The right to privacy has become increasingly important and contested. Here are just a few examples of areas in which violations of privacy have become more common over the last decades:
- Public safety: many governments claim that the war on terror requires the following limitations of the right to privacy (just as it requires limitations of other rights):
- Transportation and road safety:
- Criminal justice:
- Commerce: sales tracking using fidelity cards or credit cards
Since it’s always good to cite the Universal Declaration when talking about human rights, here’s the article about privacy (#12):
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Types of privacy
Privacy is what is called a cluster concept: it covers many different things, things which may seem unrelated at first sight. So, before I go on, here’s a short and tentative typology of different kinds of “privacies” (I’ll mention later what they have in common):
- Domestic privacy. People have a right to remain secluded and alone in their homes, to keep what happens in their homes and houses to themselves, and to repel intrusion. That’s mostly what is protected by the Fourth Amendment in the US. Issues related to obscenity or pornography laws for example also fall under this type of privacy.
- Personal privacy. People have a right to keep their thoughts, opinions, or feelings to themselves. The secrecy of postal communication for example falls under this type, as does the secret ballot.
- Physical (or intimate) privacy. People have a right not to expose their bodies, as well as a right to repel physical intrusion into their bodies. Abortion and some security checks belong here.
- Informational privacy. People have a right to control what happens to information about themselves (or their families), and to limit involuntary distribution or disclosure of such information. Information here means facts, whether embarrassing or not, rather than opinions. The latter are part of libel law. Information about sexual orientation or salaries is an example of informational privacy.
- Relational privacy. People have a right to keep some of the details about their relationships to themselves. This includes whom they have what type of sexual intercourse with. Sodomy laws violate this kind of privacy, as do laws regulating the use of contraceptives. People also have a right to decide without interference on the type of relationship that suites them best. This covers laws regulating interracial marriages, same-sex marriages etc.
(There’s also the concept of private property, but I think this can be separated from privacy issues, although private property of a home is obviously a necessary condition for domestic privacy, for example).
All these types of privacy have something in common: they are all about independence. Privacy protects an individual’s interest in making independent decisions about her life, family, home, lifestyle, relationships, behavior and communication. All these types of privacy are also about the restriction of access or intrusion. Privacy gives an individual the right to deny access or intrusion by others, more specifically access to or intrusion in her body, her home, her relationships, her mind and certain facts about her life. It’s a right to be let alone.
Justification of privacy
Privacy is justified because it restricts access. Some restrictions of access are necessary for personal identity. There is no “I”, no person, no individual without a border between me and the rest of the world. Such a border is an absolute requirement for the basic human need of personhood and individuality. If people have unlimited access to each other, then there simply won’t be any separate people left. People understood as separate entities require some level of privacy protection. The exact level of privacy and the justified intrusions into people’s private lives are not yet determined by this argument, but the need for some level of privacy and some limitations of intrusions is clear. Other justifications of privacy could be based on the interest people have in intimacy, close personal relationships etc. It’s clear that a world without privacy or even without strong privacy rights would be a horrible world indeed.
Objections to privacy
Some argue that there’s nothing special about privacy and that the concept doesn’t merit an independent existence, let alone legal protection. The many different interests protected by privacy can indeed be protected by other means, such as a right to private property, liberty, bodily security and integrity, or independence.
However, I’m not sure that this is true for all the interests protected by a right to privacy. And an independent notion of privacy gives at least an added protection, partly because of the strong roots of the notion in common language and belief.
Some go even a step further and consider privacy to be detrimental rather than merely superfluous. Marx, for example, viewed privacy as a symptom of an atomized and selfish society, intent on protecting the material self-interest of the haves faced with a possible revolt of the have-nots.
Some feminists as well have forcefully argued that privacy is detrimental to women because of its use as a shield to protect male domination, superiority and abuse. However, it’s not because a right can be abused that it loses all meaning. There wouldn’t be any rights left if that were the case. The challenge is to avoid intrusion in people’s private lives that go too far, while at the same time allowing intrusion that counters abusive private actions. The right to privacy is therefore not an absolute right. But it is a right, and feminists should remember that intrusions into the private sphere can also be detrimental to women (e.g. abortion legislation, forced sterilization etc.).
- The Fourth Amendment: It Has Got to be About More than Privacy (reason.com)
- Q&A: How Do You Define ‘Privacy Harm’? (blogs.wsj.com)