right of privacy
The volume of studies on privacy has increased tremendously since the 1970s, especially in the United States, and their geographical spread has become wider. These studies address new topics, including celebrity privacy for political and other public figures and privacy rights in international human rights law. Developments in advanced technology, such as electronic storage and DNA testing, have added increasing urgency to the debate, while overt and covert surveillance has become the major concern of Internet sites on privacy issues.
Debates on privacy are conducted on all levels. Personal, governmental, and commercial interests are all engaged, and academic arguments are informed by perspectives from almost every discipline in the humanities and social sciences, including philosophy, politics, geography, law, economics, sociology, social policy, anthropology, literature, language, and history. Journalists and the general public profess an intuitive understanding of what constitutes privacy, but decades of research suggest that there is a wide range of meanings even within a nation-state or common language. Within given communities, variations in attitudes can be related to age, gender, economic and social standing, and ethnic origin, but significant variations can also be found among individuals where these factors are roughly the same. Nevertheless, modern societies share an understanding that privacy is intelligible as a concept among the population at large and, as such, should be explicitly protected by law or custom as a valuable or even essential attribute of civilized life.
Privacy also appears in popular journalism and academic studies as a component of subjects that range across human experience, such as a sense of self; gender and body; private space and family life; intimacy and exclusion; and the impact of globalization on local and communal identity. Privacy studies tend to focus on one or more of the following aspects: (a) a sense of privacy, as experienced by people from different countries, times, and backgrounds; (b) distinctions between public and private realms; (c) rights of privacy in national and international law; (d) the role of advanced technology in privacy protection and intrusion; (e) the functions and values of privacy.
A Sense of Privacy
The existence of a sense of privacy across different cultures and times is frequently asserted or denied on little evidence. One of the most influential studies to encourage the belief that a sense of privacy is specific to the modern Western world was The Civilizing Process: The History of Manners and State Formation and Civilization (originally published as Über den Prozess der Zivilisation in 1939) by Norbert Elias (1897–1990). Elias did not take privacy as his subject, but his comments on shame, embarrassment, delicacy, and modesty are frequently quoted by writers on privacy. His work examines the process by which a code of polite manners was formulated and disseminated between the sixteenth and eighteenth centuries in Europe, starting with the publication of De civilitate morum puerilium (On civility in children) by Desiderius Erasmus (1466?–1536) in 1530. Erasmus dealt with the changing etiquette of familiar and social life, ranging from snot (how to handle a handkerchief before and after blowing one's nose) to urination (someone inadvertently seen urinating should not be greeted).
A large part of polite manners focused on how to accord personal space (physical or mental) to individuals (or groups of people) in which to carry out desirable or necessary activities without embarrassment to themselves or to onlookers. Elias did not assume that privacy as a goal of etiquette was unique to Europe; commenting on how meat is served and eaten, he notes that the concealment of carving behind the scenes was effected much earlier and more radically in ancient China than in the West.
Critics whose knowledge was largely confined to European and American history regarded a sense of privacy as peculiar to a specific Western economic and cultural environment. In a 1965 essay, "Literature and Post-History," the American literary critic George Steiner (1929–) related the rise of the Western novel and its audience to the domestic privacy, leisure, and reading habits of the mercantile class of the eighteenth century, claiming that printed fiction and individual privacy were alike products of the typographical revolution. If typography is a measure of impersonality and privacy, then it would be reasonable to regard late imperial China, where moveable type was invented and where printed fiction flourished, and Korea, the first country in which moveable type passed into common use, as founders of the sense of privacy in the modern world. Historians of English literature nevertheless continued to site the development of a sense of privacy alongside long prose fiction in the eighteenth century. Works such as Privacy and Print: Reading and Writing in Seventeenth-Century England (1999) by Cecile M. Jagodzinski and Privacy: Concealing the Eighteenth-Century Self (2003) by Patricia Meyer Spacks also identified privacy as a special attribute of women, a theme that appears in many cultures under different guises, despite ample evidence to the contrary.
Anthropologists, on the other hand, produced evidence that privacy is a universal human condition whose expression is not necessarily verbal and is adaptable to specific circumstances. Interest in the existence of universal traits in human behavior peaked in the early 1980s, when conventional assumptions on cultural differences that formed research methodology from the 1920s onwards were undermined by new research in the late 1960s and 1970s that showed the differences had been exaggerated and similarities had largely been ignored; new research in linguistics and in brain-mapping gave added support.
A summary of this debate and of traits that can be categorized as universal are contained in Donald L. Brown's Human Universals (1991). Among the characteristics of what Brown calls "Universal People" (UP) are standards of sexual modesty, sex generally in private, and discreetness in elimination of body wastes. Universal people possess a concept of the person: "They distinguish self from others, and they can see the self both as subject and object.… They know that people have a private inner life, have memories, make plans, choose between alternatives, and otherwise make decisions" (p. 135). Most but not all of the lists of universal characteristics compiled by anthropologists since 1945 and summarized by Brown include privacy.
Privacy and Popular Fiction
Habermasian concepts were so much part of British cultural life by the 1970s that readers of middle-brow fiction were deemed to be a knowledgeable audience for the novel The History Man (1975) by Malcolm Bradbury, whose protagonist Howard Kirk is writing a sociological treatise called The Defeat of Privacy. Throughout the novel, Kirk repeatedly attacks the notion of privacy as outmoded while in the last resort guarding his own privacy in his writing and sexual life. A hugely successful satire on academic sociology in contemporary Britain, The History Man was repeatedly re-issued throughout the 1970s and 1980s.
The academic sociologists and social psychologists who take part in one key scene in The History Man, a departmental meeting, are described by the author as "sophisticates of meetings, readers of Goffman." Although the Canadian writer Erving Goffman restricts himself in works such as The Presentation of Self in Everyday Life (1956) to discussing "Anglo-American" behavior, his analysis of the psychological functions of privacy or "backstage behavior" are widely applicable.
The anthropologists' evidence became part of the background to discussions on privacy in the 1980s and 1990s. Still the belief persisted among non-anthropologists that a distinctively modern sense of privacy was an attribute of post-industrial societies. Even a philosopher as sensitive to ethnocentricity as Charles Taylor in 1981 and again in 1985 identified a sense of privacy as a defining characteristic of a specifically modern (and by assumption therefore Western) concept of self-identity. In premodern societies, according to Taylor, "One's life was led before everyone else, and hence shame and its avoidance played a big role in people's lives. There was no space, not just physically but psycho-socially, to withdraw into the privacy of one's own self-estimate, or the opinions of a circle based on affinity.… With the rise of the modern identity, this intensely public life withers. The community retreats, and the nuclear family achieves privacy" (pp. 261–262). In modern societies, Taylor concluded, privacy has become a requirement for the good life, a space for family affection and individual fulfillment.
Barrington Moore's Privacy (1984) was a unique contribution to the debate in examining four widely different types of premodern societies: primitive societies, classical Athens, Hebrew society as revealed in the Old Testament, and ancient China. Much of his discussion about ancient Greece and China is on the mutual obligations of government and the populace at large, and he records the Confucian distinction between the separate realms of the state (public) and the family (private), as well as information in early texts on courtship, the family, and friendship. Starting from a narrow definition of privacy, Moore found that rights to privacy in early Confucian China were weak in comparison those enjoyed in fourth-century b.c.e. Athens. He concluded that privacy of communication was possible only in a complex society with strong liberal traditions and that in the absence of democracy, private rights are either few or undeveloped.
The spread of globalization and the inclusion of privacy rights in international law has rendered almost irrelevant the argument about Western and non-Western or modern and premodern societies, as governments in all parts of the world strive to identify themselves as modern, democratic, and based on the rule of law. Although speculation in popular opinion, journalism, and conservative nationalism continues to dwell on which societies or ethnic groups do or do not enjoy a sense of privacy, the academic debate in the 1970s and 1980s shifted to distinctions between public and private realms.
Public and Private Realms
One of the earliest modern studies of privacy was by Hannah Arendt (1906–1975), who noted the blurring of the public and private realms after Roman times. Jürgen Habermas (1929–) systematized and developed her concept of social and public life since Greek and Roman times in Strukturwandel der Öffentlicheit (1962), which became the chief source for discussion of public and private realms from the 1960s on (the English translation, The Structural Transformation of the Public Sphere, appeared in 1989). Habermas was primarily interested in the public realm but found its vitality dependent on an organization of private life that enabled and encouraged citizens to rise above private identities and concerns. Drawing on literary evidence as well as philosophers and political writers, Habermas focused on the development of the modern European polity. His distinction between mutually interpenetrating public and private spheres within a general private realm (i.e., as opposed to the state) has led to considerable confusion, but his main thesis, that modern society has undergone a transformation in which the expansion of the public sphere within the private realm has taken place at the expense of the private sphere, became a dominant theme in Western culture in the late 1960s and 1970s. To his more radical followers, the apparent triumph of the public sphere represented a post-Marxian liberation from the petty concerns of private life.
The rise of communitarianism in the late 1980s further complicated the public versus private debate, aligning the public interest with conservative values rather than political reform. The American sociologist Amitai Etzioni's The Limits of Privacy (1999) depicted privacy in the United States as a highly privileged state that needed to be modified for the sake of common interests in public safety and public health. Paradoxically, his evidence showed that intrusions on privacy came chiefly from the private sector and that the privacy of individuals was best protected by granting more powers to governments.
PRIVACY AND POPULAR FICTION
Rights to privacy in the United States have been heatedly debated in issues such as abortion, especially for minors, and the personal conduct of candidates for or persons elected to high political office. These concerns form the basis of two novels by the best-selling author Richard North Patterson: No Safe Place (1998) and Protect and Defend (2000). Underpinning a fast-paced narrative on electoral pressures, congressional trade-offs, abortion, adultery, domestic violence, and presidential privacy is thorough research on U.S. law and the advocacy of parties on all sides. Despite his even-handedness, the author comes down strongly against a bill requiring parental permission for the late termination of a minor's pregnancy in Protect and Defend. The fictional bill is defeated in the novel; three years later, President George W. Bush signed a similar bill into law.
The interface of public and private realms in modern Western societies is most strikingly evident in debates concerning abortion, domestic violence, and the private lives of public officials. Contrary to popular belief, no serious academic study has been able to draw a strict line between public and private realms, for reasons related to methodology and terminology. It is inherently unreasonable, for example, to expect that hard and fast borders are possible in such complex matters of political and social relationships. Studies in English, in particular, are typically confused by an ambiguity that is not necessarily present in other European languages (i.e., meanings of the attributive "'private"' that do not carry over into the substantive "'privacy"'). Attempts in the United States to incorporate a defense of privacy into law in the 1980s highlighted problems of terminology and definition.
Rights of Privacy in National and International Law
The principle of a right of privacy was traced back to ancient Jewish law in Samuel H. Hofstadter and George Horowitz's influential The Right of Privacy (1964). Hofstadter, a justice of the New York Supreme Court, and Horowitz, a law professor, also cited case law from European and British Commonwealth countries to show the range of codified legal rights (or their absence) current at the beginning of the 1960s. This state of affairs gradually changed after the General Assembly of the United Nations "took cognizance" of the rights of privacy as formulated in English in Article 17 of the International Covenants on Human Rights in 1960. The text of Article 17 declared that "(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation;" and "(2) Everyone has the right to the protection of the law against such interference or attacks."
Most works on privacy written after 1960 referred at least in passing to privacy as a universal human right, despite different legal systems. For practical reasons, however, discussions on legal aspects of privacy—as in Ruth Gavison's often-quoted study in The Yale Law Journal, "Privacy and the Limits of the Law" (1980)—tend to be country-specific. Studies of rights to privacy in law also accepted nation-states as imposing significant boundaries; although to some extent common law in England corresponds to common law in the United States, the different legal systems of Scotland and continental Europe, not to mention other parts of the world, appear to be too remote for realistic comparison. Gavison's methodology utilized a framework distinguishing status (privacy as a situation of an individual vis-à-vis others, rather than a claim, a psychological state, or a form of control) and characteristics (related to secrecy, anonymity, and solitude) to establish what she calls "a neutral concept of privacy" that might be used for cross-cultural comparison. This attempt at a legally acceptable definition has been criticized in principle and shown to be unworkable in practice.
The English words private and privacy come from the Latin privatus, meaning "withdrawn from public life, deprived of office, peculiar to oneself," and the generally negative sense is continued into the early understanding of the English word private, whose first recorded appearance goes back to 1380. The substantive privacy is not recorded until 1450, and its further meanings of "personal relationships," and then "intimacy" and "confidential relationships" developed even later in succeeding centuries. By the end of the nineteenth century, privacy had begun to refer to legal and political rights, associated with modernity and advanced civilization, and attributed relatively or very high value. These associations were not transferred to private in its meanings of selfish interests or property rights or access. Near-synonyms for private as a descriptor in English in other contexts include individual, personal, familiar, family, domestic, secret, confidential, secure, inner, interior, and intimate ; an Elizabethan equivalent term for privacy avant la lettre is contemplation.
Many European languages do not have exact equivalents of the terms private and privacy. In Dutch, for example, the words eigen (cognate with "own") and openbaar (cognate with "open") are used with reference to property or access where English would use "private" and "public." Swedish has a close equivalent for private (privat ), but not for privacy. The Finnish words related to privacy, such as yksitisasia ("private or intimate affairs"), yksityinen ("private as opposed to public") and yksityisyydensuoja ("private data protection") are derived from the word yksi meaning "one" or "single." Despite this etymological diversity, few English-speakers would wish to claim on linguistic grounds that concepts of privacy in the Netherlands, Sweden, or Finland are radically different from those held in the United Kingdom or United States.
Rights to privacy in law and their political and ethical implications in Britain and its colony Hong Kong have been exhaustively studied by Raymond Wacks, professor of law at the University of Hong Kong, in The Protection of Privacy (1980), Personal Information: Privacy and the Law (1989), and Law, Morality, and the Private Domain (2000). A collection of essays published as a special issue of the European Human Rights Law Review in 2003, edited by Jonathan Cooper, raises cross-cultural issues such as transsexual marriage, policing, and the protection of privacy in the workplace as well as surveillance and constitutional rights. The most exhaustive global survey on rights under national and international laws is David Banisar's Privacy and Human Rights 2000: An International Survey of Privacy Laws and Developments, jointly published by the Electronic Privacy Information Center in Washington D.C. and Privacy International in London. Both organizations operate invaluable Web sites that include news, archives, and bibliographies. Inevitably, their emphasis is on ways in which advanced technology opens up new avenues for intrusions into privacy and for its protection.
Advanced Technology: Privacy Protection and Intrusions
Alan F. Westin's Privacy and Freedom (1967), a comprehensive work whose descriptions of privacy states and functions are cited and elaborated upon by most subsequent writers on privacy, was prompted by concern about new technologies for invading privacy in the hands of government and commercial agencies. As professor of public law and government at Columbia University, Westin occupied an influential position from which to propose changes in U.S. law. Calling for greater protection to the ordinary citizen, Westin pointed out that the tradition of limiting the surveillance powers of the authorities over the private activities of individuals and groups goes back to ancient Greece. He then dedicated over a decade's research to collecting data and investigating attitudes towards privacy in the United States.
In Databanks in a Free Society (1972), one of the first books linking data collection with privacy, Westin and his co-author Michael A. Baker found that the scope of information collection about individuals had not yet significantly expanded as a direct result of computerization, but a National Science Foundation conference in 1979 in which Westin was a key speaker concluded that this was no longer the case. A Harris survey directed by Westin in 1979 on attitudes towards privacy in the United States, which addressed the potential abuse or misuse of personal information by business or government, identified growing public concern about the perceived erosion of privacy in the early 1970s in the United States.
Producing an adequate definition of privacy is one of the most intractable problems in privacy studies. A University of Edinburgh Ph.D. dissertation by Katherine J. Day, "Perspectives on Privacy: A Sociological Analysis" (1985), listed more than a hundred examples. One of the oldest definitions remains influential: Samuel Warren and Louis Brandeis's 1890 declaration that privacy is the right of the individual to be left alone. However, its negativity and stress on the individual as the locus of privacy have had unfortunate consequences.
Alan F. Westin's 1967 definition of privacy is the most commonly cited, but strictly speaking his is not so much a definition as a two-tier description of privacy states and privacy functions. Julie Inness's 1992 attempt combines the aspects of control over access and the intimate nature of privacy in a three-fold definition, but it requires further definition of what is meant by "intimate" and fails to cope with non-intimate instances of privacy.
Ruth Gavison highlighted the difficulty of legal definitions of privacy in 1980, and Raymond Wacks further explored the issue in 1989. Wacks concluded that the term was so overladen with assumptions and ambiguous in terms of its use that conceptual coherence was an unreachable target. The proliferation of definitions and their unsuitability for legal purposes have therefore led some legal scholars to avoid the term privacy in formulating laws for its protection. It is highly unlikely, however, that the term will disappear from common use, since most people are content to muddle along with an imperfect but workable understanding.
Inspired by Westin's advocacy to make the issue of data protection and privacy his life's work, David H. Flaherty produced two pioneering surveys, Privacy and Data Protection: An International Bibliography (1984) and Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States (1989). The former lists 1,862 Western-language works (books, articles, and government reports) published between 1978 and 1983 concerning Canada, the Federal Republic of Germany, France, Sweden, the United Kingdom, the United States, and the rest of the world. An impressive number of U.S. works on threats to information privacy followed, including Managing Privacy: Information Technology and Corporate America (1994) by H. Jeff Smith, Privacy and Its Invasion (1995) by Deckle McClean, The Culture of Surveillance (1997) by William G. Staples, Technology and Privacy: The New Landscape (1997) edited by Philip E. Agre and Marc Rotenberg, and The Electronic Privacy Papers (1998) edited by Bruce Schneier and David Baniser. Most of these works regarded surveillance and data collection as necessary evils in modern life against which the citizen should be warned and equipped with appropriate measures, including individual acts of resistance as well as pressure on corporate and stage agencies.
The most aggressive defense of privacy against intrusion from government and corporate interests was Gini Graham Scott's Mind Your Own Business: The Battle for Personal Privacy (1995). It contains detailed accounts of privacy cases in the United States since the 1960s, relating to employment, police surveillance, media intrusion, medical and health issues, and medical and insurance records. Scott is unequivocally opposed to court decisions that favor employers, the media, schools, the law courts, and the police. He alerts readers to grounds on which privacy may or may not be protected in law, provides an appendix listing computer privacy bulletin boards, and gives his own address for further communication.
The issue of celebrity privacy goes back at least to the nineteenth-century growth of newspapers, but came to dominate discourse on privacy at the end of the twentieth century and beginning of the new millennium. In the United Kingdom, the death of Diana, Princess of Wales, in 1997 was regarded by many as due in part to media intrusion, enabled by the use of new surveillance equipment, and also due in part to press refusal to observe conventions on personal privacy for public figures.
In the United States, President Bill Clinton's impeachment in 1999 for having denied on oath improper sexual relationships became unavoidable when DNA analysis was carried out on his semen. Responding to the constitutional crisis that then arose, Thomas Nagel, professor of philosophy and law at New York University, made a plea for the protection of presidential privacy. In what he called "the disastrous erosion of the precious but fragile conventions of personal privacy in the United States over the last ten or twenty years," Nagel lamented that "American society has lost its grip on a fundamental value, one which cannot be enforced by law alone but without which civilization would not survive.… The division of the self protects the limited public space from unmanageable encroachment and the unruly inner life from excessive inhibition.… The growth of tolerance does not make the collapse of privacy significantly less damaging" (London Review of Books, 4 February 1999, p. 3–6). The support given to the president throughout the unsuccessful impeachment hearings in the spring of 1999 suggests that despite his admissions of wrongdoing, the U.S. electorate sympathized with Clinton's plea that even presidents have private lives.
A transatlantic case that came to trial under English law was the claim for damages by the film stars Catherine Zeta-Jones and Michael Douglas against Hello! magazine in 2003. The prosecution claimed that their right to privacy had been breached by the magazine's unauthorized publication of photographs from their wedding. Both sides claimed a vindication of sorts when Zeta-Jones and Douglas were granted the relatively small sum of £14,600 (US$23,360), including £3,750 each for emotional hurt, in compensation for what the judge ruled was a breach of confidence, since the couple had granted publication rights to another publisher. The judge rejected the couple's complaint about invasion of privacy since there was no privacy law in England. Commenting on the verdict, many British newspapers described the issue as one of control rather than privacy, thus illustrating nicely the gap between popular understanding and academic research on privacy.
Compared to the United States, pressure groups in the United Kingdom were slow to react to privacy intrusions. Although one of the first works on the subject, Private Lives and Public Surveillance (1973) by James B. Rule, warned of the consequences, public safety concerns permitted the proliferation of surveillance technology, so that by the end of the twentieth century more closed-circuit television (CCTV) cameras were installed in shops and public places in the United Kingdom than anywhere else in the world. A guide to the new Data Protection Act of 1984 by Richard Sizer and Philip Newman noted that the act does not mention privacy as an issue, and that privacy was not a legal right under English law. Attempts to incorporate a bill of rights, including privacy rights, into law in the 1980s and 1990s were rebuffed with claims that English common law afforded greater protection. However, works such as The Governance of Privacy: Policy Instruments in Global Perspective (2002) by Colin J. Bennett and Charles D. Raab show that by the beginning of the twenty-first century the mood had changed dramatically in the United Kingdom as well as in countries throughout the world.
New privacy issues arose in the 1990s with the adoption of DNA technology in preventive and forensic medicine. Mark A. Rothstein's Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (1997) and Graham Laurie's Genetic Privacy: A Challenge to Medico-Legal Norms (2002) are ground-breaking investigations on matters such as the disposal of body parts by hospitals for medical research and the status of the right to know—or not to know—one's individual medical records by the person concerned, by their families, by insurance companies, or by other interested agencies. Public outrage at intrusions into genetic privacy in the United States and United Kingdom demonstrates its close relation to questions of personal identity and the body, an area distinctly more emotional than intrusions via databases, surveillance devices, and Internet tracking. It is hardly surprising that the last three decades before the turn of the twenty-first century saw an unprecedented level of scrutiny of the nature, value, and functions of privacy.
The Psychological Functions and Philosophical Values of Privacy
According to the most prominent researcher on philosophical aspects of privacy, Ferdinand Schoeman, there was no major philosophical discussion on the value of privacy until the late 1960s. By 1968, another philosopher, Charles Fried, noted that the literature on privacy was "enormous," as psychologists and sociologists joined in the debate. Hannah Arendt's The Human Condition (1958) set out some of the basic functions of privacy: Privacy guarantees psychological and social depth, containing things that cannot withstand the constant presence of others on the public scene; it undergirds the public by establishing boundaries, which fix identity; and it preserves the sacred and mysterious spaces of life. Some phenomena are different if they are not private: confessions of shame or guilt made public become boastful; over-disclosure becomes false; terror, a guilty secret; love and goodness are destroyed.
Westin's Privacy and Freedom (1967) refined Arendt's analysis by introducing a two-tier definition of privacy, combining personal and social dimensions and consisting of four states (anonymity, reserve, solitude, and intimacy) plus four functions of privacy (personal autonomy, emotional release, self-evaluation, and limited and confidential communication). Westin is a firm universalist: Margaret Mead's famous proclamation that Samoans lacked a sense of privacy or shame is shown to be based on a restrictive understanding of the varied mechanisms of privacy, where speaking softly is as valid a mechanism as physical avoidance. Westin pointed out that that even animals seek periods of individual seclusion or small-group intimacy. He also acknowledged rights of privacy to organizations in areas such as medical and business confidentiality, jury deliberations, executive privilege, and the secrets of the confessional.
Writing in 1977, Carl D. Schneider related the sense of privacy to the sense of shame in his Shame, Exposure, and Privacy. He listed phenomena where privacy is related to dignity: the use of nicknames or formal names; the names of relatives; things that carry the weight of the individual's identity or autonomy; faces and other body parts; things needed to care for the body such as soap, towels, and combs. The open display of bodily functions (defecating, great pain, the process of dying) threatens dignity, revealing an individual vulnerable to being reduced to bodily existence; the function of privacy and shame is to preserve wholeness and integrity. Bodily functions (sexual activities, sleep and excretion; illness, suffering, and eating) are rarely physiological processes alone. People invest all their activities with meanings, so that the physiological is invariably permeated with the human; the obscene is a deliberate violation of the sense of shame and privacy. Human relationships demand a pattern of mutual and measured self-disclosure. The private world is both a realm that is valued for oneself as a retreat, and one of which we are suspicious in other people; it is of lesser value than the public world. Totalitarian regimes are opposed to respect for persons, and thus deny privacy; when society does not provide for privacy, being apart will take the form of hiding.
The Private Me (1980), by June Noble and William Noble, anticipated the obsession with "me" that is said to characterize the 1980s. It is a crusading work, seeing privacy under threat from intrusions by family as well as government and society, and offering advice on ways to foster privacy through developmental programs including encounter groups and other forms of self-taught or group therapy. Among examples of modern devaluations in privacy, Noble and Noble noted that until the late twentieth century, diaries, letters and biographies were regarded as private legacy bequeathed by the deceased to family, and chart the growth of straight autobiography as distinct from the novel as fictionalized autobiography. They deplore compulsive self-disclosure (glamorized as candor) and over-disclosure, not only because it becomes boring, but also because it looks for sympathy as against creating intimacy or developing self-awareness. Reticence, on the other hand, encourages limited or protected communication, while privacy keeps emotions and acts from being trivialized: What is important is kept private (for example, lovemaking). Children develop a sense of privacy from the age of eight years on and need privacy to develop fulfilling sex lives.
Noble and Noble emphasized the link between privacy and power: Privacy allows or asserts power, and power confers privacy. Privacy in modern America has become a luxury, indicating status; lack of privacy among the poor and in the workplace leads to stress, and lack of assertiveness means that important boundaries cannot be established. Privacy is resisted by calling it "selfishness"; shyness in modern America is regarded as synonymous with worthlessness but can be seen instead as sensitivity and perceptiveness.
The most original attempt to provide a comprehensive account of privacy in the 1990s was Privacy, Intimacy, and Isolation (1992) by the philosopher Julie Inness. Inness constructed a definition of privacy from data on cases under tort and constitutional law in the United States, covering three areas: access to intimate information about the agent; access to intimate aspects of the agent's person; and autonomy in the agent's decisions about intimate matters. Although it requires further definition of what is meant by "intimate" and fails to acknowledge nonintimate dimensions of privacy, the emphasis on control and access makes it one of the most useful definition to date.
Inness is also unusually systematic on the question of values, stressing that privacy is rarely if ever given primary status in conflict with other values. Arendt and Westin both had previously pointed out limitations to privacy. According to Westin, "the individual's desire for privacy is never absolute, since participation in society is an equally powerful desire" (1967, p. 7). Inness adds a feminist perspective, pointing out that privacy protection may act as a mechanism for maintaining the dominance of groups or individuals in power and enforcing silence and helplessness on others.
With some outstanding exceptions, most researchers on privacy are located in the United States and focus on contemporary U.S. experience; relatively little has been produced about other modern societies, Western or otherwise. A countertrend may be starting with the publication of three books on privacy in China: Private Life Under Socialism: Love, Intimacy, and Family Change in a Chinese Village, 1949–1999 (2003) by Yan Yunxiang; Chinese Concepts of Privacy, edited by Bonnie S. McDougall and Anders Hansson (2002); and Love-Letters and Privacy in Modern China: The Intimate Lives of Lu Xun and Xu Guangping (2002) by Bonnie S. McDougall. Among insights raised by these studies is the often-ignored fact that privacy is more frequently a condition shared by lovers, families, or friends than one experienced alone by a single individual. As concluded in the preface to Chinese Concepts of Privacy, "The apparent chaos in privacy studies is a reflection of real-life complexity and will not be resolved by including more cultures in the debate. But by taking Chinese and other non-Western cultures into account, a global understanding of privacy will help to clarify crucial issues such as universal awareness of privacy and universal privacy rights" (McDougall and Hansson, p. 24).
See also Human Rights ; Liberty ; Public Sphere ; Society .
Agre, Philip, and Marc Rotenberg, eds. Technology and Privacy: The New Landscape. Cambridge, Mass.: MIT Press, 1997.
Arendt, Hannah. The Human Condition. Chicago: University of Chicago Press, 1958.
Banisar, David. Privacy and Human Rights 2000: An International Survey of Privacy Laws and Developments. Washington, D.C.: Electronic Privacy Information Center, and London: Privacy International, 2000.
Bennett, Colin J., and Charles D. Raab. The Governance of Privacy: Policy Instruments in Global Perspective. Aldershot, U.K.: Ashgate, 2002.
Brown, Donald L. Human Universals. Philadelphia: Temple University Press, 1991.
Cooper, Jonathan, ed. Privacy. London: Sweet and Maxwell, 2003.
Elias, Norbert. The Civilizing Process: The History of Manners and State Formation and Civilization. Translated by Edmund Jephcott. Oxford: Blackwell, 1994.
Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.
Flaherty, David H., ed. Privacy and Data Protection: An International Bibliography. London: Mansell, 1984.
——. Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States. Chapel Hill: University of North Carolina Press, 1989.
Goffman, Erving. The Presentation of Self in Everyday Life. London: Allen Lane, 1969.
Habermas, Jürgen. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Translated by Thomas Burger. Cambridge, Mass.: MIT Press, 1989.
Hofstadter, Samuel H., and George Horowitz. The Right of Privacy. New York: Central Book Co., 1964.
Inness, Julie C. Privacy, Intimacy, and Isolation. New York: Oxford University Press, 1992.
Jagodzinski, Cecile M. Privacy and Print: Reading and Writing in Seventeenth-Century England. Charlottesville: University Press of Virginia, 1999.
Laurie, Graham T. Genetic Privacy: A Challenge to Medico-Legal Norms. Cambridge, U.K.: Cambridge University Press, 2002.
McDougall, Bonnie S., and Anders Hansson, eds. Chinese Concepts of Privacy, Leiden, Netherlands: Brill, 2001.
McLean, Deckle. Privacy and its Invasion. Westport, Conn.: Praeger, 1995.
Moore, Barrington, Jr. Privacy: Studies in Social and Cultural History. Armonk, N.Y.: M. E. Sharpe, 1984.
Noble, June, and William Noble. The Private Me. New York: Delacorte Press, 1980.
Norback, Craig T. The Computer Invasion. New York: Van Nostrand Reinhold, 1981.
Rule, James B. Private Lives and Public Surveillance. London: Allen Lane, 1973.
Schneider, Carl D. Shame, Exposure, and Privacy. Boston: Beacon, 1977. Reprint, New York: Norton, 1992.
Schneier, Bruce, and David Banisar, eds. The Electronic Privacy Papers: Documents on the Battle for Privacy in the Age of Surveillance. New York: Wiley, 1997.
Schoeman, Ferdinand David. Privacy and Social Freedom. Cambridge, U.K.: Cambridge University Press, 1992.
——, ed. Philosophical Dimensions of Privacy: An Anthology. Cambridge, U.K.: Cambridge University Press, 1984.
Scott, Gini Graham. Mind Your Own Business: The Battle for Personal Privacy. New York: Plenum, 1995.
Spacks, Patricia Meyer. Privacy: Concealing the Eighteenth-Century Self. Chicago: Chicago University Press, 2003.
Staples, William G. The Culture of Surveillance: Discipline and Social Control in the United States. New York: St. Martin's Press, 1997.
Steiner, George. Language and Silence, Essays 1958–1966. London: Faber, 1967.
Taylor, Charles. Philosophy and the Human Sciences: Philosophical Papers 2. Cambridge, U.K.: Cambridge University Press, 1985.
Wacks, Raymond. Law, Morality, and the Private Domain. Hong Kong: Hong Kong University Press, 2000.
——. Personal Information: Privacy and the Law. Oxford: Clarendon, 1989.
——. The Protection of Privacy. London: Sweet and Maxwell, 1980.
Weintraub, Jeff, and Krishan Kumar, eds. Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy. Chicago: University of Chicago Press, 1997.
Westin, Alan F. Privacy and Freedom. London: Bodley Head, 1967.
Westin, Alan F., and Louis Harris, and Associates. The Dimensions of Privacy: A National Opinion Research Survey of Attitudes Towards Privacy. New York: Garland, 1981.
Inconstitutional law, the right of people to make personal decisions regarding intimate matters; under thecommon law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing andelectronic surveillance.
The origins of the right to privacy can be traced to the nineteenth century. In 1890, Samuel D. Warren and louis d. brandeis published "The Right to Privacy," an influential article that postulated a general common-law right of privacy. Before the publication of this article, no U.S. court had expressly recognized such a legal right. Since the publication of the article, courts have relied on it in hundreds of cases presenting a range of privacy issues.
In olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Brandeis, then a Supreme Court justice, articulated a general constitutional right "to be let alone," which he described as the most comprehensive and valued right of civilized people. For the next half century, the right to privacy gradually evolved. Today, every jurisdiction in the country recognizes some form of constitutional, common-law, or statutory right to privacy.
The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.
The right of privacy protected by the Constitution gained a foothold in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which the Supreme Court struck down a state statute forbidding married adults from using birth control because the statute violated the sanctity of the marital bedroom. Acknowledging that the Constitution does not mention the word privacy anywhere in its text, the Court held that a general right to privacy may be inferred from the express language of the First, Third, Fourth, Fifth, and Fourteenth Amendments, as well as from the interests protected by them.
The Court said that the first amendment guarantees the right to peaceably assemble, which includes the liberty of any group to associate in private. The third amendment prohibits the government from quartering soldiers in a private home without the consent of the owner. The fourth amendment forbids the government from performing warrantless and unreasonable searches of any area in which a person maintains a reasonable expectation of privacy. The fifth amendment safeguards the right of criminal suspects to keep secret any incriminating evidence that might help the government obtain a conviction against them. The fourteenth amendment prevents states from denying its citizens certain fundamental rights that are deemed essential to the concepts of equality or liberty, including the right to autonomy, dignity, and self-determination.
The holding in Griswold was later used to strike down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons (Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 ). In striking down this law, the Supreme Court articulated a broader view of privacy, stating that all individuals, married or single, enjoy the liberty to make certain intimate personal decisions free from government intrusion, including the decision whether to bear or sire a child. This rationale was extended in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which established the right of women to terminate their pregnancy at any time before the fetus reaches the stage of viability. Roe has subsequently been interpreted to proscribe the government from passing regulations that unduly burden a woman's right to abortion.
In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court again enlarged the constitutional meaning of privacy by declaring that competent patients have a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration. A 1997 Supreme Court case presented the issue of whether competent but terminally ill patients may hasten their death through physician-assisted suicide (washington v. glucksberg, 117 S. Ct. 2258). Representatives for the terminally ill patients argued that the right to physician-assisted suicide represents an essential liberty interest in controlling one of life's most significant decisions, whereas the state of Washington argued that this liberty interest is outweighed by the need to protect vulnerable individuals from irrational, ill-informed, and coerced decisions to end their lives. The Supreme Court held that the right to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause of the Constitution, and a state's ban on assisted suicide is constitutional.
The constitutional right to privacy does not protect all forms of conduct that are pursued behind closed doors. Adults have no constitutional right to inject intravenous drugs, solicit prostitutes, or view child pornography. Nor do members of society have a right to be insulated from every potentially offensive activity. For example, the government may not forbid a movie theater from displaying nude scenes on a large outdoor screen that is visible to passing motorists. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975),
Protecting Your Privacy
By using computer technology, companies can legally collect information about consumers, including what they buy, what medications they take, what sites on the internet they have visited, and what their credit history is. Computer software can organize this data and prepare it for sale and use by direct marketing companies, lending institutions, insurance companies, and credit bureaus.
Although it may be legal to collect this information, individuals may legitimately take steps to protect their privacy. Here are some common ways that companies collect information and some steps consumers can take to prevent this from happening:
- Shopper's cards. Some grocery stores and other retail businesses offer discounts or premiums when consumers use their shopper's cards. All purchases are scanned into a computer, allowing the store to compile a list of each individual's buying habits. The store may use this information to target certain customers or may sell it to companies seeking specific types of potential customers. Consumers can protect their privacy either by not using such cards or by persuading the company to limit the distribution of the information.
- Financial data. Credit bureaus compile credit histories filled with personal information, which are sold to anyone without restriction. Although these credit reports are supposed to be sold only to those companies with a legitimate business interest, this is not always the case. Consumers are entitled to review their credit reports and correct any errors. If someone the consumer does not know has requested a report, the consumer can ask the credit bureau to investigate the legitimacy of the request.
- Motor vehicle data. An individual's motor vehicle registration is public information in most states. In many states, driver's license data (weight, age, address, driver's license number) are also public information. Automobile dealers and insurance companies collect such information. An individual can request the state motor vehicle department not to release his or her name and address to individuals or companies.
The federal communications commission has issued regulations restricting companies from certain forms of telephone solicitation, which has developed into a common annoyance in U.S. households. Under these regulations (47 C.F.R. § 64.1200), a company may not initiate a telephone call by using an automatic dialing system or an artificial or prerecorded voice without prior consent of the party called. Likewise, a company may not make such a call to a service for which the called party may be charged, such as a paging service or a cellular telephone service. A company is also restricted from sending an unsolicited advertisement to a telephone facsimile machine without prior permission.
A telemarketer is restricted from calling a residential telephone subscriber before 8 a.m. or after 9 p.m. local time of the party being called. Telemarketers must institute procedures for maintaining a do-not-call list in order to conduct telemarketing. If an individual requests that the telemarketer place him or her on the do-not-call list, the telemarketer must comply. The telemarketer must satisfy a number of minimum requirements, including the development of a written policy detailing the procedures that must be followed if a person asks to be placed on the do-not-call list; training of personnel to place persons on the do-not-call list; and ensuring that the person who requests to have his or her name on the list is placed on the list. If a telemarketer fails to honor the do-not-call list, it is liable to a party on the list that is contacted by a telephone solicitor employed by that telemarketer.
Bruening, Paula J. 2001. Consumer Privacy in the Electronic Marketplace. Washington, D.C.: National Legal Center for the Public Interest.
"Code of Federal Regulations Title 47: Restrictions on Telephone Solicitation." Available online at <www.ornocall.com/ced73687.html> (accessed July 15, 2003).
the Supreme Court said that the First Amendment right to show such films outweighs the privacy interests of offended passersby who can protect their sensitivity by averting their eyes.
The common law of torts recognizes five discrete rights of privacy. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common-law right to sue when information concerning their private life is disclosed to the public in a highly objectionable fashion. Third, tort liability may be imposed on individuals or entities that publicize information that places someone in a false light. Fourth, the common law forbids persons from appropriating someone's name or likeness without his or her consent. Fifth, the common law prevents business competitors from engaging in unfair competition through the theft of trade secrets.
Intrusion upon Seclusion One who intentionally intrudes upon the solitude or seclusion of another is subject to liability for common-law invasion of privacy. An invasion may involve a physical intrusion into a place where a person has secluded herself, such as the nonconsensual entry into someone's home, office, apartment, or hotel room. Nonphysical intrusions may also give rise to liability when they involve the use of electronic surveillance equipment, including wiretaps, microphones, and video cameras. Alternatively, a person's seclusion may be impermissibly interrupted by persistent and unwelcome telephone calls, or by the occasional window peeper. By imposing liability in such instances, the law seeks to protect a person's tranquility and equilibrium.
Not every intrusion is actionable under this common-law tort. The intrusion must be considered highly offensive to a reasonable person. Creditors are allowed to take action to collect delinquent debts but must do so in a reasonable fashion. Landlords are permitted to demand late rental payments but must do so at reasonable times. A judge or jury determines what is reasonable according to the facts of each case. Individuals have no expectation of privacy in matters that are public. Thus, businesses may examine public criminal records of prospective employees without fear of liability, and photographers may take pictures of movie stars in public places.
Publicity that Discloses Private Information The common law protects individuals from publicity that discloses information about their private lives. Unlike libel, slander, and defamation actions, this common-law tort may give rise to liability for truthful publicity, as long as the information is published in a manner that is highly objectionable to a reasonable person and the information is of no legitimate concern to the public. Disclosure of private sexual relations, disgraceful family quarrels, humiliating illnesses, and most other intimate personal matters will normally give rise to liability for invasion of privacy, even if such disclosures are completely accurate. By discouraging the publication of such private and personal matters, the common law places a high value on the right of individuals to control the dissemination of information about themselves, including the right to filter out embarrassing and harmful facts that might influence the opinion of others.
Liability is not usually imposed for alleged injuries relating to matters that are intended for public consumption. A person's date of birth and military record, for example, are both matters of public record that may be disclosed without invading his or her privacy. Commercial proprietors that regularly deal with the public receive little protection from disclosures that relate to the price of their products, the quality of their services, or the manner in which they conduct business. Under the First Amendment, business proprietors receive less protection of their privacy interests because the U.S. Constitution seeks to promote the free and robust exchange of accurate information to allow consumers to make informed decisions.
False-Light Publicity The common-law tort of false-light publicity protects individuals from the public disclosure of false information about their reputation, beliefs, or activities. The information need not be of a private nature nor must it be defamatory, as must libelous and slanderous statements, before liability will be imposed. Instead, a misleading publication will give rise to liability for false-light publicity when it is placed before a large segment of the public in such a way that a reasonable person would find it highly offensive. However, publication of an inaccurate story to a single person, or a small group of people, is not considered sufficiently public to constitute publicity.
A newspaper photograph printed in close proximity to a caption suggesting criminal activity on the part of the person photographed is a classic example of false-light publicity. On the other hand, a misleading photograph, such as one that has been retouched, may not give rise to liability for false-light publicity if the photograph is accompanied by a caption that clearly explains how it has been distorted. An esteemed poet may successfully sue for false-light publicity when an inferior poem is published under the poet's name. A war hero may assert a cognizable claim for false-light publicity if a story is aired that inaccurately portrays the soldier as a coward.
Public officials, such as politicians, and public figures, such as professional athletes, rarely recover for false-light publicity. Before a public official or public figure can recover for false-light publicity, the First Amendment requires proof that a story or caption was published with knowledge of its falsity or in reckless disregard of its truth, a principle that has become known as the actual malice standard (new york times co. v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 ). In most instances, public officials and public figures have thrust themselves into the public spotlight. As a condition to accepting the benefits that accompany public recognition, the law requires that such persons accept a diminished level of protection of their privacy interests. Because the First Amendment confers less protection on public persons than it does on private individuals, the Constitution encourages the media to freely disseminate information about candidates for office, government officials, and other figures who influence or shape the course of events.
Appropriation of Name or Likeness One who appropriates the name or likeness of another person is subject to liability for invasion of privacy. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate someone's name or likeness without permission. Nonconsensual commercial appropriation of a person's name or likeness for advertising purposes is the most common type of conduct giving rise to liability under this common-law tort. By forbidding the nonconsensual use of a person's name or likeness, the law allows an individual to license his or her face, body, reputation, prestige, and image for remuneration.
Not every appropriation gives rise to liability for invasion of privacy. Liability will attach only when a person's name or likeness has been appropriated to obtain an immediate and direct advantage. The advantage need not yield a financial gain. However, the mere incidental use of someone's name or likeness is not a compensable appropriation.
For example, the print and electronic media may publish photographs, drawings, and other depictions of a person's name or likeness as an incidental part of their legitimate news-gathering activities without violating the common-law right to privacy. However, if a nonprofit organization uses a person's name or likeness to promote its philanthropy, it may be liable for the appropriation. The right to sue for wrongful appropriation is a personal right. Parents cannot recover damages for breach of their children's privacy, and family members cannot sue after the death of the person whose name or likeness has been misappropriated.
Theft of Trade Secrets Wrongful use, disclosure, or theft of a trade secret is actionable under the common law. Although the U.S. economy is generally governed by free-market principles, the common law requires businesses to compete fairly and forbids business rivals from stealing one another's intellectual property for commercial advantage. Although it is difficult to formulate a comprehensive list of what constitutes the improper acquisition of a trade secret, the common law generally makes it unlawful to engage in fraud, misrepresentation, or other forms of deception for the purpose of obtaining confidential commercial information.
Independent analysis of publicly available products or information is not an improper means of acquisition. Through a process known as reverse engineering, a competitor may lawfully purchase a rival's product, disassemble it, and subject it to laboratory analysis for the purpose of unlocking valuable information, such as a secret formula or process. However, aerial photography of a competitor's plant constitutes tortious interference with commercial privacy. Courts have reasoned that the law should not force commercial entities to expend additional resources to conceal their interior from every possible form of exterior exposure. Conversely, commercial entities may patent many of their valuable trade secrets before placing a product on the market where it can be analyzed by a competitor.
In addition to the constitutional and common-law principles that offer protection of privacy interests, a host of statutes and regulations have been passed to define privacy in a variety of contexts. State and federal legislation regulates the circumstances under which information from financial, educational, and government records can be revealed. State and federal legislation also prescribes the conditions under which employers may subject their employees to drug testing. Federal laws strictly limit the use of electronic surveillance in both the public and private sectors.
Congress passed the fair credit reporting act of 1970 (15 U.S.C.A. § 1681 et seq.) to prevent unreasonable and careless invasions of consumer privacy. The law permits employers, lenders, and other persons to obtain a copy of an individual's credit report for a legitimate business purpose. However, businesses may not request a credit report unless it is related to a transaction initiated by the consumer, such as a job interview or bank loan.
Commercial entities may not use credit reports for the purpose of marketing. Nor may a person or entity obtain a credit report through the use of false pretenses, fraud, or misrepresentation. The statute authorizes consumers to review the information contained in their own credit reports and challenge inaccuracies. Credit bureaus have an obligation to correct any inaccuracies within a reasonable amount of time after learning of them.
The privacy act of 1974 (5 U.S.C.A. § 522a) requires the federal government to use fair practices in the collection and use of information about U.S. citizens and is designed to prevent federal agencies from disclosing certain personal information contained in their records. In general, federal agencies may not release government records without first obtaining consent from the persons who are referred to in the records. Every individual maintains the right to inspect federal agency records, correct mistakes, and add important details. In the event that an individual's right is infringed under this law, he or she can sue the federal government for money damages or a court order directing the agency to obey the law.
Do DNA Databases Violate Privacy?
All 50 states and the federal government maintain DNA databases of certain convicted criminals. DNA, or deoxyribonucleic acid, is the chemical that reveals a person's genetic makeup. A database containing the DNA of convicted criminals helps law enforcement find and identify repeat criminal offenders. Prior to 1998, the federal DNA database and the state databases were not completely integrated, so sharing DNA information between the states was not an easy task.
In October 1998, the federal bureau of investigation (FBI) began operating a nationwide DNA database called the National DNA Index System, under the DNA Identification Act of 1994 (Public Law 103 322). The system consists of the DNA databases from all 50 states and the FBI's own DNA database. As of 2003, it contained approximately 1.3 million DNA samples. The national database makes it possible for law enforcement officials in one state to compare DNA found at a crime scene with DNA samples that exist in the DNA databases of other states. When the national DNA database was installed, FBI director Louis Freeh predicted that it would be of great value to city, county, state, and federal law enforcement agencies if they work together to apprehend violent criminals.
The national DNA database in the United States is similar to the one that has been used in England since 1995. In Great Britain, the empire-wide DNA database includes DNA samples from crime scenes, from anyone convicted of a crime, and from persons who are suspects in unsolved cases. The Police Superintendents Association in England has even proposed obtaining DNA samples from every person in England. There is no plan in the United States for such widespread DNA gathering.
Who, then, should be required to provide a DNA sample? This question comes up again and again concerning the use of, DNA databases. Almost all states require that persons convicted of serious sex offenses give a DNA sample upon their conviction. However, the states differ on whether to mandate DNA profiling of all violent felons, persons paroled from jail, and juvenile offenders. And what about an individual who is on parole for a past crime? Should he or she be required to retroactively provide a sample? A national DNA database may be a boon for law enforcement personnel, but it raises concern over protection of privacy.
In March 1999, U.S. Attorney General janet reno requested that a federal commission look into the possibility of requiring all arrested persons to give a DNA sample. In 2003, the george w. bush administration backed the proposal. The administration also pushed to require DNA samples from juvenile offenders. The notion that a person may be required under federal law to give a DNA sample based on the mere suspicion of criminal activity is chilling to civil libertarians. The FBI, however, insists that dna evidence is the future of law enforcement and that the national database has already resulted in a number of successes. As of 2002, over six thousand DNA samples had been matched to unsolved crimes. The FBI is also quick to point out that the DNA database is a secure system, and that all users, including researchers, are required to undergo background checks.
Other proponents of the national database herald the coming of a national DNA database for its exculpatory potential. A person may easily be eliminated as a suspect through DNA evidence and, in some cases, DNA evidence can prove a convicted defendant innocent, which results in freedom and true, albeit tardy, justice. Opponents of a comprehensive national DNA database concede that DNA evidence can be exculpatory, but groups such as the american civil liberties union (ACLU) are gearing up for a legal battle that will almost certainly reach the U.S. Supreme Court.
Kaye, David, et al. 2001. "Is a DNA Identification Database in Your Future?" Criminal Justice 16 (fall).
Puri, Allison. 2001. "An International DNA Database: Balancing Hope, Privacy, and Scientific Error." Boston College International and Comparative Law Review 24 (spring).
Webster, Warren R., Jr. 2000. "DNA Database Statutes and Privacy in the Information Age." Health Matrix 10 (winter).
Similarly, the freedom of information act (5 U.S.C.A. § 552 ) contains limitations on the disclosure of agency information when such disclosure would constitute a "clearly unwarranted invasion of personal privacy." In most other instances, the Freedom of Information Act guarantees the right of Americans to request a copy of any reasonably identifiable record kept by a federal agency. However, the U.S. government may refuse to disclose certain sensitive information that relates to national security, foreign policy, or other classified areas. Persons who have requested information and been denied may challenge the decision in court. The Freedom of Information Act serves the twin purposes of protecting private and classified documents from disclosure while requiring the uninhibited exchange of all other information that is consistent with an open society and a democratic government.
In 1974, Congress enacted the Family Educational Rights and Privacy Act (20 U.S.C.A. § 1232g), which gives parents the right to examine the scholastic records of their children. The act broadly defines scholastic records to include all records, files, documents, and other materials containing information directly related to a student that are maintained by an educational agency or institution. The act permits only certain individuals to have access to student records, including other institution officials who have a legitimate scholastic interest in the records, such as teachers, principals, and student loan officers. Otherwise, a school must obtain consent from the student or parent before disclosing any information contained in an educational record. The Family Educational Rights and Privacy Act applies to all public schools, including colleges and universities, and to private schools that receive federal funding.
The Right to Financial Privacy Act of 1978 (12 U.S.C.A. § 3401 et seq.) entitles bank customers to a limited expectation of privacy in their financial records by requiring that law enforcement officials follow certain procedures before information can be disclosed. Unless a customer consents in writing to the disclosure of his financial records, a bank may not produce such records for government inspection unless ordered to do so by an administrative or judicial subpoena or a lawfully executed search warrant. Other formal written requests for bank records may be granted if they are made for a legitimate law enforcement purpose. The Right to Financial Privacy Act applies to credit unions, trust companies, and savings and loan institutions.
The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.) governs the use of electronic surveillance in both the public and private sectors. In the public sector, the act outlines detailed procedures the federal government must follow before conducting any form of electronic surveillance. Pursuant to authorization by the U.S. attorney general or a specially designated assistant, federal law enforcement agents must make a sworn written application to a federal judge that specifically describes the location where the communications will be intercepted, the reasons for the interception, the expected duration of the surveillance, and the identity of those persons whose conversations will be monitored. The judge must then review the surveillance application to ensure that it satisfies each of the statutory requirements and establishes probable cause to justify electronic eavesdropping.
The Omnibus Crime Control and Safe Streets Act governs the use of electronic surveillance in the private sector as well. The act prohibits any person from intentionally using or disclosing information that has been knowingly intercepted by electronic or mechanical means without the consent of the interested person. Nearly 70 percent of all reported wiretapping involves divorce cases and custody battles. Often, divorcing spouses, attempting to obtain embarrassing or discrediting information against one another, plant recording and listening devices throughout the marital home. Although most federal courts have ruled that the Omnibus Crime Control and Safe Streets Act applies to interspousal electronic surveillance, some courts have created a spousal immunity from civil liability under the act in an effort to preserve any remaining remnants of marital harmony.
The Omnibus Crime Control and Safe Streets Act also governs the use of electronic surveillance in the area of employment. A number of employers videotape employee movement throughout the workplace, search employees' computer files, monitor their telephone calls, and read their electronic mail. Courts have generally permitted employers to engage in such surreptitious snooping so long as it serves a legitimate and significant business purpose.
In the rest of the private sector, the Omnibus Crime Control and Safe Streets Act applies to information intercepted from telephone satellite unscrambling devices, cellular telephones, and pagers, as well as from traditional forms of electronic surveillance, such as telephone taps, microphones, and other bugging devices. However, the act does not cover information intercepted from pen registers, which record the telephone numbers of outgoing calls, or caller identification devices, which display the telephone numbers of incoming calls, because neither captures conversations of any sort. In addition, the act does not apply to information intercepted by videotape. In a 2001 decision, Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), a Pennsylvania court held in a 4–3 decision that a defendant does not have a reasonable expectation of privacy in a telephone conversation from his home with a confidential police informant; therefore, the Commonwealth was not required to obtain a determination of probable cause before tape recording the conversation.
The Total Information Awareness (TIA) program is a federal program sponsored by the department of defense (DoD) designed to detect, classify, and identify foreign terrorists—and decipher their plans—and thereby enable the United States to take timely action to successfully preempt and defeat terrorist acts. To that end, the TIA program states its objective as creating a counter-terrorism information system that: (1) increases information coverage by an order of magnitude and affords easy future scaling; (2) provides focused warnings within an hour after a triggering event occurs or an evidence threshold is passed; (3) can automatically queue analysts based on partial pattern matches and has patterns that cover 90% of all previously known foreign terrorist attacks; and (4) supports collaboration, analytical reasoning, and information sharing so that analysts can hypothesize, test, and propose theories and mitigating strategies about possible futures, so decision-makers can effectively evaluate the impact of current or future policies and prospective courses of action.
Critics of this program have been outraged that the government has implemented it. The DoD claims that it recognizes American citizens' concerns about privacy invasions and that it has certain safeguards in place to prevent this and to ensure that data are protected and used only for lawful purposes.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (usa patriot act, or USAPA), Pub. L. 107-54, 115 Stat. 272, introduced a plethora of legislative changes which significantly increased the surveillance and investigative powers of law enforcement agencies in the United States. The act does not, however, provide for the system of checks and balances that traditionally safeguards civil liberties in the face of such legislation. Legislative proposals in response to the terrorist attacks of September 11, 2001, were introduced less than a week after the attacks. President george w. bush signed the final bill, the USA PATRIOT Act, into law on October 26, 2001. The act was a compromise version of the Anti-Terrorism Act of 2001 (ATA), a far-reaching legislative package intended to strengthen the nation's defense against terrorism. The ATA contained several provisions vastly expanding the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. The USA PATRIOT Act retains provisions appreciably expanding government investigative authority, especially with respect to the internet. Those provisions address issues that are complex and implicate fundamental constitutional protections of individual liberty, including the appropriate procedures for interception of information transmitted over the Internet and other rapidly evolving technologies. The american civil liberties union and various library and booksellers' organizations filed suit in October 2002 under the Freedom of Information Act (FOIA) seeking the disclosure of information concerning implementation of the controversial USA PATRIOT Act. The lawsuit covered some of the information the justice department withheld from the House Judiciary Committee in response to a set of detailed questions. A court ordered compliance with the FOIA; however, the government withheld many documents claiming national security interests. As of 2003, this controversy continued.
Genetic privacy has also been at issue in recent years. Cloning is a process by which cells are isolated from an organism through a biopsy and cultured under laboratory conditions. They grow and divide, producing new cells identical to the original cells. With the exception of sperm and egg cells, cloning from even a single cell of a mammal is possible because every cell in the organism contains a complete set of genes necessary to make an identical copy. Unlike artificial fertilization and other modern methods of conception, cloning requires just one parent. In July 2001, the House of Representatives passed the Weldon-Stupak bill, which criminalizes cloning in humans, whether for reproductive or research purposes. This bill was introduced in the Senate as the Brownback-Landrieu bill and was endorsed by President Bush. Senator Sam Brownback (R-KS) reintroduced legislation in 2003 that would ban all human cloning, including somatic cell nuclear transfer, also known as therapeutic cloning. The Human Cloning Prohibition Act of 2003 reintroduces language from Brownback's prior bill that ended in a Senate stalemate in the 107th Congress.
Alcohol and other drug testing is another form of employee surveillance that raises privacy questions in both the public and private sectors. Many legislators consider drug testing by urinalysis to be intrusive, and the practice has been regulated in at least 18 states. Three states require employers to demonstrate probable cause of illegal drug use before they can compel an employee to submit to urinalysis. Six states specify that employers can instigate drug testing only if they have reason to suspect an employee of illegal drug use. In general, however, no pervasive public policy against mandatory employee drug testing exists in either the public or private sector.
Drug testing in the workplace gained momentum in 1986 following a presidential commission report on drug abuse (America's Habit: Drug Abuse, Drug Trafficking, and Organized Crime). The commission recommended drug testing in both the public and private employment sectors. Based on this recommendation, President ronald reagan ordered drug testing for federal employees in positions that require a high degree of trust and confidence (Exec. Order No. 12,564, 3 C.F.R. 224 ). Guidelines promulgated by the department of health and human services established scientific and technical requirements concerning specimen collection, laboratory analysis, and interpretation of test results for the federal drug-testing program.
In response to this federal impetus, employers have dramatically increased drug testing of employees. Many state laws now encourage private employers to periodically test their employees for illegal drug use, and many private employers have asked their state legislatures to pass drug-testing laws. In the public sector, however, the U.S. Supreme Court has ruled that random drug testing of government employees constitutes a "search" that must comply with the requirements of the Fourth Amendment before it may be deemed legal (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 ).
The meaning of the term privacy changes according to its legal context. In constitutional law, privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation. In this sense, privacy is associated with interests in autonomy, dignity, and self-determination. Under the common law, privacy generally means the right to be let alone. In this sense, privacy is associated with seclusion. Under statutory law, privacy often means the right to prevent the nonconsensual disclosure of sensitive, confidential, or discrediting information. In this sense, privacy is associated with secrecy.
The privacy issues associated with genetics have led to various legal disputes. The lawsuits over genetic research and testing concern matters such as the taking of the blood or tissue; the use of the blood or tissue; the distribution of the blood or tissue; the use of previously acquired samples of blood or tissue to conduct new tests; and whether a gene can receive patent protection. One of the more emotional issues associated with genetic testing is the testing of persons without their consent. In Norman-Bloodsaw v. Lawrence Berkeley Laboratory, a research lab under the U.S. department of energy was sued for secretly testing certain employees.
Norman-Bloodsaw began in 1994 when Marya Norman-Bloodsaw, a forty-one-year-old clerk in the accounting department of Lawrence Berkeley Laboratory, asked to see her medical records. When she inspected her records, Norman-Bloodsaw recognized the code for syphilis testing. Norman-Bloodsaw did not recall being told that she was being tested for syphilis, nor did she recall requesting such testing. At Norman-Bloodsaw's urging, several other employees consulted their own medical files and found that they too had been tested for genetic defects and other medical conditions without their knowledge or consent.
The secret testing seemed to establish a pattern of discrimination. Although the lab had tested all new employees for syphilis, African Americans and Latinos were re-tested for the disease. The lab also tested and re-tested its African American employees for sickle cell anemia, and women were tested regularly for pregnancy. White men were not re-tested for any diseases, except for white men who were married to black women who secretly tested for syphilis.
The lab testing by Lawrence Berkeley Laboratory allegedly constituted illegal discrimination and the violation of privacy rights. Vertis Ellis, a 47-year-old African American woman, for example, had been tested for sickle cell anemia and for pregnancy, but she had never requested the tests, authorized the tests, or received results from the tests. "I felt so violated," Ellis told U.S. News & World Report. "I thought, 'Oh, my God. Do they think all black women are nasty and sleep around?'" Norman-Bloodsaw, Ellis, and five other employees of Lawrence Berkeley Laboratories filed a class action suit against the lab, alleging violations of privacy and civil rights.
Lawrence Berkeley Laboratory, the oldest research lab in the country, argued that it was not liable because the employees had all agreed to receive comprehensive physical examinations. A defendant in the case, Thomas Budinger, a former medical director of the lab, defended the testing of African-Americans for syphilis. "[T]hat's where the prevalence of the disease is," Budinger explained to Hawkins. "How come only people over a certain age would get an EKG? See the logic?" The laboratory also denied that the testing was done in secret. According to attorney Douglas Barton, the lab posted test results on a wall in the exam room. The plaintiffs in the case disputed that assertion, and they argued that they had not agreed to repeated testing without their consent, but the federal district court in San Francisco dismissed the case. According to Judge Vaughn Walker of the federal trial court in San Francisco, the tests were administered as part of a comprehensive medical examination to which [the employees] had consented.
The plaintiffs appealed the dismissal of the case to the Ninth Circuit Court of Appeals. In February 1998, the federal appeals court reversed the ruling and remanded the case for trial. Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998). According to the appeals court, the testing violated constitutional privacy rights if the employees had not given their consent and there were no reasonable medical or public health needs that justified the testing. The testing also violated Title VII of the civil rights act of 1964 if the testing was conducted based on race and gender-specific traits. The appeals court put a stop to the testing and ordered the lab to delete all of the secret test results from the personnel files of the employees.
The Norman-Bloodsaw decision is important because it places some limits on the use of genetic testing of employees. Every year, genetic researchers are discovering new genetic predictors for diseases, and insurance companies may begin to base eligibility for their medical and life insurance policies on a person's genetic predisposition to diseases. If, for example, a person seeking insurance is genetically tested and found to have a predisposition for a fatal disease, the insurance company may wish to deny coverage.
State departments of motor vehicles (DMVs) require drivers and automobile owners to provide personal information, which may include a person's name, address, telephone number, vehicle description, social security number, medical information, and photograph, as a condition of obtaining a driver's license or registering an automobile. Finding that many States sell this information to individuals and businesses for significant revenues, Congress enacted the Driver's Privacy Protection Act of 1994 (DPPA), which establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent. In Reno v. Condon, 528 U.S. 141 (2000), South Carolina and its attorney general brought suit alleging that the DPPA violates the Tenth and Eleventh Amendments to the U.S. Constitution. Concluding that the DPPA is incompatible with the principles of federalism inherent in the Constitution's division of power between the States and the federal government, the district court granted summary judgment for the State and permanently enjoined the DPPA enforcement against the State and its officers. The Fourth Circuit affirmed, concluding that the Act violates constitutional principles of federalism. The Supreme Court ruled that the DPPA is a proper exercise of Congress' authority to regulate interstate commerce under the commerce clause, U.S. Const., Art. I, §8, cl. 3. The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because drivers' personal, identifying information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation.
Dworkin, Ronald. 1996. Freedom's Law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard Univ. Press.
Garrow, David. 1994. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Scribner.
Grant, Jeffrey R. 2000. Surveillance Society. Toronto, Ontario: Frontier Research.
Kennedy, Caroline, and Ellen Alderman. 1995. The Right to Privacy. New York: Knopf.
Posner, Richard. 1981. The Economics of Justice. Cambridge, Mass.: Harvard Univ. Press.
Restatement of the Law Second, Torts. 1987–2001. New York: American Law Institute.
Warren, Samuel D., and Louis D. Brandeis. 1890. "The Right to Privacy." Harvard Law Review 4.
Acquired Immune Deficiency Syndrome; Consumer Credit; Death and Dying; Drugs and Narcotics; Employment Law; Libel and Slander; Parent and Child; Penumbra; Privileged Communication; Quinlan, In re; Search and Seizure.
Privacy is a concept related to solitude, secrecy, and autonomy, but it is not synonymous with these terms; for beyond the purely descriptive aspects of privacy as isolation from the company, the curiosity, and the influence of others, privacy implies a normative element: the right to exclusive control of access to private realms. The philosophical problem of private knowledge, whether and in what sense knowledge and experience may be idiosyncratic and fundamentally incommunicable to others, will not be discussed here (see Ayer 1959). Rather, after some comments on the right to privacy and the basis for contemporary interest in the subject, this article will consider some of the determinants and indicators of privacy, the elements of a functional analysis of privacy, and finally, the law of privacy.
A right to privacy is recognized both in law and in common parlance; but different legal systems emphasize different aspects, and customs related to privacy differ greatly from culture to culture, from social system to social system, and from situation to situation. Many of the claims to the right to privacy are difficult to distinguish from other claims to rights of the personality, from claims to respect for personal integrity, and from claims against interference by government and other external agents. It has been said that a free society is governed by the principle that “there are frontiers not artificially drawn, within which men should be inviolable, these frontiers being defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it is to be a normal human being” (Berlin 1958, p. 51). The frontiers mentioned are “not artificially drawn” because they are recognized in a given culture as legitimate boundaries of the personality. More generally, they are recognized as identity boundaries that define the culturally recognized entity—be it personality, status, collectivity, or institution—whose “space of free movement” (Lewin  1948, p. 5), or domain of autonomous activity, or privacy is at issue.
Among the material facts and relatively fixed social conditions that strongly affect patterns of privacy must be reckoned population density, rates of interaction, patterns of residence, the division of labor, and the nature of family and other social relationships. Comparative anthropological data do not seem to exist in a form that crystallizes out the aspects relevant to questions of privacy, nor have correlations of these aspects with other social and cultural elements been given any extensive study. The topics mentioned here, accordingly, suggest only the range of matter that appears relevant and deserves further study.
Urban society of necessity has privacy standards and privacy problems different from those of rural society. Through the variety of experiences open to the urban dweller and the multiplicity of subgroups to which he may be tied, he becomes more distinctive, more isolated, and more aware of his existence and his rights as a distinct person. In the urban setting, individual honor supersedes family or community honor, and individual privacy gains legitimacy. As Maine (1871) pointed out, the legitimacy of group interests historically precedes the claims of individual interests. Thus the nature of privacy has been changing for groups as well as for individuals.
Private property may be looked upon as a manifestation of the concept of individuality in a given culture. In Western industrial societies, the concept of property is undergoing fundamental changes as an increasing fraction of the wealth of each nation is distributed by its government. The transition from “privilege” to “right” (e.g., to receive licenses, franchises, grants, or welfare benefits) constitutes a change in the region over which individuals or organizations may expect to have autonomous control, and thus surely changes the region over which privacy may be claimed. For example, if support from a welfare department is seen as a right, much of what is now done in welfare client investigations would surely be considered an invasion of the client’s privacy (Reich 1964; 1966). In general, major social changes imply changes in identity boundaries and domains of privacy.
Residence patterns and family structure put bounds on patterns of interaction and thus on patterns of privacy (Chombart de Lauwe 1961; 1965). Conversely, privacy norms will dictate some aspects of residence patterns and will exert a strong influence on the process of individual development within the family. But no set of external conditions completely determines patterns of privacy. Even in the most crowded situations one occasionally finds mechanisms that give the individual privacy by institutionalizing places and occasions that grant the individual sanctuary from approaches by others. On the other hand, the relatively isolated city apartment dweller may find that he has very little privacy because of the thinness of walls, the location of doors and windows, the accessibility provided by mail and telephone, and the hordes of service people who collect refuse, read meters, and inspect or “service” the machinery with which the modern apartment is filled, not to mention salesmen, interviewers, and others who have developed the skill of approaching people for one purpose or another.
Distance is perhaps the most obvious and external characteristic of social interaction that may be taken as an indicator of exclusiveness or intimacy, of respect or contempt (Simmel  1958, pp. 320–324). An “undue closeness,” that is, one which violates exclusiveness or intimacy norms, clearly represents an invasion of privacy. Hall (1963) has coined the term “proxemics” to denote the study of the distance kept between people of different backgrounds in different situations. The strong feelings aroused by cultural differences in regard to habits of intimate contact indicate the social and psychological importance of distance. For example, that men should hold hands when walking together seems very strange to the European but is quite acceptable to the Arab. Similarly strange to the northern European and North American city dweller are customs such as conversing at a distance so short that one feels the warmth of the other’s body and the spray from his mouth; the sharing of half-chewed material (e.g., the betel wads of the Tikopia); the sharing of eating utensils; the chewing of the child’s food by the mother (Hall 1959). Indeed, some scholars have suggested (e.g., Lee 1959) that the large differences in habits in different cultures regarding the constancy and frequency of body contact between mother and child have a bearing on differences in character development.
Concealment, or avoidance of observation, is another action from which privacy norms may be inferred. In anthropological compendia concealed behavior is listed primarily in terms of religion and magic, on the one hand, and modesty patterns, on the other. Recalling Durkheim’s definition of the sacred (1912, pp. 56, 236–237 in the 1961 edition), it becomes quite clear how much privacy shares with sacredness. The sacred is set apart, isolated, untouchable except by special people with special dispensations, and it inspires a respect which demands that a distance be kept from it. Without stretching common meanings, it can be said that the right to privacy asserts the sacredness of the person. Modesty is usually discussed in relation to biological events and functions, and anthropologists have found some regularities in the social patterning of these. For bathing and elimination, segregation of the sexes is common; for eating, such segregation is much less common. Sexual intercourse is most commonly hidden in some way, although customs demanding rather little concealment or none at all, especially on ceremonial occasions, have been reported (see, for example, Ford & Beach 1951, as well as Westermarck 1889). Childbirth, illness, death, and religious rites are events at which only individuals in particular statuses or in particular relationships are allowed or expected to be present. The analysis of such patterns in terms of their consequences for social systems—for example, that occasional exclusiveness affirms the solidarity of the exclusive group —appears in many cases to be more successful than the analysis of the motivation of the participants. Yet, what is perhaps the dominant reason for seeking privacy, namely, the desire to be insulated from observation, is intimately related to motives of avoiding criticism, punishment, or the discomfort of feeling inhibited.
Social and technological developments have greatly increased the possibility of observing the activities of individuals and groups, of disturbing their equanimity or internal balance, and of influencing or controlling their behavior. Such possibilities of encroachment upon privacy inevitably become realities unless effective social control mechanisms are developed. Law provides one such mechanism; but in a period of rapid social change, the heterogeneity of social norms and beliefs leaves much uncertainty and instability of behavior in those areas of action which law does not seek to control or fails to control.
Technology provides the material potential for electronic spying and high-speed record keeping and information retrieval; for psychological testing and psychiatric interviews; for the use of drugs and other physiological agents, as well as methods of physical deprivation, irritation, and coercion which, contrary to the victim’s wishes and interests, may unveil the secrets of his mind; and for the manipulation of groups to make people confess or turn informers. The chances that these methods will be used are vastly increased if ideologies are at hand to legitimate such use.
When ideologies, political or religious, demand orthodoxy of all citizens, or when confessions of guilt or the punishment of persons, irrespective of proof of guilt, are considered justifiable on administrative or educational grounds, spying and informing, forced confession, and coercive persuasion will flourish. Ideologies of religious or political “purity,” of “moral community” or of “mental health,” can be and have been employed to legitimate the use of psychological techniques for the manipulation of behavior in flagrant disregard of time-honored concepts of personal integrity (Lifton 1961; Schein et al. 1961; Szasz 1963). Thus, in the current crisis in the relations between psychiatry and law one may observe a monumental obfuscation in the notions of personal responsibility and mental health, of therapy and punishment, of personal integrity and the individual’s welfare, as these terms are defined by authorities in these fields (Szasz 1963).
The basic social-psychological mechanism that motivates seclusion is expressed by the following proposition: The greater the (perceived) probability that an action will be observed, the greater the probability that the action will be in compliance with the perceived social norms of the observer.Observation is a crucial part of social control (Merton  1957, pp. 336–357; Zetterberg 1957; Hopkins 1964); hence, privacy norms put limits upon the degree of social control.
Opportunity for privacy facilitates spontaneity. For example, in the therapeutic professional-client relationship confidentiality implies not only that the client will be protected from external sanctions but also that the professional will not exert the usual sanctions for deviance. Thus the client may feel free to tell what the professional may need to know, or what the client may need to tell, if he is to be helped. The experiments in stimulating group creativity that have been called “brainstorming” have, with limited success, attempted to institutionalize the withholding of sanctions (Haefele 1962, pp. 155–156). But the most usual method of attempting to minimize the inhibitions of workers whose creativity is being tapped is to grant them a maximum of privacy.
Imperfect consensus and integration of norms and values are found in all but the smallest, simplest, and most homogeneous societies; consequently, in most societies a degree of deviance from legitimate expectations of some role partners is unavoidable. Privacy may therefore be seen as having the function of protecting people against the psychological conflict that would be generated by unremitting observation. In a large-scale, pluralistic society such protection is especially necessary.
Privacy insulates the individual from social pressures to compliance and generally reduces the need to act in ways that are likely to gain the approval of others. Gouldner and Peterson (1962, pp. 44—45) have made the distinction between “self-esteem”–the positive self-evaluation gained from others’ approval, by “consensual validation”–and “self-regard”—the positive self-evaluation attained through recognition of one’s distinctness from others, through “conflictual validation.” Privacy not only reduces the need for consensual validation but also provides an opportunity for the process of individuation, which depends on conflictual validation. Thus the development of autonomy and personal responsibility in children and adolescents requires opportunities for them to act autonomously, in spite of the possibility that their actions may be contrary to the dominant norms. Privacy and tolerance would seem to be alternative conditions for such opportunities. In general, the less individuals can be relied upon to have internalized norms, the greater will be the external social control. Where both distrust and external controls become particularly severe, various forms of social and psychological pathology may be expected. Severe efforts to interfere with a child’s attempts to develop autonomy have been reported to be one component of the etiology of schizophrenia (Lennard et al. 1965).
The internalization of norms may be considered a functional alternative to external social control. Hence, the greater the internalization of norms, the greater the privacy granted and, therefore, the greater the development of privacy norms.
Other things being equal, the longer the socialization process, the greater the likelihood that relevant norms are internalized and that subsequent supervision is minimal. Physicians and other professionals who have a relatively long educational experience are subsequently given much responsibility with only sporadic supervision. Privacy may also be seen as a reward for responsibility. Studies of industrial workers in the United States have shown rather consistently that close supervision, that is, supervision with short intervals between supervisory contact, and hence with little privacy, results in poor morale and low productivity (Whyte 1961). In a study of industrial work in England, it was found that the normal interval between supervisory contacts was an excellent measure of the responsibility exercised by a worker and could be used as a basis for wage scales (Jaques 1956).
This correlation between responsibility and privacy illustrates a more general correlation between social rank and privacy. Certainly, the higher the individual’s socioeconomic rank, the more likely it is that his physical amenities and interaction patterns can be arranged so as to maximize privacy; and it is equally true that the higher the socioeconomic rank, the greater the individual’s power to defend his rights, including privacy, against both neighbors and agents of the community or state. Furthermore, social distance, exclusiveness, and thus privacy, as expressions of self-regard, are correlated with social rank. This correlation between social rank and privacy is emphasized by the problem of securing privacy for celebrities and public servants whose visibility is especially high.
The privacy of collectivities
Many instructive examples of the social structure of privacy situations can be found in the privacy patterns of collectivities. The family is a collectivity that demands respect and privacy; in some societies—for example, contemporary Japan and Greece, as well as in most of the developing societies—the claims of the family or larger group far outbalance the rights of the individual. One may expect to find this to be the case wherever family or group honor is the ultimate criterion by which the individual is judged. Aristocracies provide examples, but so do such groups as the Mafia.
Family types may be classified by the degree of freedom with which they grant access to nonmembers. “Open” families readily admit members from neighboring families; their doors are not locked, and their members freely mind each other’s business, including, for example, the disciplining of children. Little secrecy is possible, and mutual social control is at a maximum. This pattern is likely to occur only if the community has a relatively impermeable privacy boundary: the families are open, but outsiders from beyond the community are kept out. The “closed” family, at the other end of the continuum, protects its privacy by dwellings and other technical arrangements that preserve distance and exclusiveness, but above all by norms that prescribe social distance and formality in social relations. Since there is much less mutual social control, greater variety may be expected to develop among closed families, as well as greater individuality within them. Thus the privacy of the closed family in the open community appears to have the function of generating and preserving the diversity of personalities and values within a given society.
The following generalization may tentatively be deduced from this case and other examples to follow: In collectivities with strong privacy boundaries, subcollectivities will tend to be relatively open; in open collectivities, subcollectivities will tend to be closed. The “open society” contains closed social, political, religious, economic, and other organizations. They are closed, at least, to political influence and investigation by the government; and those organizations which are in a competitive relationship (e.g., political parties) are also closed to each other in certain ways. In contrast, closed totalitarian societies either do not permit organizations to develop within them or demand great permeability of all organizational boundaries to governmental observation and influence—to the extent that family members are encouraged to inform on each other. Many situations—familial, therapeutic, conspiratorial, educational—combine strong external privacy boundaries with demands for openness on the part of the individuals who are the subunits. Such openness provides an opportunity for intensive socialization, for the internalization of the norms and values of the collectivity, and, as a special case, for the development of that trustworthy identification with the collectivity which is called loyalty.
Loyalty is a prerequisite for privacy in a collectivity that feels itself threatened. Above all, the loyalty of those in leadership and other “sensitive” positions must be assumed, unless it is possible to subject them to constant surveillance by other members of the collectivity, whose loyalty would, in turn, have to be assumed. On a national scale, differences in the social structuring of sentiments can have very important implications for general climates of trust and the concomitant state of privacy. Great Britain and the United States provide an interesting contrast (Shils 1956; Lewin 1936; Hyman 1963). Traditionally, privacy standards for both the individual and the government are much higher in Britain than in the United States. While it would be difficult to say whether, in fact, loyalty is greater in one country than in the other, the common identification with dominant national institutions is made more visible in Britain, for example, by recurring expressions of the generally shared attitude of deference toward the crown, the government, and those higher in the stratification system in general. Thus there is a recurrent expression of consensus invoking the common history of a relatively homogeneous population and focused upon the leadership of the country; and since the leadership group reflects the same consensus in its public utterances, there is a greater continuity of sentiment and trust. Since the American public lacks such recurrent expressions of consensus, it has more easily fallen prey to jingoistic demagogues, and this tendency has resulted, at various times, in widespread suspicion of “treason in high places” and rampant loyalty investigations that have trampled privacy underfoot. [SeeLoyalty.]
The law of privacy
Laws regarding the right of privacy were relatively late in arriving on the scene. While a general law of private personality, rooted in Roman law, found its way into numerous Continental codes, judges have preferred to link the right to privacy with property rights, and its violation with specific torts, such as libel or slander, copyright infringement, breach of contract, trespass, and assault and battery. This has been particularly true of AngloAmerican courts; indeed, common-law jurisprudence regarding the right of privacy dates back no farther than 1890, when Warren and Brandeis (1890) published a famous article on this topic. In England there is still no actionable invasion of privacy unless property rights have been violated or reputation has been injured.
In the United States a general right to privacy was first explicitly affirmed by the Supreme Court as recently as 1965, in Griswold et al. v. Connecticut(381 U.S. 530). This decision invalidated a Connecticut law that prohibited the use of contraceptives even by married couples. Yet the dissenting opinion of Justice Potter Stewart questioned the legal basis of the decision: “What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees/ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” In fact, the majority opinion, written by Justice Douglas, relied upon “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” In both the concurring and the dissenting opinions, implied references to natural law were called into question. But it cannot be questioned that fundamental values were invoked when the opinion of the Court mentioned that the marriage relationship is “intimate to the degree of being sacred.” It is quite literally Durkheim’s idea of the sacred that is involved here. An appeal to such basic and general values would not have been necessary if this decision could have been based on more immediate precedents.
Invasions of privacy
Invasions of privacy recognized up to 1965 in the U.S. law courts have been categorized by Prosser (1960, pp. 389 ff.) into “four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff… ‘to be let alone.’” A somewhat different view has been expressed by Bloustein (1964), who has argued brilliantly that this common element is the central issue in the law of privacy. It has been said that the law of privacy developed as a parasite upon laws about specific classes of torts (Harper & James 1956, pp. 677–679). However, Bloustein pointed out that court decisions, judicial opinions, and the most important scholarly sources make clear the principle that, beyond the particular torts to which privacy cases have been tied, any invasion of privacy constitutes an offense against the rights of the personality—against individuality, dignity, and freedom.
The following discussion of Prosser’s four classes of torts will serve to illustrate the specific wrongs that Anglo-American courts have connected with the concept of privacy. The first category is concerned with intrusion upon the plaintiff’s seclusion or solitude or into his private affairs. Exposure of one’s private doings to public view, to Peeping Toms, to eavesdropping and wire tapping, to open pursuit, shadowing, trailing, or public surveillance is seen as disturbing one’s equanimity. And this fact, rather than any possible harm or loss subsequent to the intrusion, is the basis of the claim that the right to privacy has been invaded. “It appears obvious,” wrote Prosser (1960, p. 392), “that the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.” However, Bloustein pointed out a critical distinction made by Warren and Brandeis when they asserted that mere injury to feelings is without legal remedy. Invasion of privacy is thus “a legal injuria” or an “act wrongful in itself”; it is not “mental suffering” that is taken into account in reckoning damages for a legal injury. In common parlance the term “privacy” is very often employed in connection with what legally may come exactly under the categories of trespass, nuisance, or the infliction of mental distress, although under U.S. law the offense in question may not involve any legal question in regard to privacy.
The second category of invasions of privacy is concerned with public disclosure of embarrassing private facts about the plaintiff. This was the principal topic of the article by Warren and Brandeis, upon which most of the Anglo-American legal discussions of privacy have been based. Warren and Brandeis pointed out that, in contrast with the law of defamation, which deals only with damage to reputation by lowering a person in the estimation of his fellows, the right to privacy grants protection against actions that would outrage a person’s own feeling, irrespective of his reputation. Thus, to publish another’s name or picture is an invasion of his right to privacy if it is done without his consent and if it cannot be justified as a matter of public interest, as in the case of the actions of a public figure. The truth of the disclosed matter is no defense, as it may be under the law of defamation.
The third category deals with publicity which places a person in a false light in the public eye. The principal cases in this category deal with the publication by the police of information about an individual which may lead the public to infer that he has committed delinquencies of which he has not been convicted. Impersonating someone and forgery of another’s signature also belong to this class of privacy invasions, which, in contrast with the other three classes, depends on the falsity of the fiction that is publicized.
Finally, Prosser’s fourth category concerns appropriation,for the defendant’s advantage, of the plaintiff’s name or likeness. In contrast with the three other classes of privacy invasions recognized by the U.S. law, this one involves the use of th advantage gained through the offensive actions. It seems to focus more on the proprietary aspect than the others. What it shares most crucially with the other recognized privacy invasions is that it constitutes an attack upon the individual’s identity.
Privacy law under civil codes
In countries under civil codes privacy law is often better developed than in common-law countries. In civil codes, laws against many specific privacy invasions can be found under the most diverse chapters of law Correspondence by letter, telegram, and telephone, as well as personal information given to public officials or professionals, tend to be explicitly pro tected. And each code has its peculiar prohibitions, for example, against “intrusion by illicit means into another’s secrets,” or against “injury to per sonal relationships owing to the willful or negligent act of another.” General categories of privacy violation, such as the “injury to personal relationships” just mentioned (which occurs in the Swiss code), are fairly common, although varied in content. On the Continent the recognition and protection of the right of privacy is based, in large part, on the con cept of the injuria delict derived from the Roman law. The concept of Personlichkeitsrecht and th idea of a tort contra bonos mores have also done much to strengthen judicial protection of personal privacy (Weeks 1963, p. 501).
Finally, it should be noted that the Draft Covenant of Civil and Political Rights as adopted at th fifteenth session of the General Assembly of th United Nations, in 1960, recognizes a right to pri vacy in article 17: “1. No one shall be subjected to arbitrary or unlawful … attacks on his honour and reputation. 2. Everyone has the right to the pr tection of the law against such interference or at tacks” (United Nations…1961).
The limits of privacy
The legal protection of privacy has inherent limitations, since legal remedies of privacy invasions may bring with them further exposure of the matter that was to be kept private. It remains to be seen whether the recognition of a general right to privacy by the U. Supreme Court in Griswold v. Connecticut will indeed open the gates to a vast amount of litigation about privacy, a fear often expressed in past discussions of possible developments in the law o privacy.
A matter closely related to privacy ( although not subsumed under the law of privacy) that is likely to be the source of some litigation is the subject of confessions made by citizens accused of a crime. Supreme Court decisions in regard to confessions (Escobedo v. Illinois [378 U.S. 478]; Miranda v. Arizona [384 U.S. 436]) are clearly based on th fact that certain policemen and other custodians of prisoners have not sufficiently respected the individual’s right not to reveal what he does not want to reveal. This issue points to another essential difficulty of enforcing the legal protection of pri vacy: violations of privacy often are injuries inflicted by relatively large and powerful forces upon the smallest and weakest element in society, the individual, who may be poor, uneducated, and member of a minority group. Thus the protection of privacy requires not only a degree of consensus in the total population about the rights of the individual, and adequate laws to recognize these rights, but also considerable effort by those who exercise influence and wield power, governmental or otherwise, to enforce the laws and to encourage compliance with the more general social norms of re spect for the individual.
The emphasis that has been placed here on th right of privacy should not obscure the fact that governments and other collectivities have legitimate concerns with private aspects of their members’ lives. Laws establish only guidelines for th competition between the autonomy of the individual and his government; the understanding of that competition requires further study of the functions of privacy for individuals, for collectivities, and for the relationships between the two.
[See alsoCensorship; Ethics, article onethical issues in the social sciences; Loyalty; Organizations, article onOrganizational intelligence. Other relevant material may be found inBrain-washing; Constitutional law; Freedom; Human rights; Interviewing, article OnSocial re search; and in the biographies ofLewin; Simmel.]
Ayer, A. J. 1959 Privacy. British Academy, London, Proceedings 45:43–65.
Bay, Christian 1958 The Structure of Freedom. Stanford Univ. Press. → A paperback edition was published in 1965 by Atheneum.
Berlin, Isaiah (1958) 1963 Two Concepts of Liberty.Oxford: Clarendon.
Bloustein, Edward J. 1964 Privacy as an Aspect of
Human Dignity: An Answer to Dean Prosser. New York University Law Review 39:962–1007.
Chombart De Lauwe, Paul H. 1961 The Sociology of Housing Methods and Prospects of Research. International Journal of Comparative Sociology 2:23–41.
Chombart De Lauwe, Paul H. 1965 Des hommes et des villes. Paris: Payot.
Douglas, William O. 1958 The Right of the People.Garden City, N.Y.: Doubleday.
Durkheim, Émile (1912) 1954 The Elementary Forms of the Religious Life. London: Allen & Unwin; New York: Macmillan. -* First published as Les formes elementaires de la vie religieuse, le systeme totemique en Australie. A paperback edition was published in 1961 by Collier.
Evers, Hans-Ulrich 1960 Privatsphäre und Ämter filr Verfassungsschutz. Berlin: Gruyter.
Ford, Clellan S.; and Beach, Frank A. 1951 Patterns of Sexual Behavior. New York: Hoeber.
Gouldner, Alvin W.; and Peterson, R. A. 1962 Notes on Technology and the Moral Order. Indianapolis, Ind.: Bobbs-Merrill.
Haefele, John W. 1962 Creativity and Innovation. New York: Reinhold.
Hall, Edward T. 1959 The Silent Language. Garden City, N.Y.: Doubleday. → A paperback edition was published in 1961 by Fawcett.
Hall, Edward T. 1963 Proxemics: The Study of Man’s Spatial Relations. Pages 422–445 in Arden House Conference on Medicine and Anthropology, 1961, Man’s Image in Medicine and Anthropology. Edited by Iago Galdston. New York: International Universities Press.
Halmos, Paul 1952 Solitude and Privacy: A Study of Social Isolation; Its Causes and Therapy. London: Routledge.
Harper, Fowler V.; and James, Flemming Jr. 1956 The Law of Torts. Boston: Little.
Hofstadter, Samuel H.; and Horowitz, George 1964 The Right of Privacy. New York: Central Book.
Hopkins, Terence K. 1964 The Exercise of Influence in Small Groups. Totowa, N.J.: Bedminster Press.
Hyman, Herbert 1963 England and America: Climates of Tolerance and Intolerance–1962. Pages 227–257 in Daniel Bell (editor), The Radical Right: The New American Right Expanded and Updated. Garden City, N.Y.: Doubleday. → A paperback edition was published in 1964.
Jaques, Elliott 1956 Measurement of Responsibility: A Study of Work, Payment and Individual Capacity. Cambridge, Mass.: Harvard Univ. Press.
Lee, Dorothy 1959 Freedom and Culture. Englewood Cliffs, N.J.: Prentice-Hall.
Lennard, Henry L.; Beaulieu, Maurice R. and Embrey, Nolen G. 1965 Interaction in Families With a Schizophrenic Child. Archives of General Psychiatry 12:166–183.
Lifton, Robert J. 1961 Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China. New York: Norton.
Maine, Henry J. S. (1871) 1890 Village-communities in the East and West, to Which Are Added Other Lectures, Addresses, and Essays. New ed. London: Murray.
Merton, Robert K. (1949) 1957 Social Theory and Social Structure. Rev. & enl. ed. Glencoe, III.: Free Press.
Pound, Roscoe 1915 Interests of Personality. Harvard Law Review 28:343–365, 445–456.
Prosser, William L. 1960 Privacy. California Law Review 48:383–423.
Reich, Charles A. 1964 The New Property. Yale Law Journal 73:733–787.
Reich, Charles A. 1966 The New Property. Public Interest No. 3:57–89.
Ruebhausen, Oscar M.; and Brim, Orville G. Jr. 1965 Privacy and Behavioral Research. Columbia Law Re view 65:1184–1211.
Schein, Edgar H.; Schneier, I.; and Barker, C. H. 1961 Coercive Persuasion: A Socio-psychological Analysis of “Brainwashing” of American Civilian Prisoners by the Chinese Communists. New York: Norton.
Shils, Edward 1956 The Torment of Secrecy: The Background and Consequences of American Security Policies. Glencoe,III: Free Press.
Simmel, Georg (1902–1917) 1950 The Sociology of Georg Simmel. Edited and translated by Kurt H. Wolff. Glencoe, III.: Free Press.
Simmel, Georg (1908) 1958 Soziologie: Untersuchungen iiber die Formen der Vergesellschaftung. 4th ed. Berlin: Duncker & Humblot.
Szasz, Thomas S. 1963 Law, Liberty and Psychiatry: An Inquiry Into the Social Uses of Mental Health Practices. New York: Macmillan.
United Nations, General Assembly 1961 Draft International Covenants on Human Rights. U.N. General Assembly, Official Records, Session 15, Annexes, Agenda Item 34.
U.S. Office of Science and Technology 1967 Privacy and Behavioral Research. Washington: Government Printing Office.
Warren, Samuel D.; and Brandeis, Louis D. 1890 The Right to Privacy. Harvard Law Review 4:193–220. → Reprinted in Samuel H. Hofstadter and George Horowitz, The Right of Privacy, 1964.
Weeks, James K. 1963 Comparative Law of Privacy.Cleveland Marshall Law Review 12:484–503.
Westermarck, Edward A. (1889) 1921 The History of Human Marriage. 5th ed. 3 vols. New York: Macmillan.
Westermarck, Edward A. (1906–1908) 1924–1926 The Origin and Development of the Moral Ideas. 2d ed. 2 vols. London: Macmillan.
Westin, Alan F. 1967 Privacy and Freedom. New York: Athenaeum. → A study sponsored by the Association of the Bar of the City of New York.
Whyte, William F. 1961 Men at Work. Homewood, III.: Dorsey.
Zetterberg, Hans L. 1957 Compliant Actions. Ada sociologica 2:179–201.
Sections within this essay:Background
Federal Law Governing Workplace Privacy
Federal Constitutional Law
State Law Governing Workplace Privacy
State Constitutional Law
State Common Law
The American Bar Association
Electronic Privacy Information Center
National Lawyers Association
National Organization of Bar Counsel
Employers have a legitimate and important interest in maintaining an efficient and productive workforce and a safe workplace. Most employers establish rules governing workplace conduct to ensure that employees stay on task and earn their wages. Yet, these rules are often broken, and that in turn increases the need for employers to monitor their employees. Prior to the present era of technology and computers, employer supervision typically took the form of hands-on monitoring, a supervisor patrolling the workplace to make sure that employees were doing their jobs. In some employment settings hands-on supervision remains common place. For example, many manufacturers still employ supervisors to monitor assembly-line workers as they toil each day. In a host of other employment settings, human supervision has been replaced at least in part by technological supervision.
Technological innovations, particularly computers, have drastically altered the nature of the employer-employee relationship. Where once a human supervisor could only monitor employee activity in one place at one time, networked computers now allow employers to monitor nearly everything, nearly all the time, and without employees knowing whether they are being watched. Internet usage can be monitored by employers seeking to compile data about the websites being visited by their employees. Files stored on employees' hard drives can be scanned for format and content. Surveillance cameras can monitor workers' activity throughout the workplace. Telephone lines can be monitored and telephone conversations recorded.
There are two kinds of workplace electronic surveillance, quantitative and qualitative. One type involves monitoring records and analyzes quantitative information, such as the number of keystrokes per hour and the number of minutes spent on the telephone each day. The other type of monitoring analyzes the quality of performance in whatever qualitative terms an employer defines. For example, many employers monitor the content of incoming and outgoing email to make sure the messages exchanged are work-related.
Balanced against employers' interests in maintaining an efficient, productive, and safe workplace are employees' interest in privacy. Workers have a legitimate and important interest in being able to perform their jobs without fear of embarrassment or stigma that might result from an employer's unreasonable intrusion into their workspace. It is also reasonable for employees to expect that their employers will not disclose personal information they obtain via pre-employment applications, honesty tests, polygraph examinations, criminal background checks, urine or blood analyses, and the like.
The interests of employers and employees are not always at odds. The quality of the work environment is a concern to both groups. Employees do not generally appreciate having to worry about constant electronic surveillance. Respect for employee privacy is one factor people consider when deciding whether to apply for a job, take a job, or keep a job, and employers generally take heed of this reality. Consistent with employers' goal of maintaining a productive workforce is their goal of attracting good employees and keeping them happy. Accordingly, most employers understand that they must offer a professional work environment in which employees can exercise a certain amount of liberty free from the watchful eye of a supervisor. However, the line separating a reasonable intrusion on employee privacy from one that is unreasonable is often neither clear nor bright, and courts are routinely asked to draw the line for labor and management as a whole.
In the United States the right to privacy traces it origins to the nineteenth century. In 1890 Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy" (4 Harv. L. Rev. 193), an influential article that postulated a general common law right of privacy. Before publication of this article, no U. S. court had ever expressly recognized a right to privacy. Since the publication of the article, courts have recognized a general right to privacy that Americans enjoy to varying degrees in different contexts.
Today privacy in the labor context is regulated at both the state and federal levels by a combination of constitutional provisions, federal statutes, and common law. Depending on the jurisdiction, the laws can regulate both private employees and public employees (i.e., employees working for a governmental entity). Companies doing business in multiple states must stay familiar with the privacy laws in each state.
Federal law governing workplace privacy generally falls into two categories, constitutional law or statutory law. There is no federal common law governing workplace privacy, other than the case law interpreting the U. S. Constitution and federal statutes.
The Fourth Amendment to the U. S. Constitution prohibits the federal government from conducting unreasonable searches and seizures, and searches or seizures conducted without a warrant are presumptively invalid. The U. S. Supreme has repeatedly held that public employees are protected by the strictures of the Fourth Amendment precisely because they are employed by the government. O'Connor v. Ortega,480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Workers employed by private companies enjoy no such constitutional protection.
The Supreme Court and lower courts have also consistently ruled that the Fourth Amendment right protecting public employees from unreasonable searches and seizures conducted by their employers is more limited than the right protecting the rest of society from searches and seizures conducted by law enforcement officials investigating criminal activity. The Fourth Amendment only protects individuals who have a "reasonable expectation of privacy" in the place to be searched or the thing to be seized. However, in the public employment context courts have recognized that they must balance the alleged invasion of an employee's privacy against the employer's need for control of a smoothly running workplace.
One consequence of this balancing is that employers typically do not need a search warrant or probable cause to search an employee's work space, so long as the search is for work-related reasons. Even when the search is for evidence relating to employee misconduct, the employer's intrusion need not be made pursuant to a search warrant or probable cause unless the alleged misconduct rises to the level of criminal activity, at which point the employee is entitled to full protection of the Fourth Amendment.
Thus, it is generally recognized that most work-related intrusions by an employer comply with the Fourth Amendment's reasonableness requirement. Courts have said that requiring a warrant for work-related searches would be disruptive and unduly burdensome. To ensure the proper, ongoing operation of governmental agencies, entities, and units, courts interpret the Fourth Amendment as giving public employers wide latitude to enter employee offices, search their desks, and open their drawers and file cabinets for work-related reasons.
Drug testing of government employees (or of private employees pursuant to government regulation) has been addressed by several courts. Upon weigh-ing the competing public and private interests, most lower courts have concluded that such testing is constitutional at least in those instances where the employer possessed a reasonable suspicion that a particular employee was using drugs and that the drugs affected the employee's job performance. For example, employers can compel workers to undergo blood, breath, or urine tests to check for drug use following a serious workplace accident that injured or imperiled others, so long as the employer has reason to believe that the accident was caused in part by an employee's drug use. Courts allowing drug testing in these situations have emphasized that the reasonable suspicion test fairly accommodates employees' privacy interests without unduly compromising workplace safety or the safety of the public.
For certain employees, drug testing is not only constitutionally permissible, but statutorily mandated. Under the Federal Drug-Free Workplace Act of 1988, drug testing is required of both public and private employees who are engaged in work that creates high risks of danger to the health and safety of other workers or the health and safety of the public. 41 U.S.C.A. sections 701 et seq. Employees targeted for mandatory drug testing include those employed in the following industries: mass transit, motor carriers (taxi cabs and buses), aviation, railroads, maritime transportation, and natural gas and pipeline operations. In addition, the Americans with Disabilities Act (42 U.S.C.A. section 12210) and the Rehabilitation Act of 1973 (29 U.S.C.A. sections 701 et seq) allow employers to establish drug testing programs for former drug users who are currently enrolled in a drug rehabilitation program or have completed one in the past. Because courts have interpreted these laws as effectively placing former and present substance abusers on notice, employees subject to their provisions typically understand the very limited privacy rights they enjoy when it comes to employer-mandated drug tests.
Less clear cut is the application of the National Labor Relations Act (NLRA) to privacy issues in the employment setting. The NLRA guarantees employees the right to "self-organize, to form, join, or assist labor organizations, to bargain collectively … and to engage in other concerted activities for … mutual aid or protection." 29 U.S.C.A. sections 101 et seq. The act also prohibits employers from committing "unfair labor practices" that would violate these rights. An unfair labor practice is any action or statement by an employer that interferes with, restrains, or coerces employees in the exercise of their rights to self-organize.
Employer surveillance of employee activities may constitute an unfair labor practice if the surveillance interferes with, restrains, coerces, or intimidates employees who are exercising one of their rights protected by the NLRA. At the same time, the NLRA permits employers to enforce company rules aimed at guaranteeing employee productivity and safety, and federal courts have acknowledged that workplace surveillance is sometimes necessary to achieve these objectives. However, employee surveillance will not normally withstand scrutiny under the NLRA unless a rule is actually in place before the surveillance begins.
Once a rule is in place, the lawfulness of a particular surveillance method will be evaluated on a case-by-case basis. Where union or non-union employees conduct their activities openly on or near company property, employers may lawfully observe their activities without running afoul of the NLRA, even if there is no pre-existing rule in place authorizing such observation. N.L.R.B. v. C. Mahon Co., 269 F.2d 44 (6th Cir. 1959). However, an illegal intent may be inferred from an employer's surveillance of open activities if the surveillance is combined with other forms of employer harassment, interference, or intimidation, and the employee under surveillance is subsequently discharged. A history of anti-union animus will also weigh against an employer who is engaged in what would otherwise be deemed lawful surveillance. Conversely, what otherwise might be deemed an unfair labor practice can be made lawful if the surveillance is isolated, not accompanied by a threat, and the employer gives assurances that the employee's job is safe.
Before conducting surveillance of its employees, employers also need to familiarize themselves with the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. No. 90-351, 82 Stat. 197, June 19, 1968;18 U.S.C.A. sections 2510-2520. Title III of the act prohibits any person from intentionally using or disclosing information that has been knowingly intercepted by electronic surveillance without consent of the persons under surveillance. As originally conceived, the act applied only to the "aural" acquisition of information by recording, bugging, wiretapping, or other devices designed to intercept and transmit sound.
Congress updated the act by passing the Electronic Communications Privacy Act of 1986 (ECPA). Pub.L. 99-508, Title I, Oct. 21, 1986, 100 Stat. 1848. ECPA governs the interception of data transmissions, which comprise the bulk of modern electronic communications. ECPA prohibits anyone from intercepting, accessing, or disclosing electronic communications without first getting authorization from the parties to the communication. However, ECPA does permit employers to monitor employees' electronic communications if the monitoring is done in the regular course of business, regardless of whether the communication involves a data or sound transmission, so long as the employer is the provider of the communication system being monitored. Thus, an employee's use of intra-company email is generally fair game for employers' to monitor. However, employees who transmit messages from work via a third-party email provider, such as Yahoo!, may create a reasonable expectation of privacy that insulates their communications from employer monitoring.
State law governing workplace privacy generally falls into one of three categories, constitutional law, statutory law, or common law. Like their federal counterparts, state courts are cognizant of every employer's need to maintain an efficient, productive, and safe workplace. Nonetheless, state law often affords more protection for the privacy interests of both public and private employees,
Many state constitutions guarantee a right to privacy independent of the right to privacy found in the federal constitution. Those states include Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, Texas, and Washington. Some of these state constitutional provisions apply only to public sector employees, while others have been interpreted to apply generally to all state residents. Although it is difficult to make meaningful generalizations about each of these state constitutional provisions, employees' privacy interests are frequently afforded greater protection under state constitutional law than they are under the federal constitution.
For example, the Texas Supreme Court invalidated a state agency's mandatory polygraph testing policy on the grounds that it violated the employee's privacy rights protected by the Texas constitution. Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d203 (1987). The court found that the test was "highly offensive" to the average employee because of the extremely personal nature of the questions asked. The court also concluded that the test was not accurate enough to provide a reliable way of identifying misbehaving, inefficient, or unproductive employees.
A California court reinstated a railroad employee who was fired for refusing to take a random drug test. The court noted that an employee's right to privacy in refusing a drug test is not absolute under the state constitution but must be weighed against the employer's competing interests. Luck v. Southern Pac. Transp. Co., 218 Cal. App. 3d 1, 267 Cal. Rptr. 618 (1990), rehearing denied 489 U.S. 939, 112 L. Ed. 2d 309, 111 S. Ct. 344 (1990). Conceding that the employer had a compelling interest in maintaining a safe workplace, the court noted that the discharged employee was simply a clerk who had no direct involvement with the railway operations. As a result, the court determined that the employee's privacy interests were more substantial than the employer's countervailing interests.
At the same time, state courts are pragmatic. They are normally disinclined to interpret a general right to privacy as a guarantee of specific individual freedoms that might be exercised to disrupt the workplace or interfere with an employer's legitimate interest in gathering relevant information about employees and job applicants. Thus, the Florida Supreme Court rejected a prospective employee's claim that she was not required to disclose whether she was a smoker on a pre-employment application. City of North Miami v. Kurtz, 653 So.2d 1025 (1995). The court found that the applicant did not enjoy a reasonable expectation of privacy regarding her use of tobacco.
Several states and U. S. territories have enacted statutory provisions that prohibit employers from spying on employees who are exercising certain protected rights. They include Connecticut, Hawaii, Kansas, Minnesota, New York, Rhode Island, the Virgin Islands, and Wisconsin. Most of the prohibitions contained in these statutes closely mirror or expand upon the prohibitions contained in the NLRA. Specifically, the statutes regulate employer surveillance of workers who are engaging in union-related activities, and each statute permits employer surveillance that is done pursuant to clearly defined rules and in furtherance of legitimate business objectives.
A number of states have also enacted statutes that prohibit employers from disclosing certain personal information about employees gathered during the employment relationship. Minnesota, for example, forbids public employers from disclosing information contained in an employee's personnel file. M.S.A. sections 13.01-13.99. Georgia makes it unlawful for employers to obtain certain criminal history information about an employee or prospective employee without that person's consent. OCGA section 35-3-34(A). Alaska makes it unlawful for employers to require employees or job applicants take a polygraph examination. Alaska Stat. Section 23.10.037. However, no state prohibits an employer from requiring an employee or job applicant to undergo a psychological evaluation for the purpose of assessing the test-taker's propensity for truthfulness or deceit.
Several states limit the right of healthcare providers to release medical information to a patient's employer. For example, a Maryland statute generally requires the patient's consent before healthcare providers can disclose medical information to employers. Md Health General Code Ann., section 4-305. Similar statutory restrictions in Maryland prohibit insurance carriers from disclosing medical information to an insured's employer without the insured's consent. Md. Ins. Code Ann., section 4-403.
The state common law of torts generally recognizes three discrete rights of privacy that are regularly asserted during employment litigation. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common law right to sue when information concerning their private life is disclosed to the public in an extremely objectionable fashion. Third, tort liability may be imposed on individuals or entities who publicize information that places someone in a false light.
A valid cause of action for invasion of privacy will not arise for any of these common law torts unless the employer's intrusion is so outrageous or pervasive as to offend the sensibilities of the average, reasonable person. Merely calling an employee at home, for example, will not give rise to a claim for invasion of privacy, unless the employer making the calls is doing so in a persistent and extremely offensive manner. Johns v. Ridley, 245 Ga.App. 710, 537 S.E.2d 746 (Ga.App. 2000). However, a claim for invasion of privacy may be supported by the allegations of female employees who claim that their supervisor has poked holes in the ceiling to watch them disrobe in the women's restroom. Benitez v. KFC Nat. Management Co., 305 Ill.App.3d 1027, 714 N.E.2d 1002, 239Ill.Dec. 705 (Ill.App. 2 Dist. 1999).
At the same time, an employer who merely reveals an employee's credit problems to co-workers may not be held liable for invasion of privacy. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958 (Ind.App. 2001). Nor may an employer be held liable for common law invasion of privacy by circulating a sexually suggestive photograph of a male employee, if the photograph accurately depicts the employee in a place open to the public. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App. 2001). Similarly, an employer does not invade an employee's privacy during an office meeting by suggesting that the employee stole from the employer, if the employer's suggestion is made during an investigation of office thefts and the employee's possible role in them. Zielinski v. Clorox Co., 215 Ga.App. 97, 450 S.E.2d 222. (Ga.App. 1994)
It is telling that much of the law governing privacy in the workplace actually protects employers from liability for invasion of privacy claims brought by employees. In this way the law reflects a general understanding among the American public that the workplace is essentially a place for commerce, productivity, and human interaction, but normally not a place for privacy or seclusion.
For the most part, employees themselves realize that the employer owns the company and expends the resources to make it profitable. Employees generally want to be efficient and productive so they can receive better reviews and better raises. Consequently, the law gives employers wide latitude and ample discretion in dictating how their businesses will be run. On the other hand, an individual does not abandon his or her privacy rights at the employer's front door. Instead, the law puts in place certain checks to prevent employers from overstepping boundaries, abusing their positions of power and authority, and running their businesses in a manner deemed highly offensive or objectionable to the average person.
American Jurisprudence West Group, 1998.
West's Encyclopedia of American Law St. Paul: West Group, 1998.
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In constitutional law, the right of people to make personal decisions regarding intimate matters; under the common law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and electronic surveillance.
Anderson v. Blake
The right to privacy is a powerful legal right, one that is both broad and at times difficult to measure. Government officials who disclose private information that violates an individual's right to privacy may be sued for damages under state and federal laws. However, government officials are protected by one of several immunity doctrines. While judges have absolute immunity, most government officials have a qualified immunity. Officials may claim it by proving that their conduct was not unreasonable in light of clearly established law. In Anderson v. Blake, 469 F.3d 910 (10th Cir. 2006), a police officer who released a videotape of a woman's alleged rape to a television reporter, and which was aired on a local news broadcast, sought to claim qualified immunity from a lawsuit filed by the woman on the tape. The Tenth Circuit Court of Appeals rejected his claim, finding that a woman's privacy interest in such a videotape was clearly established.
Aundra Anderson, a Norman, Oklahoma resident, alleged she was the victim of rape that occurred while she was unconscious. She later discovered a videotape documenting the sexual assault and reported this information to Norman police detective Don Blake, who took the videotape with him. Anderson alleged that Blake promised to keep the tape confidential and use it only to investigate the alleged assault. At some point after their meeting Blake shared the contents of the tape with an Oklahoma City reporter and her cameraman. Anderson alleged that Blake called her and then put the reporter on the line to interview her about the sexual assault. Portions of the videotape were shown on a news broadcast in a way that obscured Anderson's identity. Anderson sued Blake, the news reporter, and the television station, alleging that they had violated her right to privacy. Blake made a motion in federal district court to dismiss him from the case. The district court rejected his motion, finding that Anderson had a legitimate expectation of privacy when she gave Blake the tape. The court also rejected Blake's claims that the criminal activity depicted on tape rendered it beyond constitutional protection and that the video would have eventually been made public. Finally, the court ruled that Blake did not have qualified immunity because Anderson's privacy interest was clearly established under existing law. The denial of qualified immunity made the case immediately appealable.
The Tenth Circuit Court of Appeals upheld the district court rulings. The court noted that at this stage of the proceedings it had to accept Anderson's facts as true and consider them in the light most favorable to her. The key question on appeal was immunity, for if the appeals court sided with Blake he would be dismissed from the litigation. Under U.S. Supreme Court immunity doctrine, Anderson needed to show that Blake's actions violated a constitutional or statutory right and that this right was clearly established at the time Blake gave the reporter the videotape. The court acknowledged that there was no specific right that protected the release of the videotape but there was a general constitutional rule, the right to privacy, which could be applied with "obvious clarity to the specific conduct in question." Anderson had a constitutionally protected privacy interested because the video was of a "personal nature." Supreme Court and Tenth Circuit cases supported this conclusion, holding that the government could not disclose information of this type unless it had a "compelling state interest" and it used "the least intrusive means of disclosing the information."
Anderson's privacy interests were protected because the video depicted "the most private of matters: namely her body being forcibly violated." The court pointed out cases in which individuals had a legitimate expectation of privacy in a diary, answering questions about their sexual history, or in undressing before a guard. Surely the videotape in question matched those cases. Blake contended that video was not protected by the right of privacy because it contained evidence of a crime, citing a case where the airing of a video documenting a plaintiff's private sexual conduct was not protected for that reason. The appeals court found no merit in the alleged precedent because that plaintiff in that case was the perpetrator of a crime, while Anderson was the victim of a crime.
The court concluded that Anderson's privacy interest was clearly established in law at the time Blake shared the video with the reporter. Supreme Court and Tenth Circuit cases backed up this conclusion. At this stage in the litigation Anderson had demonstrated that Blake lacked a compelling interest to release the video and he did not use the least intrusive means of disclosure. Therefore, Blake was not entitled to qualified immunity and must defend his actions.
Texas Legislature Blocks Effort to Require Vaccines for Cervical Cancer
In February 2007, Texas Governor Rick Perry signed the first order in the United States mandating that girls receive a vaccine for the virus that causes cervical cancer. The order was met immediately with strong opposition from the state's conservative legislature, which questioned the legality of the order. Nearly three months after Perry signed the order, the legislature passed a bill that prevents state officials from requiring the vaccinations for at least four years.
A genital HPV infection is a type of sexually transmitted disease caused by human papillomavirus, or HPV. About 30 of the more than 100 different strains of HPV are sexually transmitted. The virus can infect the genital area of men and women. Although most people who are infected with HPV have no symptoms and are in no danger of serious health problems, some high-risk viruses can lead to certain cancers, including cervical cancer. HPV is fairly common, infecting at least half of sexually-active men and women during their lifetimes. Genital HPV is the most common sexually transmitted disease. In the State of Texas alone, nearly 400 women each year die of cervical cancer caused by HPV.
In 2006, the Food and Drug Administration approved a new vaccine for HPV, known as the quadrivalent human papillomavirus vaccine. This vaccine is administered via injection in three doses that are given over a six-month period. The vaccine can be given to girls as young as nine years old, though the recommended age is between 11 and 12 years. Although the vaccination cannot eliminate all possibility of a woman developing cervical cancer, it can reduce the possibility significantly. The Centers for Disease Control and the American Cancer Society have recommended this vaccine in order to reduce the risk of cervical cancer. Even the 16,000-member Christian Medical Association agreed that the vaccine should be required, so long as parents could choose to opt their children out of the requirement.
By early 2007, at least thirteen states, in addition to Texas, were considering whether to mandate HPV vaccinations. Among the states to consider the mandatory vaccinations were Arkansas, California, Colorado, Indiana, Kansas, Kentucky, Maryland, Michigan, New Jersey, Pennsylvania, Virginia, West Virginia, and Wisconsin. (Virginia later became the second state to require the vaccination). Supporters of the vaccination stress that it will be far less costly to require the vaccinations than it would to treat cervical cancer later in life.
Perry bypassed consideration of whether to require the vaccination by signing an executive order on February 2, 2007 that required girls to receive the vaccination prior to entering sixth grade. In order to reduce the cost of the vaccine, which runs more than $360 for the series of three shots, the order made the vaccine available through the Texas Vaccines for Children program as well as through Medicaid. Under the order, parents could choose to opt out of the mandatory vaccinations by submitting a conscientious objection affidavit through the Department of State Health Services. The order would have taken effect in September 2008.
After signing the order, Perry said that the benefits of requiring the vaccination were great. "The HPV vaccine provides us with an incredible opportunity to effectively target and prevent cervical cancer," he said in a press release. "Requiring young girls to get vaccinated before they come into contact with HPV is responsible health and fiscal policy that has the potential to significantly reduce cases of cervical cancer and mitigate future medical costs."
Several Texas lawmakers were not pleased with the order. Shortly after Perry signed the directive, leading members of the legislature criticized Perry's action, saying that the order subverted the legislative process and interfered with the parent-child relationship. Some legislators even asked Texas Attorney General for an opinion about whether the order was within the power of the governor. Moreover, about 26 of the 31 state senators sent a letter to Perry asking him to rescind the order so that the legislature could debate the merits of the vaccination requirement.
Perry refused to back down. In his State of the State address delivered a week after he signed the order, Perry addressed the controversy. "I understand the concern some of my good friends have about requiring this vaccine, which is why parents can opt out if they so choose," he said. "But I refuse to look a young woman in the eye ten years from now who suffers from this form of cancer and tell her we could have stopped it, but we didn't. Others may focus on the cause of this cancer. I will stay focused on the cure. And if I err, I will err on the side of protecting life."
Members of the legislature acted quickly to propose legislation that would effectively block Perry's order. Many of those who opposed the requirement are social conservative who fear that the vaccine sends a message to young girls that sex is permissible. Others oppose the requirement because the vaccine is so new, having only been approved about eight months prior to the order. Among those opposing the order was the Texas Medical Association, which expressed concerns about liability and cost.
Less than three weeks after Perry issued the order, the Texas legislature advanced a bill that would explicitly preempt Perry's action. On March 14, the House approved the bill by an overwhelming majority of 118 to 23. About six weeks later, the Texas Senate followed suit, passing the bill by a 30-1 majority. Under the version passed by the Senate, state officials may not require the shots for at least four years.
Perry could veto the bill, though the legislature appeared to have enough votes to override a veto should that occur.
Congress Passes the Telephone Records and Privacy Protection Act of 2006
In an effort to curb the sale of private phone records, Congress in 2006 approve the Telephone Records and Privacy Protection Act of 2006, Pub. L. No. 109-476, 120 Stat. 3568. The act's purpose is to provide "explicit protection for the privacy of confidential telephone records, including call logs, and to establish specific criminal penalties for the fraudulent acquisition or disclosure of such records without the consent of the consumer." Legislators referred to the proposal as the "pretexting" bill, referring to a term used to describe a practice whereby individuals obtain private phone records through lying, deceit, or impersonation.
The issue involving the sale of private phone records gained prominence in 2006 with the disclosure that officials with Hewlett-Packard had spied on the company's directors. The controversy started in January 2006, the online technology site CNET published an article about HP's long-term strategy. Although the story was upbeat, it contained information that could have only come from an HP director. The company's chairperson, Patricia Dunn, expressed frustration with leaks from the company and decided to try to find out which director had leaked the information. She hired a team of independent electronic-security experts to spy on the communications of the directors.
The team that Dunn hired did not focus on calls made from the company itself, but rather made from personal accounts. Thus, directors' calls from home phones or cell phones were tracked. Moreover, the team did not review the content of the calls, but rather only reviewed the pattern of contacts. This practice eventually allowed Dunn to identify the director who leaked the information. Dunn confronted the director at a meeting in May 2006, which eventually led to the director's resignation from the board. The Securities and Exchange Commission began an investigation of the company's actions, and several former officials, along with the investigators, face criminal and civil charges. (Dunn was diagnosed with ovarian cancer after resigning from HP in September; a judge later dropped the criminal charges against her).
Even before news of the HP scandal broke, lawmakers had become concerned with the ease in which phone records could be obtained. Reporters with the Chicago Sun-Times obtained phone records of undercover agents with the Federal Bureau of Investigation. This information was available from companies that sold the information on the Internet. Law enforcement officials and others expressed their concerns about the possibility that such information could be used the hinder investigations. Moreover, these officials said that the sale of these records violated privacy rights of those whose records were sold.
"If this were not enough of a privacy violation for the average consumer, the [Senate Judiciary] Committee also learned that criminals were employing these services to learn the identity of undercover law enforcement officers, as well as suspected confidential informants and witnesses," said U.S. Representative James Sensenbrenner (R.-Wisc.). "In addition, this practice also endangers victims of domestic violence and stalking, since stalkers and abusers can use cell record information to track a victim's location and associates. Amazingly enough, none of this is clearly illegal under federal law."
In February 2006, Representative Lamar Smith (R.-Tex.) introduced H.R. 4709, entitled the Telephone Records and Privacy Protection Act of 2006. It was referred to the House Judiciary Committee, which released a report on the bill on March 16, 2006. The report expressed concerns about the ease in which companies can acquire the private telephone records. The House committee also noted that though many companies operate on the Internet, as many as several thousand other companies and individuals may provide these services as well. The committee report noted that the services that provide these records often use fraudulent schemes in order to acquire the information. More specifically, the report expressed concern about the practice of pretexting, which "occurs when an unauthorized individual calls the phone company posing as someone who is authorized to receive the information lawfully, such as the actual phone service subscriber or another employee of the target phone company."
The House of Representatives approved the bill on April 25 by a vote of 409 to zero. The Senate received the bill one day later. On December 2006, the Senate approved the measure by unanimous consent. President George W. Bush signed the bill on January 12, 2007.
The act, which became Public Law No. 109-476, amends the federal criminal code to prohibit the obtaining of confidential phone records information from a telecommunications carrier (referred to as a "covered entity" in the statute ) through one of the following means: "(1) making false or fraudulent statements or representations to an employee of a covered entity ; (2) making such false or fraudulent representations to a customer of a covered entity; (3) providing a document to a covered entity knowing that such document is false or fraudulent; or (4) accessing customer accounts of a covered entity via the Internet … without prior authorization from the customer to whom such confidential phone records information relates."
The act imposes fines and imprisonment of up to 10 years for those who violate the statute. The statute also doubles the fines and imposes an additional five-year prison term for violations that occur within a 12-month period and that involve transactions of more than $100,000 or more than 50 customers of a covered entity. Moreover, the act imposes additional five-year terms for those who use confidential phone records information to commit crimes of violence, crimes of domestic violence, and crimes against law enforcement officials and the administration of justice.
Lawfully authorized investigations and intelligence activities are exempted from the act. Congress also exempted certain telecommunications entities from the provisions of the act, when the entity uses public records information for such purposes as billing, protection of property rights, and emergency purposes.
One of the main difficulties in assessing the meaning of privacy in the social sciences is that the term usually connotes a normative character. From the liberal defense of privacy as a right that protects individuals from state intervention and abuse, to the feminist critiques that denounce its role in disguising the oppression of women, most definitions of privacy present contrasting perspectives regarding its value or function.
Yet, when approached from the standpoint of ordinary language, privacy describes a certain domain of social practice—spatial, relational, decisional—that is generally expected to be sheltered from public scrutiny. It can be argued then, that privacy also facilitates the emergence of difference and particularity, and nourishes the development of interpersonal relations based on varying degrees of closeness and intimacy (Boling 1996).
The notion of privacy is closely connected to the predicate private, which can be ascribed to places and objects but also to practices, decisions, information, feelings, or—as critic Iris Young synthesizes—any aspect of life from which one has a right to exclude others. Control over access, then, is a central feature of privacy (Gavison 1980). Since the last decades of the twentieth century, concern over the right to privacy, its limits, and the legal measures to protect it has spanned the advances of information technologies and the incursion of the media; regulation over sexuality and the body, reproductive rights, or domestic violence; and issues of family law, such as decisions on childrearing.
In all these discussions, privacy designates a sphere of life that is protected from the influence of what is deemed external, be it state institutions or the public realm more generally. The history of the distinction between the private and public spheres can be traced back to the Greek philosopher Aristotle (384–322 BCE), who conceived the domain of the household and family in opposition to the polis, or public realm of political activity. The divide has since remained a central theoretical notion and was inherited by the social sciences, often resulting in one of the poles viewed as a residual category defined by its opposition and relative subordination to the other. Modern theories of the public sphere, for example, often relegate the private realm to a subsidiary role. Thus, Hannah Arendt (1906–1975) argues that household matters—such as the sustenance and reproduction of life—are necessary preconditions for political life but are not part of it. In a similar vein, Jürgen Habermas sees the family as functioning to prepare individuals to be rational and autonomous actors in the public realm. In both depictions the spheres are clearly distinguished by virtue of their content, the private being equated with the domestic realm where basic necessities of life are satisfied.
The public/private divide is one of the pillars of liberal political theory, where the private is given preeminence as the sphere of individual freedoms. Classical liberal philosophers attribute a quasi-natural quality to the private realm, which is associated to the individual in opposition to the contractual character of society. This becomes evident in John Locke’s (1632–1704) natural law arguments restricting the power of the state over private property and the family, or John Stuart Mill’s (1806–1873) discussion of privacy as the natural domain of liberty.
Liberalism has long considered privacy a necessary requirement for autonomy, as it provides the adequate milieu to develop the capacity of independent decision making that allows one to lead a self-determined or autonomous life. This argument conveys an implicit spatial understanding of privacy as isolation, or seclusion, straightforwardly demarcating the space of the individual from the outside. However, privacy can conversely be conceived as a condition that allows selective degrees of access and fosters intimacy and relations with others (Schoeman 1992).
Legal perspectives focus on the notion of privacy as a right, questioning if it designates a specific domain not provided for by other established rights, such as the right to property or to individual freedoms, or debating whether it is granted by the U.S. Constitution. In the American case, for example, there has been significant discussion since the late nineteenth century concerning the status of privacy as a principle of common law. Whether considered a legal right or a moral principle, however, there is an understanding of the notion of privacy as protecting individuals from unwanted contact with others and intrusion or judgment on personal decisions.
The feminist critique that emerged in the second half of the twentieth century, has consistently challenged the liberal notion that privacy benefits all equally. Through historical and theoretical elaborations, feminists have shown that the conventional distinction between the public and the private spheres is not only naturalized, but also gendered, as the domestic is considered the realm of women and thus deprived of public recognition. The defense of privacy, they argue, serves the purpose of concealing the oppression of women through the appearance of personal choice and intimacy. Feminists deny any particularity of social relationships that happen in private that inherently distinguishes them from those that take place in public, as they are all conditioned by power and hierarchy. Rather, it is the distinction between the private and the public—between a prepolitical or natural sphere and a political one—that performs the ideological role of hiding oppression. Feminist critics have moved to reject the very distinction by stating that even the personal is political (MacKinnon 1989).
Still, several scholars are reluctant to abandon the notion of privacy altogether, and propose to produce a redescription of the concept taking into account the aforementioned critiques. Political theorists like Jean Cohen or Iris Young, for example, argue that privacy does not merely obscure oppressive practices but also enables diversity by protecting from the homogenizing pressure of the public realm and facilitating differences in experience and perspectives. Moreover, the concept is useful to confront domination of women and minorities by preserving a domain of information and decision, which might involve aspects of intimacy, sexuality, the body, or other personal issues. In a similar tone to Ferdinand Schoeman’s suggestions, these arguments draw away from conceiving the private and the public as clearly demarcated spaces, and view them instead as dimensions of social relations present in different spheres of life. Moving away from the normative bend, social sciences might depict privacy as a common practice emerging from and at the same time constituting a shared form of life.
Arendt, Hannah. 1958. The Human Condition. Chicago: University of Chicago Press.
Boling, Patricia. 1996. Privacy and the Politics of Intimate Life. Ithaca, NY: Cornell University Press.
Cohen, Jean. 2001. Introduction to Section “Privacy and the State.” Social Research 68 (1): 235–236.
Gavison, Rachel. 1980. Privacy and the Limits of Law. Yale Law Journal 89: 421–471.
Habermas, Jürgen. 1989. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Trans. Thomas Burger. Cambridge, MA: MIT Press.
Locke, John.  1980. The Second Treatise of Government. Ed. C. B. Macpherson. Indianapolis, IN: Hackett.
MacKinnon, Catharine. 1989. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press.
Rössler, Beate. 2005. The Value of Privacy. Trans. R. D. V. Glasgow. Cambridge, U.K., and Malden, MA: Polity.
Schoeman, Ferdinand. 1992. Privacy and Social Freedom. Cambridge, U.K.: Cambridge University Press.
Young, Iris. 1990. Justice and the Politics of Difference. Princeton, NJ: Princeton University Press.
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.
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.
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
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.
Europa. (2004). Material on European Union data protection laws is available at http://europa.eu.int/comm/internal_market/privacy/index_en.htm.
Gutierrez, Eva. (2004). "Privacy Implications of Nanotechnology." Available at http//:www.epic.org.
Privacy is the condition of being outside the scrutiny of others. The concept of privacy began in Rome as seclusion or withdrawal from public life. The term has been used in English since the late Middle Ages (c. 1450) to refer to seclusion, solitude, or retirement from public life. Privacy is understood as protection against intrusion into an individual's personal emotions, thoughts, sensations, and experiences in domestic and private life. Privacy thus refers to the realm of the intangible as opposed to being a property right, the benefit of a contract or business arrangement, or an explicit constitutional right in the United States.
PRIVACY AS A LEGAL ENTITLEMENT IN THE UNITED STATES
As a legal entitlement, the idea of a right to privacy has evolved slowly from expanded concepts of property and contractual rights but seems to have arisen in the nineteenth century as a self-evident principle of Western law. As Samuel Warren and Louis Brandeis, a justice of the U.S. Supreme Court, wrote in the Harvard Law Review in 1890, "That the individual shall have full protection in person and in property is a principle as old as the common law" (Warren and Brandeis 1890, p. 1). As nineteenth-century law courts in both Great Britain and the United States developed a right to privacy, they had recourse to a series of analogies that included protection against bodily injury or assault; the model of nuisance, or protection against offensive odors and noises; libel and slander, or the protection of reputation; and copyright and laws protecting intellectual property. Just as the law protected infringements on physical or proprietary existence, it began to recognize that emotions, thoughts, and sensations deserved similar protection. In addition, the development of photographic and other technologies that made it easy to invade the domain of individual private existence in addition to the increasingly invasive activities of the press made the issue of a right to privacy more pressing in the nineteenth century in both the United States and Europe.
"The right to be left alone," as Warren and Brandeis define the right to privacy, is an intrinsic part of what they called the "right to life." This right is more figurative than literal and refers generally to one's right both to conduct one's private affairs in the ordinary course of existence and to what Judge Cooley called "the right to be left alone-the right to live unmolested by the government and others" (Warren and Brandeis 1890, p. 2). There are several constitutional premises for this right, though the right to privacy is never mentioned specifically in the U.S. Constitution. Some of the first American cases involving the right to privacy were based on the provisions of the Fourth Amendment to the Bill of Rights, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and the Fifth Amendment right against self-incrimination. Those amendments protected Americans against the kinds of abuses previously practiced by the British government to obtain information.
Olmstead v. United States, a U.S. Supreme Court case involving the conviction of bootleggers that resulted partly from evidence gathered by tapping telephone conversations, entailed a determination of the rights guaranteed by the Fourth Amendment. Although the Court held that government phone tapping was not a violation of the Fourth Amendment, it declared that the rights protected in the Fourth and Fifth amendments of the U.S. Constitution applied "to 'all invasions on the privacies of life.' No exact definition of the term has been found, but obviously it is a comprehensive term and surely includes the right to be left alone." In noting the capabilities of developing technologies, the dissenting Justice Brandeis asked, "Can it be that the Constitution affords no protection against such invasions of individual security?" (Olmstead v. United States 277 U.S. 438 ).
Later cases proliferated the constitutional bases of a right to privacy. The First, Fourth, Fifth, and Ninth amendments and particularly the Fourteenth Amendment have been interpreted as extending a right to personal privacy. The Fourteenth Amendment provides in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws." Like the Fourth Amendment, the Fourteenth Amendment does not establish a specific right to privacy, but it suggests a right to live without undue governmental interference.
CONTEMPORARY LEGAL CASES
Since the 1960s many landmark Supreme Court cases defining the right to privacy have focused on governmental regulation of sexual, marital, and reproductive practices. Griswold v. Connecticut, 381 U.S. 479 (1965), determined that there is a right to privacy in marital relationships. Eisenstad v. Baird, 405 U.S. 438 (1972), protected a right to privacy in individual decisions by the unmarried to use contraception. Roe v. Wade, 410 U.S. 113 (1973), guarded a woman's right to privacy with respect to pregnancy and its termination. Whalen v. Roe, 429 U.S. 589 (1977), suggested a right to privacy in the disclosure of personal information. In a long series of earlier cases, however, the Supreme Court also found that the rights protected are only those that can be considered "fundamental" or "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319, 235 ). By imposing a standard of fundamentalism or implicitness on the privacy rights protected by the Constitution, the courts for a time were able to prevent the extension of any right to privacy to issues of personal sexual conduct.
A series of challenges to state laws that regulated private sexual behavior continued the process of the delineation of a right to privacy. In 1986 Michael Hardwick, who had been arrested under a Georgia statute that made consensual adult sodomy in the home a misdemeanor, challenged the constitutionality of that statute, claiming that private sexual practices are part of the fundamental rights protected by the right to privacy implied by the Fourteenth Amendment. Although the acts took place in the home and although sexual relations are an intrinsic part of the private intimate relations individuals may have with others, the court found that the Fourteenth Amendment "does not confer any fundamental right on homosexuals to engage in acts of consensual sodomy" (Bowers v. Hardwick, 478 U.S. p. 186). By refusing to include sexual privacy as a fundamental right, the court was able to exclude sexual acts from constitutional protection under any formulation of a right to privacy.
The decision in the Bowers case was reversed in 2003 in Lawrence v. Texas, 539 U.S. 123. As in the Bowers case, homosexuals were arrested for engaging in consensual homosexual behavior in their home, but this time the court found that the "convictions of two adults for consensual sexual intimacy in home … violate[d] adults' due process liberty and privacy interests." The court found further that "the state could not demean the adults' existence or control their destiny by making their private sexual conduct a crime, as the adults' right to liberty under the due process clause gave them the full right to engage in their conduct without intervention of the government" (Lawrence v. Texas, 539 U.S. 123 ).
Although Lawrence made it clear that private sexual conduct is a fundamental right protected by the implied right to privacy in the Fourteenth Amendment, courts still refused to recognize a fundamental right to sexual privacy. Constitutional protection for all private sexual conduct was still unclear at the time of Lawrence (i.e., 2003). In Williams v. Alabama, 378 F.3d 1232 (2004), the Federal Appeals Court for the Eleventh Circuit determined that there is no fundamental right to sexual privacy, that matters of personal autonomy and privacy sufficiently "fundamental" to be protected under the Fourteenth Amendment are fundamental "not simply because they implicate deeply personal and private considerations, but because they are 'deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed'" (Elimelekh 2006, p. 261). The plaintiff in the Williams case had challenged an Alabama statute prohibiting the sale of sex toys, but the appeals court decided that the state could limit such commerce not only because it was not a constitutionally protected right but also because states can restrict the "sale of sex" as part of antiobscenity legislation.
FUTURE EVOLUTION OF THE RIGHT TO PRIVACY
Because the question of how fundamental specific private practices may be is often a question of contemporary values and ideologies and because the right to privacy is not guaranteed explicitly in the Constitution, the evolution of the right to privacy will continue. At the start of the twenty-first century individuals' rights to their own credit, shopping, and other information are assailed by computer, Web, and global positioning technologies that can track their purchases and expenditures and determine what they read, where they go, and what their medical histories are. Ideas about what may constitute personal information and what aspects of that information may be kept private are likely to occupy the courts in the future.
Alderman, Ellen, and Caroline Kennedy. 1995. The Right to Privacy. New York: Knopf.
Elimilekh, Shelley. 2006. "Note: The Constitutional Validity of Circuit Court Opinions Limiting the American Right to Sexual Privacy." Cardozo Law School Arts and Entertainment Law Journal 24: 261-296.
Etzioni, Amitai. 1999. The Limits of Privacy. New York: Basic Books.
Solove, Daniel J. 2004. The Digital Person: Technology and Privacy in the Information Age. New York: New York University Press.
Warren, Samuel, and Louis Brandeis. 1890. "The Right to Privacy." Harvard Law Review 4 (5): 193.
Concern over personal privacy has risen as a result of two areas of development in computing and related technologies. First, databases used as surveillance tools for gathering, storing, and disseminating personal information have stirred fears that privacy is being eroded. This type of concern for privacy is known as information privacy. Second, vastly expanded communications abilities, including electronic mail and wireless communications networks, have raised questions about the appropriate degree of privacy for these new forms of communications. This type of concern for privacy is known as communications privacy. This article will focus mainly on information privacy.
The practice of collecting, recording, and storing personal data began long before the advent of computers. For example, the Domesday Book was a written record of a census and survey of English landowners and their property made by the order of William the Conqueror in 1085. However, computers greatly expanded the capacity and ease of data collection. This led to further uses of personal information and the need to collect more data. The U.S. government was among the first to take advantage of such technology. A variety of government functions such as taxation, social welfare, crime prevention, national security, and immigration greatly rely on information about citizens. As such, they require efficient communications, exchange, and access to information. Also, the government was a leader in the use of computerized databases because it could afford the computing power, which was initially very expensive and required expert management.
An example of a government computer database is the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC) database. Established in 1967, NCIC allows law enforcement agencies around the country to enter and share information in order to catch criminals. Although the NCIC has been praised by police officers, it has been criticized by privacy advocates and civil libertarians. They argue that the uncontrolled entry and use of data in the system, and the ease of access by both law enforcement agencies as well as non-criminal justice agencies, provide many opportunities for abuse of police power and privacy, as well as errors in content.
Besides power abuse and privacy invasion, other objections to government databases include: 1) that people whose records are accessed are not informed; 2) that the traditional presumption of innocence is replaced by a presumption of guilt if government agencies can search through huge amounts of information to find people who seem suspicious for any reason; and 3) that the Fourth Amendment, which requires the government to have probable cause or a warrant to search and seize materials from homes and businesses, is being challenged since the government needs neither criteria to search government-created computerized databases.
With the decrease in cost and size of computer equipment, and the increase in the amount of mass-produced consumer software including powerful database programs, a new demand for personal databases emerged from a different sector of society, namely the private sector. In an age where micromarketing is rapidly becoming the norm, the value of information increases as decision-makers find new ways to use data for strategic advantage. Companies must store and share information about individuals before conducting telemarketing campaigns or selected mailings.
The following are some examples of how the private sector is using consumer data stored in their databases for marketing purposes. American Express mines 500 billion bytes of data on how customers have spent more than $350 billion since 1991. The company then sends discount coupons and special promotions for the specific stores where customers shop. Blockbuster Entertainment Corporation uses video rental histories to generate specialized lists of recommended movies that are mailed to customers. Long-distance telephone companies use lists of subscribers to foreign-language newspapers to find potential customers for special telephone service deals. Once potential customers have been identified, the companies mail advertisements to them in the customer's native language.
One objection concerning the collection and use of such consumer data is that, in many cases, consumers are not aware of this activity. Therefore, the consumer has no opportunity to agree or disagree to the use of this information. The second grievance lies in secondary use—the use of information for a purpose other than originally intended. Most people do not object when businesses use in-house lists to send advertisements or special offers to their own customers. However, many people do mind if information collected by one business or organization is shared with or sold to another without their knowledge or consent.
Computer databases can undoubtedly help both businesses and consumers, but distribution, leakage, and various specific uses of the information by corporations or government agencies can have detrimental effects. The question is, how much risk are we willing to accept in exchange for convenience and the availability of useful information? Also, how can we reduce the risks while still receiving the benefits?
Other suggested means include establishing a privacy commission to oversee privacy protection at the state and federal levels, such as exists in Canada. Another possibility is to invest individuals with property rights over personal information, thereby shifting the burden from the individual to prove why he or she considers the use of the information undesirable, to the collectors and disseminators, who would need to prove that their actions neither harm nor violate the individual's privacy. These remedies may come about if the public voices its concerns to the authorities. As noted in The Intruders: The Invasion of Privacy by Government and Industry, Sen. Edward Long (R-Mississippi) once pointed out: "Privacy is necessary to the development of a free and independent people. To preserve this privacy, our national lethargy and lack of knowledge must be countered." He added: "People must be made to realize that, little by little, they are losing their right to privacy. Once they become aware of this, I think they will shake off their apathy and demand action. Then, and only then, will we get strong legislation to protect a reasonable amount of our right to be left alone."
Communications Privacy Organizations and Publications
The following organizations and publications deal extensively with information and communications privacy.
- American Civil Liberties Union <www.aclu.org>
- Center for Democracy and Technology <www.cdt.org>
- Electronic Frontier Foundation <www.eff.org>
- Electronic Privacy Information Center <www.epic.org>
- Internet Society <www.isoc.org>
- Privacy and American Business <www.pandab.org>
- The Privacy Rights Clearinghouse <www.privacyrights.org>
- Privacy Forum, a moderated listserv <www.vortex.com/privacy.html>
- Privacy Journal <townonline.com/privacyjournal>
- Privacy Times <www.privacytimes.com>.
see also Security.
Joyce H-S Li
Baase, Sara. A Gift of Fire: Social, Legal, and Ethical Issues in Computing. Upper Saddle River, NJ: Prentice Hall, 1997.
Branscomb, Anne Wells. Who Owns Information? From Privacy to Public Access. New York: Basic Books, 1993.
Burnham, David. The Rise of the Computer State. New York: Random House, 1983.
Cavoukian, Ann, and Don Tapscott. Who Knows: Safeguarding Your Privacy in a Networked World. New York: McGraw-Hill, 1997.
Johnson, Deborah G., and Helen Nissenbaum, eds. Computers, Ethics and Social Values. Upper Saddle River, NJ: Prentice Hall, 1995.
Kling, Rob, ed. Computerization and Controversy: Value Conflicts and Social Choices, 2nd ed. San Diego, CA: Academic Press, 1996.
Rosenberg, Richard S. The Social Impact of Computers, 2nd ed. San Diego, CA: Academic Press, 1997.
Schoeman, Ferdinand David, ed. Philosophical Dimensions of Privacy: An Anthology. New York: Cambridge University Press, 1984.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1968.
PRIVACY. The notion of a right to have certain parts of one's life, one's home, and one's property protected against invasion by other citizens or by government is as old as America itself. Four of the first five amendments to the Constitution of the United States protect some aspect of the privacy of Americans, including the First Amendment's right to association, the Third Amendment's prohibition against the government quartering soldiers in private homes, the Fourth Amendment's protection against unreasonable searches and seizures, and the Fifth Amendment's protection from self-incrimination.
The specific idea of what was later recognized as the "right to privacy" began with British common law notions, such as "a man's home is his castle" and the right "to be let (or left) alone." A number of early U.S. Supreme Court decisions recognized these traditional rights to be free of unwanted personal or governmental invasions. Responding to some of the invasive journalistic practices of the day, a future justice of the Supreme Court of the United States, Louis D. Brandeis, and his coauthor and law partner, Samuel D. Warren, are credited with coining the phrase "the right to privacy" in their 1890 article of that name in the Harvard Law Review. When Brandeis was elevated to the Supreme Court, he took the opportunity in that Court's first wiretapping case to reiterate his strongly held views on the right to privacy. That 1928 case, Olmstead v. United States, involved the attempt by the federal government to tap the phone of a person without first obtaining a warrant. The majority of the Court ruled that this was not a violation of the Constitution. In his dissenting opinion, however, Brandeis said those who wrote and ratified the Constitution and the Bill of Rights did recognize the existence of a right to privacy:
The makers of our Constitution … conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth [and Fifth] Amendment[s].
But Brandeis's view remained in the minority on the Supreme Court until the 1965 case of Griswold v. Connecticut. That case involved the constitutionality of an 1879 Connecticut law that banned the use of contraceptives, even by married couples. A seven to two majority opinion, vindicating Brandeis's view, held that the Constitution does contain a right to privacy and that the right is a fundamental one, even if that right does not appear in so many words anywhere in the text. While a majority of justices agreed that such a right was protected by the Constitution and its amendments, they disagreed over where in the text of the Constitution that right is found. Justice William O. Douglas's majority opinion claimed that various parts of the Bill of Rights have "penumbras" formed by "emanations" from specifically granted guarantees in the text. This kind of argument did not sit well with many other members of the Supreme Court then, and as the Court became more literal and conservative in subsequent years, more and more justices expressed their skepticism over the existence of such a right to privacy.
The announcement of the existence of a constitutional right to privacy resonated through American law, politics, and society in the years following the Supreme Court's 1965 decision in Griswold. This right to privacy was at the foundation of the Court's landmark Roe v. Wade decision in 1973, which brought a woman's right to have an abortion under the rubric of the right to privacy. William H. Rehnquist, then an associate justice of the Court, dissented from Roe v. Wade, arguing that abortion does not involve the issue of privacy. As chief justice Rehnquist has generally continued to argue against the existence of this constitutional right.
Other areas of American life have been impacted by this debate over the existence of the right to privacy. In 1967 in the case of Katz v. United States the Supreme Court overturned its 1928 ruling in Olmstead. In Katz the Court ruled that someone speaking on the phone, even on a public pay phone, has a reasonable expectation of privacy and that the government must secure a warrant prior to eavesdropping on that conversation. In 1969 the Supreme Court ruled in Stanley v. Georgia that the mere possession of obscene materials in the privacy of one's home could not be interfered with by government official. However, in the 1986 case of Bowers v. Hardwick a sharply divided Supreme Court ruled that the right to privacy did not include the right to engage in homosexual sodomy in the privacy of one's home.
Certain professional and personal relationships are considered private and thus protected from various kinds of intrusion. The relationships between doctor and patient and between attorney and client are examples of professional relationships given special privacy protections under the law. Student grades and recommendations are also protected by various federal and state laws. In addition the spousal relationship is considered by many jurisdictions to be a generally private relationship, and husbands and wives are of ten protected from being compelled to testify against each other.
The advent of computers brought with it a new range of privacy concerns. Prior to computers, to intercept a piece of mail from one person to another, an actual letter had to be seized and then opened. In the information age intercepting an electronic mail message requires no physical interference but merely the accessing of data files in which E-mail is sent and stored. Consequently privacy invasions became not only easier but also less detectable. Cell phone calls are less secure than wire-based phone communications and more easily intercepted. Other privacy issues include the privacy of what an employee does on a workplace computer, the proliferation of video surveillance cameras in public and private spaces, access to personal information contained in electronic databases, and the "identity theft" that sometimes results from the stealing of such electronically stored personal information.
As communication occurs less in face-to-face exchanges and more in technological data exchange mediums, the opportunities for individuals and governments to eavesdrop on those virtual conversations increase. For example, in response to the terrorist attacks of 11 September 2001, the federal government passed legislation that made it easier for law enforcement officials to have access to previously private data and communication, even between lawyer and client. Privacy in the information age promises to be an important and contentious topic.
Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999.
McLean, Deckle. Privacy and Its Invasion. Westport, Conn.: Praeger, 1995.
Rosen, Jeffrey. The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House, 2000.
See alsoBill of Rights in U.S. Constitution .