Privacy in the Republic

Andrew Roberts

• Verlag: Routledge India
• Jahr: 2022
• ISBN:
  9781000601732
• Auflage: 1
• Thema: Politique et relations internationales
• Thema: Politique

This book rethinks the idea of privacy. It argues that a satisfactory account of privacy should not limit itself to identifying why privacy might be valuable. It also needs to attend to the further question of how it can be secured in those circumstances in which it proves to be valuable. Drawing on republican ideas about the relationship between freedom and self-government, the book asserts that privacy is valuable, because it enables us to lead non-dominated lives. It prevents others from acquiring power to interfere in our choices – to remove options that would otherwise be available to us, and to manipulate our decision-making. It further examines the means through which citizens might exercise effective control over decisions and actions that affect their privacy and proposes a democratic theory of privacy.

With the emergence of the 'surveillance state, ' this volume will be indispensable for scholars, students, and researchers in political theory, political philosophy, law, and human and civil rights. It will be of particular interest to policymakers, lawyers, and human rights activists.

1Privacy and Political Theory

DOI: 10.4324/9781003079804-2

It might be thought that the first task of a book concerned with the concept of privacy should be some attempt to define it. But Julie Inness cautions that anyone who sets out to do this will be faced by a conceptual quagmire.¹ Privacy is a familiar concept, one that we consider to be important, yet attempts to define it have been fraught. One need not venture too far into the substantial body of literature on the subject to discover that there seems to be fundamental disagreement over how privacy should be defined, why it is valuable, and consequently, about the meaning and scope of a right to privacy.² It has been claimed that just about the only point of broad agreement on privacy is that it is a ‘messy and complex subject.’³ Indeed, it has been said that the numerous attempts to define it have produced a debate that has often been ‘sterile and is ultimately futile.’⁴ It has been lamented that privacy is a value ‘so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings,’ that we might doubt whether there is any way of making sense of it.⁵

While few would reject the suggestion that privacy is an inherently valuable condition, most accounts of privacy focus on its instrumental value. Privacy is said to serve various ends. It has been claimed that privacy: is a pre-requisite for human flourishing and well-being;⁶ enables one to exercise dominion over a realm of intimate decisions;⁷ is a pre-condition of autonomous agency;⁸ is concerned primarily with the use and misuse of personal information;⁹ is integral to the proper functioning of a democracy;¹⁰ enables subjects to develop and determine, for themselves, the nature of their social relationships;¹¹ is essential for securing respect for human dignity;¹² and so on. I want to contribute to the existing literature on privacy by developing a republican account of the value of privacy and by considering how republican thinking might shape the way that we think about privacy issues. I hope that over the course of the chapters that follow, it will become evident that our anxieties about privacy are best explained by republican concerns about domination.

The array of ends that privacy has been said to serve appear to give some tractions to claims concerning a lack of conceptual clarity and coherence. In light of this, some might reasonably ask why we need a republican account of privacy. Surely, this will serve only to add to the problems that are said to beset this field of inquiry. It seems to me that such charges would be based on the false premise that the most compelling account of the value of privacy and the terms in which it ought to be defined can be found in the existing literature. If we were to accept such a view and embark on a quest to find it, it would soon become clear that many of the existing accounts are unsatisfactory and underdeveloped.

Beate Roessler has observed that in the most diverse accounts of privacy, there is a focus on some manifestations of the ideas of freedom and autonomy.¹³ She also claims that it is not possible to develop a satisfactory theory of privacy unless it is embedded in a theory of democracy, for the latter establishes how the boundary between the private and public spheres ought to be negotiated.¹⁴ I want to suggest in this chapter that if we take privacy to be an instrumental good, any attempt to define it will be inevitably influenced, to some greater or lesser extent, by a commitment to a comprehensive or basic set of fundamental moral and political values. However, while centuries of evolution in moral and political thoughts has resulted in some degree of conceptual clarity in various competing political and moral theories, it has not brought about consensus as to which interests and values should be included in any inventory of fundamental interests and values. There is no consensus as to how the question of priority ought to be resolved where such values appear to pull in opposite directions.

If we accept that the concept of privacy both serves and is shaped by the fundamental values of various moral and political doctrines, the conceptual disarray that is said to afflict privacy scholarship might be understood as a manifestation of disagreement at a more abstract level.¹⁵ This is to say neither that those who have contributed to the literature on privacy have articulated the general moral or political values that form the bedrock of the accounts of privacy that they have offered nor that they have always been conscious of any attachment to them. Relatively few attempts have been made to derive accounts of privacy in a top-down manner, from the core ideas of the various traditions of political thought. But any account will be shaped by an attachment to certain values. Though they may be lurking in the background, unidentified and unarticulated, these commitments are likely to be more or less consistent with, and capable of explanation by reference to, some form of comprehensive moral or political theory. This enterprise might not only reveal the source of much of the disagreement that exists over privacy but also provide us with a deeper understanding of some aspects of our intuition about privacy, and prompt us to re-evaluate others.

It is possible that some of these theories provide us with conceptual resources for a more compelling account of the value of privacy than those offered by others. My claim in this book is that the republican conception of freedom does just this. The explanation will unfold over the chapters that follow. But I want to begin, in this chapter, by illustrating how differing conceptions of privacy connect with the core ideas of various traditions of political thought, and how these ideas will shape the way in which we think about privacy and its value. Its role is to provide an outline of what the substantive inquiry undertaken in the chapters that follow entails. It both describes and justifies the methodology that will be used.

The first part of the chapter provides a broad and necessarily brief outline of the two dominant conceptions of privacy – one defining it in terms of inaccessibility per se and the other placing emphasis on control over access. In the second part of the chapter, I will suggest that we should think of privacy as a concept that is bounded on one side by abstract values and on the other side by decisions in concrete cases.¹⁶ We can develop an account of privacy by reasoning from the top-down, taking the abstract values as directives as to how privacy should be understood, or from the bottom-up, arriving at some sort of understanding of it through a process of inductive reasoning from decisions about privacy across a range circumstances.

I will argue that bottom-up approaches are unlikely to provide us with the kind of coherent account of privacy produced by top-down approaches that proceed from, and are guided by, abstract values. An account of privacy derived from a set of coherent fundamental values embodied in a comprehensive political theory ought to provide us with both the basis of a coherent account of privacy, and a set of criteria for assessing the value of privacy in any given context.¹⁷ There are values that are common to many of these theories – freedom, autonomy, and equality, for example – to which frequent reference is made in the privacy literature. But these references are seldom accompanied by any acknowledgement of the disagreement that exists as to how the concepts expressed in these values should be understood.

If there is conceptual disagreement about the ends that privacy is said to serve, we should not be surprised to find corresponding divergence in the way that privacy is conceptualised and its value understood. I will illustrate the point in the third section, taking the two conceptions of privacy identified in the first part of the chapter, and suggesting why libertarians, liberals, and communitarians might be drawn, for quite different reasons, to one or the other. These differences arise, because our view of privacy and its value will be shaped by our commitments to a more fundamental set of values that we believe to provide the proper foundation for the terms of social co-operation in a political community generally. This will lead us into consideration, over the next few chapters, of a substantive republican account of the value of privacy and how it can be secured; an account that provides a more coherent and compelling account of the value of privacy that can be derived from the central ideas of these other traditions of political thought.

I. Privacy as Inaccessibility per se, or Control Over Access?

Almost all attempts to define privacy might be described broadly, as either access-based or control-based conceptualisations. As the descriptors suggest, those who advance control-based definitions claim that privacy is a state of inaccessibility per se, so that we suffer a loss of privacy whenever others gain physical access to us, or to information about us.¹⁸ Those who offer control-based conceptualisations of privacy define it by reference to the control that we have over others’ access to us, and to information about us.¹⁹

(i) Privacy as a State of Inaccessibility

In an attempt to describe the nature and extent of the disagreement that exists in the literature on privacy, the distinction between access-based and control-based accounts constitutes only a starting point. Even among those who claim that privacy should be defined in terms of inaccessibility, there is disagreement over the aspects of individual’s life that ought to be encompassed by the concept of privacy. So, while we might distinguish accounts of privacy according to whether privacy is conceived as a state of inaccessibility per se, or as some form of control over such access, Inness suggests that we can further divide access-based accounts into two groups. The first comprises those who argue that privacy is a concept that relates only to information about an individual, and the second is a group that takes the view that privacy is concerned not only with informational access but also with other forms of access.²⁰

It is possible to make further sub-divisions. Among those who believe that privacy concerns informational access, there is disagreement over the quality of information that is encompassed by the concept of privacy. Inness herself believes that loss of privacy occurs only where another has access to intimate information about an individual.²¹ On this view, it would seem that there would be no loss of privacy where others take it upon themselves to disclose details of another’s salary, tax affairs, business strategies, or political affiliations to anyone willing to listen – nor would there be any interference with privacy in general, where employees were subject to covert surveillance in the workplace. According to Inness, there would be a loss of privacy where an individual published intimate letters sent to them by a former lover.²² But Parent, who claims that privacy is ‘the condition of not having undocumented personal knowledge [information] about one possessed by others,’ would presumably say that publication of the letters does not involve any loss of privacy, as publication in this case merely disseminates personal information that has been documented.²³ However, this conceptualisation of privacy has been criticised on the grounds that it fails to capture circumstances in which many people would ordinarily think that there has been an interference with priva...