Law and the Philosophy of Privacy

Janice Richardson

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781134097586
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Situating privacy within the context of political philosophy, this book highlights the way in which struggles concerning the meaning of privacy have always been political. Different conceptions of privacy are here shown to involve diverse assumptions about ontology: our conceptions of self, culture, society and communication. Privacy theory's debt to Locke, Kant or Mill, and what is at stake in their conceptual frameworks, is examined. The extent to which the term "privacy" has been used to the detriment of - and to create - weaker parties in marriage, in the workplace and now as citizens (or non-citizens) and consumers, as well as employees, is also demonstrated. In contrast, Janice Richardson pursues the relevance of Floridi's philosophy of information, before turning to her application of Spinoza, the philosopher of communication, in order to outline a more useful framework through which to think about privacy today. The book will be of interest to those working in political philosophy, feminist philosophy, law, the philosophy of information, sociology, media, and cultural studies.

1 Defining privacy

The contemporary ‘liberal canon’ and its debt to Locke, Kant and Mill

DOI: 10.4324/9780203516133-2

Introduction: ‘the liberal canon’

I start by considering some of the debates within the canon of privacy, not because I think that they represent universally valid insights but because they achieve the more modest aim of reflecting and crystallising the beliefs of a certain culture, mainly US dominated. I aim to illustrate how a selection of canonical privacy theorists can be situated within modern liberal political theory, drawing from either Locke, Kant or Mill. In later chapters I consider their conceptual frameworks in detail to show what is at stake in drawing from this liberal tradition and to examine other alternatives.

Some of what I am classifying as belonging to the canon is rather old, given the speed at which technology is changing (and the impact of the law and economics movement, if the focus is the US). Nevertheless, these debates are still alive and are useful in that they illustrate some of the unspoken political presumptions on which definitions were based from the 1980s onwards. Judith Jarvis Thomson’s work, with which I start, is particularly interesting – not only because she sets the scene for much debate as to whether there is an independent moral right to privacy – but also because her examples are so telling. As I will explain, the sexual objectification and potential for violence that appear in her examples as peripheral to her argument, can be seen to undermine her central claim that privacy rights can be reduced to other rights, in particular those of property rights.

After starting with Thomson, I then compare her work with Charles Fried, who is viewed as her opponent in that he argues that privacy is irreducible to other moral rights. Despite this overt opposition, his conception of self is very close to that of Thomson. Both Thomson and Fried view privacy as akin to property, with human beings as owners of their abilities. This is a position that owes a debt to John Locke, whose (more complex) conceptual framework I consider in detail in Chapter 4. I draw out this point by comparing Fried’s arguments with those of Kant, who, in the Metaphysics of Morals rejects the idea that any parts of a person can be treated as property:

[A]cquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity.

(Kant 1996, [278] §25, 97)

I then compare other canonical theorists of privacy – Ferdinand Schoeman and Edward Bloustein – who draw from (or are in conversation with) Kant. I finish by examining the arguments of two contemporary theorists – Julie Cohen and Alex Pentland – who, in very different ways, are in conversation with Mill.

Thomson and Fried: appropriations of Locke’s “property in the person”

It is now part of contemporary life – albeit subject to public disquiet – that there is a market in personal data. There may be pragmatic reasons for creating ways in which data is treated as the property of the “data subject” to which it pertains as this may offer a way of allowing individuals greater control over their data (Pentland 2014). However, there are problems with this viewpoint theoretically that may undermine such an approach as a long term solution.

In this section, I will explain why the definition of privacy as a type of property fails to capture the importance of privacy and the way in which some private information is associated with “who we are”. Put simply: there is a moral, political and phenomenological difference between talking about “my car” and “my body” and the reference to “my information” is closer to “my body”; “a privacy breach is more easily comparable to a case of metaphorical abduction” (Floridi 2013, 50). The idea that we own parts of ourselves is common in our society and brings with it a number of disturbing aspects, such as our willingness to view ourselves as objects that can be manipulated, to be discussed in further detail in later Chapter 4 (on Locke) and Chapter 5 (on neo-liberal accounts of privacy in the “law and economics” movement). Floridi’s quotation will be discussed further in Chapter 6.

Intertwined with the idea of privacy as akin to negative freedom, the “right to be let alone”, was the use of private property as a bulwark against state intrusion. The liberal state could not properly interfere with the private property of citizens nor with what went on in the home; I will examine this in detail in Chapter 2. Again, this reference to private property is associated with the idea that parts of ourselves can be treated as if they were property and hence treated as alienable commodities. When we are viewed as having “property in the person”, as discussed by Locke in Chapter 5, ‘Of Property’, of the Two Treatises of Government, we are viewed as having a kind of ownership over ourselves that has been defined as: the rights that a slave owner has over slaves in a slave owning society (G. A. Cohen 1995). The willingness to view privacy in terms of property, examined in this chapter, should be understood against this background.

Thomson’s (1984) work provides a useful starting point because it represents a position in a debate to which many writers have responded. While her work has clear legal implications, Thomson focuses purely upon privacy rights as moral concepts. She argues that there is no point in attempting to find a definition of an underlying moral right to privacy – that is, some factor that all examples of invasions of privacy have in common – because these privacy rights are all derivative of other moral rights. The more basic moral rights are property rights or “rights of the person”, which are “analogous” to property rights.

I will trace Thomson’s arguments in detail as she builds upon a number of examples, which, I will argue, undercut her central claim. In a curious illustration of privacy rights as derivative of property rights, Thomson gives an example of a man who has a pornographic picture in his safe. He wants to prevent others from seeing it, not because he is ashamed to have it but because he does not wish to share it. Thomson suggests that perhaps the fact of others seeing it may drain it of its power to please but that it would be “pretty mingy of him to keep it permanently hidden so that nobody but him shall ever see it” if it were “good pornography” (Thomson 1975, 299). However, she claims, it would not be morally wrong for him to refuse because his private property rights over the pornographic picture entail the moral right to exclude others from seeing it.

The need to consider the person in the pornographic photograph, who is treated as a sexual object not a subject, is not merely peripheral to Thomson’s argument because it provides a counter-example to her claim. She argues that (assuming the man has not stolen the photograph) the owner’s property right in the photograph gives him complete moral rights over it. However, supposing that the pornography resulted from a surreptitious photograph to which the person in the photograph did not consent? Supposing it were “revenge porn”,¹ a naked photograph taken by an aggrieved lover, who gave the photograph to its current owner without obtaining the consent of the person photographed? Even supposing it were a picture of a current or past lover of the owner of the photograph, given with consent, the idea that it would be ‘mingy’ to not pass it round fails to recognise the moral right to privacy of the person in the picture. The property ownership of the photograph itself (against the person who wants to see it) may not be in dispute but there are unrecognised privacy rights of the person objectified in the picture that run counter to this property ownership in Thomson’s example. Within her own framework, Thomson may concede that there is a right not to be photographed naked without one’s consent. She would no doubt claim that this right is also “analogous” to a property right, as illustrated by the next example. Her reduction of privacyto property rights would fail to allow her to distinguish the pornographic from a less intimate photograph.

1 A phenomenon that has developed more recently but was already possible when Thomson was writing.

In summary, Thomson claims that, if someone were to try to see the pornographic picture (in this imaginative example, through the use of an x ray device to look into the safe where it is kept) then this action is morally wrong because it breaches the property rights that the owner holds over the picture. Nothing is added to this scenario, she argues, by evoking extra privacy rights. By analogy, Thomson then cites a number of possible scenarios in which there is interference with another’s body, including a curious example of someone sneaking into another’s bedroom while he is asleep and painting his elbows green. Crucially, for Thomson, the reason why it is wrong to do so is because the (now partially green) aggrieved party has a right not to have anyone interfere with his/her body; that this is akin to the property right that she has just described regarding the pornographic picture. As Rachels describes Thomson’s position:

Thomson understands these rights as analogous to property rights. The idea is that our bodies are ours and that we have the same rights with respect to them that we have with respect to our possessions.

(Rachels 1975, 331–332)

Just as the man in Thomson’s example has a right not to have a picture that he owns peered at, so he has rights over his body. Again, Thomson argues that, although both examples raise privacy issues, they do not add anything to the moral claim that this intrusion is a wrong. This is because, Thomson argues, privacy is a derivative concept that is already covered by other moral rights.

There are a number of problems with Thomson’s approach. Again, while it is easy to dismiss the point as peripheral to her aims, it is worth starting by considering the outlandish example. If I woke in the night to the sound of an intruder, assuming he is male, then my first thought would not be “Damn, is he going to paint my elbows green? Why am I being stalked by a Dadaist?” My worry would be whether I was to be subject to sexual violence. I do not believe this to be an aberrant reaction by women in our culture. Men may not feel threatened in the same way but would certainly be threatened by the risk of some physical harm. Again, this is relevant to Thomson’s central claim that privacy rights are analogous to “rights over the body”; that they are reduced to extended property rights. Property rights do not capture the concern we all have regarding bodily integrity.²

2 Even Richard Posner, whose neo-liberal analysis is discussed in Chapter 5, has admitted that his characterisation of rape as theft “will strike many readers as a limitation on the usefulness of that theory” (Radin 1996, 86 fn. 22; citing Posner 1992, 218), though note that Posner does not say that his theory is false.

Thomson could argue that privacy rights are otiose because such sexual or other violence would be covered by other rights (i.e. the right not to be subject to such violence). Contra Thomson, overlapping rights do not make privacy rights superfluous if they capture an important human experience that is otherwise elided. The a priori collapsing of privacy rights into property right would also have the effect of closing down any discussion of areas of life that later develop as privacy problems, as has been seen by technological developments or that emerge as a result of changes in social mores. I can employ an example of an understanding of privacy that, like Thomson’s examples, is not limited to the exchange of information. Such a reduction of privacy rights to other rights would obscure the ironic example of women’s position in the home which has been highlighted by feminists. Historically, the “private sphere” was not private for women. They lacked “a room of one’s own” and were, in law, viewed as being sexually available to their husbands at any time. Rape within marriage is not usually viewed as a privacy issue and yet fits within definitions of privacy that work by setting boundaries regarding intimacy, to be discussed in the next chapter.

Scanlon presciently makes a broader point that covers this example when he states:

The foundations of privacy become a matter of practical concern when we are faced with open questions that are not resolved by our existing conventions. Such questions may be posed, for example, by the development of new technology, or by changes in social habits or relative values which present new conflicts or make our present conventions no longer seem reasonable.

(Scanlon 1975, 321–322)

Even if there is an overlap between privacy and other rights, it does not follow that privacy is derived from these and is otiose. It could be that these other rights derive from privacy or that they cover different ground. As I will discuss with regard to Charles Fried below and lat...