The Value of Privacy

Beate Rossler, Beate Roessler

• Publisher: Polity
• Year: 2015
• Print ISBN: 9780745631110, 9780745631103
• eBook ISBN: 9780745694511
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

This new book by Beate Rössler is a work of real quality and originality on an extremely topical issue: the issue of privacy and the relations between the private and the public.

Rössler investigates the reasons why we value privacy and why we ought to value it. In the context of modern, liberal societies, Rössler develops a theory of the private which links privacy and autonomy in a constitutive way: privacy is a necessary condition to lead an autonomous life. The book develops a theory of freedom and autonomy which sees the ability to pose the "practical question" of how one wants to live, of what a person strives to be, at the centre of the modern idea of autonomy.

The question of privacy is emerging as an increasingly important topic in social and political theory and is central to many current debates in law, the media and politics. The Value of Privacy will be widely recognised to be a classic contribution to the subject.

1
Introduction

The question of whom I live with is a private affair, and so is what I think about my colleagues at work. My diary is private, as is part of my correspondence. It is a private matter how I dress, which church I go to, and what profession I choose. My house and home is my private sphere, in other words my dwelling too. The question of where I send my child to school is a private one, and when I’m sitting with a friend in a cafe, though this may be a public place, it is a private affair.

This is an incomplete list of the things we describe using the complex predicate ‘private’. Yet ‘private’ is not only a complex predicate, but also one which, depending on the context in which it is used, may have a directly evaluative or prescriptive character. This comes to light not only when we rebuff someone with the remark that something is none of their business or is a private matter, but also in complaints to the effect that privacy is under threat from the new information technologies, from the latest possibilities for eavesdropping on people, watching them, filming them, etc. Privacy is here typically referred to as something worth protecting that should be normatively respected. Even complaints about the ‘blurring of boundaries’ between the public and private spheres through the ‘privatization’ of the public appeal to an implicit evaluation not only of the public sphere but also of privacy as a realm worthy of protection.

What interests me in this book are the fundamental questions: why do we value privacy? And why should we value privacy? What I try to show is that we value privacy for the sake of our autonomy. In liberal societies, privacy has the function of permitting and protecting an autonomous life.

When I speak of privacy and the protection of privacy, etc., in what follows, what I mean by this is the protection of the privacy of individual persons. I am concerned, in other words, with a theory of individual privacy. What is private and what is worth protecting about the privacy of private enterprise or the privacy of institutions (such as the Catholic Church) will here at most play only a marginal role. And when I talk of privacy in what follows, I am not simultaneously referring to the public sphere. I shall be treating the other side of this ‘great dichotomy’ as a ‘residual category’ without any more precise structure, though where necessary I shall go into the interplay and interaction of the private and the public.¹

This introductory chapter is intended to provide an overview of the subject, its background, and some of the questions involved. By the end of this introduction it should be clear what the ensuing path looks like and where it will be leading.

1 Discourses on privacy

Theories of privacy – theories of the change it has undergone, the threat it faces, the function it fulfils – are to be found in widely differing and often wholly separate discourses, each approaching the problem from a different angle, referring to different histories of privacy, and focusing on different aspects of the term’s meaning. Here I intend to give only a brief sketch of these discourses. One way or another, they will come up in greater detail in the course of the following chapters.

Privacy is a prominent topic in sociological and philosophical theories of ‘the public sphere. It is here understood both as the realm of intimacy and the sphere traditionally assigned to the family household.² This approach also includes such theories as the one set forth by Richard Sennett, since with his concept of the ‘tyranny of intimacy’ he is more interested in a theory of public life and its decline (through the incursion of intimacy) than in a normative theory of privacy³ In such theories of the public sphere, privacy is by and large thought of merely as a residual category – designated ‘the private home’ or the ‘realm of intimacy’ and not further differentiated – since the focus is on the development and modernization of the public realm and its present-day structures and functions. Privacy is also made a theme in this way in theories of civilization, such as the work of Norbert Elias, where civilizing processes affect the privatization of what were formerly public social practices and where these processes come to bear upon the regulation of private life itself.⁴ In this first discourse, the spotlight is thus above all on changes in the boundary between the private and the public and transformations in the public or domestic realm, on civilizing processes as processes of privatization, and modernizing processes as processes of de-privatization.⁵ Also included are the sorts of diagnostic approaches (not all of them sociological in orientation) that are concerned in general with a diagnosis of the present in terms of the private sphere (most often its decline) and identify the loss of clear dividing lines, the blurring of boundaries between private and public, as a pathology of late modern societies. Here too, however, there is in the main no direct interest in a normative theory of privacy, which is instead taken as a starting-point for cultural criticism of a more general nature.⁶

Likewise primarily sociological in orientation, a further sort of discourse focuses on privacy on its own account, and in particular the realm of the ‘private family’. This type of discourse is interested in the changes undergone by the family as the traditional stronghold of private life.⁷ Privacy is here considered in its classic sense as the realm of domestic life, of the family and of intimacy, a realm that in spite of its modifications, functional shifts, spatial reconfigurations, and the recasting of roles, has been preserved in its fundamental significance from antiquity to the present day.⁸

These thematic treatments of privacy have been greatly influenced by a form of discourse that, though also historical or diagnostic in orientation, is predominantly critical, that is the discourse of feminist theory.⁹ This theoretical current has influenced the interpretations and conceptualizations of privacy in contemporary social debates more than any other. A political and philosophical discussion of the problematic nature of the public and the private has been going on in feminist theory ever since the 1960s, and it is here, much more than in the other discourses I have mentioned, that the relations between the two realms or spheres have been reflected upon. The diverse and heterogeneous feminist critique of the traditional distinction between private and public spheres has become interesting and influential in particular because it highlights deep-rooted ambivalences in the differentiation between the public and the private realm, as well as the repressive nature of this split. The history of private life is here told in a different way from the discourses referred to above, namely as the history of the banishment of certain persons and certain themes to the realm of privacy, as the history of an unjust social system and as the history of the emancipation from this.¹⁰

Quite independently of these challenges to the notion of privacy, the latest processes of modernization have seen the emergence of a new sort of discourse, one concerned with privacy of information. Its origins can be traced back to the end of the nineteenth century, when the spread of the yellow press in conjunction with the popularization of photography for the first time turned informational privacy, particularly of American public figures, into a legal and theoretical theme.¹¹ Yet it is only since the 1950s and 1960s that it has become a major public issue, as advancements in computer technology have encouraged an increased interest on the part of government bureaucracies in gathering and processing information. Examples of this sort of discourse range from the first major studies by Edward Shils and Alan Westin through to the more recent scenarios of a panoptic society and its dangers.¹²

A further discourse to be mentioned here is the legal discourse concerning the right to privacy, which responds to these other approaches to the subject in various ways but nonetheless remains independent of them. In the United States, these discussions of the right to privacy have become influential in legal theory ever since the end of the nineteenth century, when the first attempts were made by American jurisprudence to derive such a right from the Constitution.¹³ In Germany, by contrast, discussions of the right to privacy often take place under a different rubric and in a different context: the inviolability of the home and the protection of personhood.¹⁴ There are clear cultural differences in the legislation here, implying a culturally different coding of the interest in privacy. I shall return to this point in greater detail shortly.

Finally, there is a philosophical discourse on the subject of privacy. Various positions from feminist theory, theories of the public sphere and the definitions of informational privacy converge in this discourse, which since the 1960s has come to produce an independent body of philosophical literature centred upon a precise delineation of the definition and function of privacy¹⁵ Drawing in a variety of ways on the other discourses on privacy, this literature has been interested first and foremost in the conceptual assumptions that these other discourses tacitly take for granted, seeking to use precise definitions to establish in precise terms the functions of privacy within liberal societies. A further branch of this philosophical discourse, one that is nonetheless largely independent of these analyses, can be made out in the various liberal conceptualizations of privacy that can be traced through history from Thomas Hobbes via John Stuart Mill to Richard Rorty.¹⁶ These approaches all connect the concept of privacy in functional terms with the concept of freedom, but often remain under-determined with regard to the exact meaning of privacy and its specific relation to freedom.¹⁷

This brief survey of the various treatments of privacy shows that recent interest in reconceptualizing it is due to three distinct historical processes: first, the intrusion of intimacy into the public realm through previously private themes that have turned public, as well as shifts in notions of individuality and authenticity; secondly, radical changes in the relation between the sexes and the concomitant reconfiguration of the private sphere; and thirdly, recent developments in information technologies capable of threatening the protection of personal privacy in completely new ways. This survey also shows that there is not one history of privacy, and that the history of privacy may include more than what counts as ‘private’ at any particular time.¹⁸ Finally, it brings to light the conventional nature of the separation between public and private life. Of course, there are many points of overlap between these diverse discourses and theoretical approaches, especially where feminist criticism, the sociological or diagnostic approach and theories of the public sphere are concerned. The treatment of informational privacy, however, almost always runs parallel to and independent of these other discourses. In the following chapters, I shall refer to all these discourses on privacy in varying measure, for in attempting a theory of privacy and its value I am concerned with as many as possible, if not all, of the problematic aspects of the term.

2 Privacy: conceptual clarifications

These various discourses concerned with the concept of privacy all presuppose a certain meaning of the concept, albeit for the most part not explicitly. I should therefore like to devote some attention to a more precise clarification of the concept, for only once the meaning of the concept and its definition are resolved can the function and value of privacy be discussed in more precise terms. First of all, therefore, I shall try to delineate the meaning of the concept of privacy in its full range. Following this, I want briefly to discuss some definitions that for the most part refer to a particular aspect of the meaning.¹⁹ I shall then propose a definition that seeks to do justice to the range of the concept’s meaning. Against this background I then intend to take the further step of briefly presenting the different normative suggestions concerning the function and value of privacy and sketching the idea of the value of privacy that will be elucidated in the following chapters.

Let us return once more to the semantics of the word ‘private’.²⁰ For a start, ‘private’ should be distinguished from ‘intimate’. What is intimate is also private, but not vice versa. ‘Intimacy’ has mainly erotic or sexual connotations, connotations of proximity and vulnerability that also – but not only – have to do with exposure of one’s own body. It forms a nucleus of what one calls and wants to keep private, but for this very reason is not identical with privacy, which incorporates more than just the realm of intimacy. Secondly, ‘private’ must be distinguished from ‘secret’. What is private can be secret, but is not necessarily so, as in the case, for example, of the thoroughly public private matter of how a person dresses. What is secret can be private, but is not necessarily so, as when, for example, one speaks of state secrets.²¹ In this case, we thus find semantic overlaps that occur when privacy is dependent upon something being completely hidden or concealed, in other words upon a secret, as with secret diaries or also secret ballots.²² Indeed, secrecy can even help clarify the semantic contrast between private and public, for everything that is not private is public, but what is public can still be secret, as when political meetings are secret but not private. Here, of course, the different aspects of the meaning of ‘public’ in the sense of ‘concerning everybody’ and ‘accessible to everybody’ also have a part to play.²³

Let us now turn in more detail to the semantic field of privacy itself. The predicate ‘private’, as we have already seen above, is a complex one, which we ascribe to actions, situations, states of mind, places and objects.²⁴ Witness, once again, the diversity of the examples named at the outset.²⁵ In everyday language, there are two distinct semantic models underlying the various uses of ‘private’ and ‘public’. The first is an ‘onion’ model, allowing one to distinguish between different layers of privacy. The centre of the onion is the realm of personal or bodily intimacy and privacy (including one’s private diary, for example), as opposed to which everything else is regarded as ‘public’. Then comes a second layer comprising the classic realm of privacy, that is the family (or other intimate relationships). As opposed to the family, the outside world of society and the state then constitutes the public realm. If we go a stage further, then it is society at large – the realm of economic structures or public civil society – that counts as ‘private’ with respect to intervention by the state, thus forming yet another realm of privacy in the face of the public realm of the state and its possible interference.²⁶ The second model in everyday usage lies at right angles to the first, for this time the term ‘private’ is predicated of actions or decisions that we may take or carry out no matter where we happen to be. Going to church is thus just as much a private matter as comments that I may make in public but as a private person. In this second sense, the concept of privacy describes a prot...

Table of contents

• Cover
• Contents
• Title Page
• Copyright
• Acknowledgements
• 1 Introduction
• 2 Equal Freedom, Equal Privacy: On the Critique of the Liberal Tradition
• 3 Freedom, Privacy and Autonomy
• The Three Dimensions of Privacy
• 4 Decisional Privacy: Scope for Action and Decisions
• 5 Informational Privacy: Limits to Knowledge
• 6 Local Privacy: The Private Home
• 7 Interfaces: Public and Private
• Notes
• References
• Index