendment jurisprudence would take us far beyond the scope of this article; some of the issues there concern the right to privacy, no doubt, but they are closely entangled with protections of private property and matters of law enforcement.
29. Arguably, there may have been some concerns about privacy with relation to the enforcement of the Connecticut law in question; perhaps the justices thought that the law would be impossible to enforce without serious violations of privacy. But this is clearly not the main moral and legal issue here. Even if the state managed to make contraceptives unavailable without any intrusions or violations of privacy, the law should have been struck down.