Privacy

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PRIVACY

Discussions about privacy are intertwined with the use of technology. The publication that began the debate about privacy in the Western world was occasioned by the introduction of the newspaper printing press and photography. Justices Warren and Brandeis wrote their article on privacy in the Harvard Law Review (Warren and Brandeis 1890) partly in protest against the intrusive activities of the journalists of those days. They argued that there is a "right to be left alone" based on a principle of "inviolate personality." Since the publication of that article the debate about privacy has been fueled by claims for the right of individuals to determine the extent to which others have access to them (Westin 1967) and claims for the right of society to know about individuals.

The Nature of Privacy Claims

Inspired by subsequent developments in U.S. law, a distinction can be made between (1) constitutional privacy or decisional privacy and (2) tort privacy or informational privacy (DeCew 1997). The first refers to the freedom to make one's own decisions without interference by others in regard to matters seen as intimate and personal, such as the decision to use contraceptives. The second is concerned with the interest of individuals in exercising control over access to information about themselves.

Statements about privacy can be either descriptive or normative, depending on whether they are used to describe the way people define situations and conditions of privacy and the way they value them or are used to indicate that there ought to be constraints on the use of information or information processing. Informational privacy in a normative sense refers typically to a nonabsolute moral right of persons to have direct or indirect control over access to (1) information about oneself, (2) situations in which others could acquire information about oneself, and (3) technology that can be used to process information about oneself.

Privacy Accounts

Functionalist accounts of privacy argue that privacy serves other values (such as security or autonomy) and that its importance therefore should be explained in terms of those other values. Reductionist accounts argue that privacy claims are really about something else, such as property. Intrinsicalist accounts argue that privacy is valuable in itself (Rössler 2004).

The scarcity account (Fried 1970, Rachels 1984) claims that privacy creates a scarcity of information that allows people to be selective in determining which information they share with whom. In this way one can distinguish between persons with whom one chooses to be close, not so close, or not close at all. On a utilitarian account (Posner 1981) privacy norms are valuable if and insofar as they support valuable social institutions, practices, or actions. Their justification is therefore utilitarian. The moral self-ownership account (Reiman 1984) observes that environments of intensive surveillance and monitoring, such as prisons and mental asylums, convey the message to inmates that they no longer belong to themselves but are owned by the institution. Privacy norms convey the opposite message to individuals: that they own themselves. Autonomy accounts (Benn 1984) emphasize that privacy provides individuals with the autonomy to decide to be unobserved and the discretion to choose to whom to disclose which facts about themselves. Spying and accessing information about persons preempt their autonomous decisions in this respect. A moral autonomy account (Kupfer 1987), in contrast, argues that privacy serves moral autonomy, a second-order autonomy or an autonomy of self-concept. Only when one has a certain amount of control over who has access to oneself can one live a full-fledged moral life in the sense that one feels free to experiment, make mistakes, and criticize oneself. The gaze of others compromises the strong evaluation perspective, which is essential for moral autonomy and for which human beings have a basic capacity. Intimacy accounts (Gerstein 1978, Inness 1992) highlight the importance of intimate relations in human lives. Intimacy seems possible only if information associated with certain types of activities and relations is not widely accessible. A human dignity account (Bloustein 1964) maintains that privacy expresses respect for human dignity and the integrity of a person. According to a property account (Thompson 1975), privacy claims are claims of ownership of personal information and should be rendered as such.

More recently a type of privacy account has been proposed that acknowledges that there is a cluster of related moral claims (cluster accounts) underlying appeals to privacy (DeCew 1997, Van den Hoven 1999, Nissenbaum 2004).

The following types of moral reasons for the protection of personal data and for providing direct or indirect control over access to those data can be distinguished.

Prevention of information-based harm. Unrestricted access by others to one's passwords, characteristics, and whereabouts can be used to harm the data subject in a variety of ways.
Informational inequality. Personal data have become commodities. Individuals are usually not in a good position to negotiate contracts about the use of their data and do not have the means to check whether partners live up to the terms of the contract. Data protection laws aim at establishing fair conditions for drafting contracts about personal data.
Informational injustice and discrimination. Personal information provided in one sphere or context (for example, health care) may change its meaning when used in another sphere or context (such as commercial transactions) and may lead to discrimination and disadvantages for the individual.
Encroachment on moral autonomy.

These formulations all provide good moral reasons for limiting and constraining access to personal data and providing individuals with control over their data.

Technology

Information and communication technology has introduced a vast array of possibilities for linking, coupling, and merging databases. Internet searches are logged and can be charted through the use of cookies and spyware. Telecommunications traffic and location data are used to fight crime and global terrorism. Transactional, logistical, and radiofrequency identification data and vehicle registration systems are used to streamline supply chains and improve traffic control. Biometrical data, identification data, and authentication data are used to authorize users and manage access. Profiling and data-mining techniques are used to extract the maximum amount of useful information from what is available (Tavani 2004).

Genetic information constitutes a special type of information about people. It is used not only in health care and health insurance but also in policing and forensics. Genetic information is perceived as constitutive of individual human beings.

Nanotechnology also gives rise to privacy concerns. Miniature recording devices provide almost limitless storage capacity. Ubiquitous software and new recording materials may allow almost anyone to capture data about almost anyone else everywhere and all the time, a state that has been referred to as nano-panopticism (Gutierrez 2004).

Neuroimaging techniques such as computerized axial tomography, positron emission tomography, and functional magnetic resonance imaging make it possible to visualize the inner working and structure of the brain. The images show rational thought, memory activity, and emotional activity in reaction to stimuli and can be used to show a panoply of individual characteristics, defects, malfunctions, and deviancies.

Law, Regulation, and Indirect Control over Access

Data protection laws are in force in almost all countries. The basic moral principle underlying these laws is the requirement of informed consent for processing by the data subject. Furthermore, processing of personal information requires that its purpose be specified, its use be limited, individuals be notified and allowed to correct inaccuracies, and the holder of the data be accountable to oversight authorities (Europa 2004). Because it is impossible to guarantee compliance of all types of data processing in all these areas and applications with these rules and laws in traditional ways, so-called privacy-enhancing technologies and identity management systems are expected to replace human oversight in many cases (Agre and Rotenberg 1997). The challenge with respect to privacy in the twenty-first century is to assure that technology is designed in such a way that it incorporates privacy requirements in the software, architecture, infrastructure, and work processes in a way that makes privacy violations unlikely to occur.

JEROEN VAN DEN HOVEN

BIBLIOGRAPHY

Agre, Philip E., and Marc Rotenberg, eds. (1997). Technology and Privacy: The New Landscape. Cambridge, MA: MIT Press.

Benn, Stanley I. (1984). "Privacy, Freedom and Respect for Persons." In Philosophical Dimensions of Privacy: An Anthology, ed. Ferdinand David Schoeman. Cambridge, UK, and New York: Cambridge University Press.

Bloustein, E. (1964). "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser." New York University Law Review 39: 962–1007.

DeCew, Judith Wagner. (1997). In Pursuit of Privacy: Law, Ethics, and the Rise of Technology. Ithaca, NY: Cornell University Press.

Fried, Charles. (1970). An Anatomy of Values. Cambridge, MA: Harvard University Press.

Gerstein, Robert. (1978). "Intimacy and Privacy." Ethics 89: 76–81.

Inness, Julie C. (1992). Privacy, Intimacy and Isolation. New York: Oxford University Press.

Kupfer, Joseph. (1987). "Privacy, Autonomy and Self-Concept." American Philosophical Quarterly 24: 81–89.

Nissenbaum, Helen. (2004). "Privacy as Contextual Integrity." Washington Law Review 79: 101–139.

Posner, Richard A. (1981). The Economics of Justice. Cambridge, MA: Harvard University Press.

Rachels, James. (1984). "Why Privacy Is Important." In Philosophical Dimensions of Privacy: An Anthology, ed. Ferdinand David Schoeman. Cambridge, UK, and New York: Cambridge University Press.

Reiman, Jeffery H. (1984). "Privacy, Intimacy, and Personhood." In Philosophical Dimensions of Privacy: An Anthology, ed. Ferdinand David Schoeman. Cambridge, UK: Cambridge University Press.

Rössler, Beate, ed. (2004). Privacies. Philosophical Evaluations. Stanford, CA: Stanford University Press.

Tavani, Herman T. (2004). Ethics and Technology: Ethical Issues in an Age of Information and Communication Technology. New York: Wiley.

Thomson, Judith Jarvis. (1975). "The Right to Privacy." Philosophy and Public Affairs 4: 295–314.

Van den Hoven, M. Joren. (1999). "Privacy and the Varieties of Informational Wrongdoing." Australian Journal of Professional and Applied Ethics 1(1): 30–44.

Westin, Alan F. (1967). Privacy and Freedom. New York: Atheneum.

Warren, Samuel D., and Louis D. Brandeis. (1890). "The Right to Privacy." Harvard Law Review 4: 193–220.