A
THEORY OF THE NATURE
AND
VALUE OF PRIVACY
Jeffery
L. Johnson
Philosophy,
Politics, & Economics
Eastern
Oregon University
Public
Affairs Quarterly, Vol 6, No. 3, July 1992, pp. 271-88.
What is privacy? Why is it so important? These twin questions tend to focus much of
the philosophical literature on privacy.[1] They are crucial to the resolution of the
substantive moral, social, political and jurisprudential debates regarding
privacy. This paper briefly summarizes
an answer to the first question that I have discussed elsewhere.[2] Much work remains to be done, however, on
the second question.
The range of attitudes regarding
privacy in the constitutional context is nicely illustrated in the thoughts of
two great twentieth century justices. Justice Black, writing in dissent in Griswold
v. Connecticut, is almost dismissive.
I
like my privacy as much as the next one, but I am nevertheless compelled to
admit that government has the right to invade it unless prohibited by some
specific constitutional provision.
To be fair, we
must concede that much more is at issue here than simply the value of personal
privacy. Justice Black is concerned
with deep issues in constitutional and interpretive methodology -- one
continual embarrassment to defenders of the constitutional right to privacy is
the fact that the concept is never mentioned in the document. Still, the contrast in attitude toward
privacy is striking when compared to the thoughts of Justice Brandies, also
writing in dissent, less than forty years earlier in Olmstead v. United
States.
The
makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness. . . . They conferred, as against government, the right to
be let alone--the most comprehensive of rights and the right most valued by
civilized men.
Justice Brandeis surely engages in hyperbole. Lots of explicit constitutional rights ‑‑ voting, free expression, equal protection -- are more valued than personal privacy, even by "civilized" men and women. Many scholars and jurists would be in complete agreement, however, with the general sentiment. Personal privacy seems to fit in with the other social ideals enumerated in our nation's founding documents. Privacy is, indeed, a fundamental political value, or so I will argue. At the same time, it is undervalued in current popular and judicial attitudes. Part of the explanation for this apparent paradox is that it is not immediately clear why privacy is so valuable, at least when compared to political ideals like liberty, equality and justice. Equally responsible for the lack of consensus about the value of privacy is the fact that scholars are far from agreement as to the nature of privacy.
I. What Privacy Is
The following might be claimed as
violations of your personal and/or constitutional privacy. Your roommate goes through your desk, or
opens your mail, or listens in on your phone conversation without your
permission. A voyeur peeks in your
bedroom window. Your busybody neighbor
lectures you on why you should attend church on Sunday morning rather than play
golf. Your employer forces you to
submit to a polygraph examination or a random urinalysis. Rude teenagers disturb your picnic in the
park by playing rock music at an excessive volume. A credit agency gains computer access to your credit card
accounts. The police search your home
without a warrant. Your blood is tested
for HIV when you are admitted to the hospital.
The state makes it a crime to secure abortions in hospitals that sit on
state owned land. You are arrested for
engaging in oral sex with another consenting adult. The state refuses to honor your previously expressed desire not
to be sustained in a vegetative state.
It is unrealistic to suppose that all
of these issues can be captured by brief, elegant, necessary and sufficient
condition definitions of privacy. Given
this fact, many theorists have opted for semantic legislation. They have stipulated definitions that handle
some of these cases, and relegated the others to different concepts or
rights. This stipulative method is both
unfair and unrealistic. It is unfair
because opposing sides in substantive debates gain favor, or lose ground, by
the supposed neutral conceptual housekeeping.
Semantic legislation is unrealistic because philosophers and academic
lawyers are not going to change the way people talk, or the terms in which they
think. All that happens if the proposed
semantic reform is taken seriously is that new technical jargon is introduced,
and everyone not familiar with the specialists' literature uses the words just
like before.
One case study in the use of this
spurious methodology focuses on the concept of liberty. Many commentators have complained that several
of the so-called privacy cases would be better understood as involving the
concept of personal liberty. This seems
reasonable until we pause to consider what is at issue in the constitutional
tradition. Since every law infringes on
absolute personal freedom in some way, it is commonly accepted that a liberty
interest can be overridden by a simple expression of majority will, given
merely that the proposed law is rational.
A fundamental constitutional right, such as many insist privacy is,
however, has much stronger standing -- the state must show much more than
simple rationality for laws that would conflict with such a right. What appears to be offered as conceptual
clarification ends up begging the question in a substantial constitutional
controversy.
Because semantic legislation must be
rejected, I am forced to live with the common description of loud music as an
invasion of privacy, though I feel this is a very misleading way of
talking. Also of concern is the fact
that sexual modesty raises privacy related issues, though few of the analyses
-- including my own -- do a very good job of explaining why we use the concept
this way. I will confine my discussion
to the predominant theory of privacy.
Granting that this approach to the concept captures many of the central
cases, I will, nevertheless, articulate a different model that I believe both
more accurately characterizes the nature of privacy, and allows us to better
see why it is of such normative significance.
For both ordinary speakers and conceptual
analysts epistemological concepts like knowledge, secrecy and information
dominate semantic intuitions about privacy.
It
is apparent that there are a number of different claims that can be made in the
name of privacy. A number of them--and
perhaps all--of them involve the question and degree of control that a
person ought to be able to exercise in respect of knowledge or the disclosure
of information about himself or herself.
This is not all there is to privacy, but it is surely one central theme.[3]
Not all privacy
claims involve the control of personal information. To return to our earlier discussion, neither voyeurism nor loud
rock music involve any kind of information at all. Busybody neighbors, and decisions to withhold abortions or death
with dignity, depend on information only in some indirect way -- your neighbor
or the state has to know something about what you're doing in order to become
involved in this area of your life.
The most straightforward informational
intrusions of your privacy might involve bugs on your phone, computer searches
of your finances, or polygraph examinations of your soul. What happens when the searches fail to
uncover anything? Your roommate
violates your privacy by going through your desk drawer, even if she only
discovers that you are obsessive about separating your paper-clips from your
rubber bands. The private detective
grossly violates your privacy, not just attempts to, by putting a tap on your
phone, even if you're out of the country and he never hears anything.
The most striking thing about
informational models of privacy is that they deflect us from what is really
important. Why should I care that
others know things about me? If its
true that I have lousy credit, why hide the fact? The answer is obvious. It
is not that people know things that bothers us, but that based on this
knowledge, they do things or think things -- they judge us. I won't get my loan, or the state will throw
me in jail. To return to an earlier
theme, people may interfere with my liberty of action based on their knowledge
of private facts about me. AIDS and
drug testing can obviously produce information that will negatively affect a
person's future decisions. But people
do other things with personal information besides actively interfere with
choices. My impotence is a private
matter between my wife and I. I care
that others know this, not because choices or actions are denied me, but
because people will judge me and the state of my marriage. Privacy has something to do with
blocking. Some have seen this in a
non-metaphorical sense -- denying physical access. Others have stressed informational blockage -- the creation of a
sphere (note the spatial metaphor, again) of immunity over certain kinds of
information. I have argued on a number
of occasions that a better model would stress the blockage of illegitimate
attitudes and judgments on the part of others.
What we seek, on this conception of privacy, is immunity from the
judgment of others. This is what ties
together many of the paradigm cases of privacy invasion discussed above. It is offered as a unifying and simplifying
hypothesis. It says nothing, of course,
about the culturally determined lines within which we can expect immunity from
the judgment of others -- surely it is legitimate to judge people in many
contexts. The model is also silent
about the specific areas in which we can expect immunity from the judgment of
the state. Still, constitutional
privacy should not be seen simply as a technical notion having no direct
connection to our more idiomatic uses of privacy. It is precisely because our culture treats phone conversations as
private, or decisions about sexuality or contraception as being immune from the
judgment of other private citizens, that it makes sense to expect the Supreme
Court to enforce a constitutional immunity from the judgment of the state
within these narrowly circumscribed boundaries.
II. The Case Against Privacy
There is a pretend case against
privacy that is sometimes mentioned in philosophical discussions. It goes something like the following. Privacy is actually a subversive
interest. In the first place, those who
care the most about privacy are precisely the people who have something, often
illegal, to hide. Secondly, even for the
honest ones, privacy is literally anti-social.
It fosters an undesirable focus on the self and the narrow concerns of
the individual rather than directing one's productive attention to the general
welfare of the community. Thirdly,
since information has a clear market value, too much concern with privacy
misallocates resources in a highly inefficient manner.
This argument, of course, is
bluster. Our culture clearly values
personal privacy enough that no one would seriously suggest that privacy should
be done away with, or even be so drastically reduced. Economic efficiency, concern with community welfare, and a
preoccupation with law and order will never completely override our commitment
to some form of privacy.
There is, however, a much more serious
argument, with not so distant ties to the above, that is much more disturbing
and challenging. It appears in many
social, political and legal contexts, but is perhaps clearest in its
constitutional applications. In its
most general form, it simply reminds us that allowing and protecting personal
privacy often comes at a not insignificant price. There will be many contexts, so this argument goes, in which that
price is simply too high to pay.
Consider Fourth Amendment contexts
regarding reasonable searches, one of the most straightforward privacy issues
in constitutional law. A young girl is
searched by a school official acting in his official capacity without a
warrant, and lacking probable cause.
The Supreme Court concedes all of this yet argues that the search is
constitutionally acceptable. The
strategy is one of balancing the costs of protecting individual privacy rights.
Against
the child's interest in privacy must be set the substantial interest of
teachers and administrators in maintaining discipline in the classroom and the
school grounds.[4]
The Court's
concerns above are the needs and interests of public school officials. The case dealt with drug dealing, and it is
not surprising that the Court also considered the social costs to public order
and law enforcement of overturning the conviction.
The
determination of the standard of reasonableness governing any specific class of
searches requires "balancing the need to search against the invasion which
the search entails." . . . On one side of the balance are arrayed the
individual's legitimate expectations of privacy and personal security; on the
other the government's need for effective methods to deal with breaches of
public order.[5]
A kind of balancing occurs in other
privacy contexts having nothing to do with search and seizure, though it is
seldom expressed in these terms. In
Fourteenth Amendment Due Process cases the Court is forced to balance the
rights of individuals to life, liberty and property against the collective
wishes, needs, and in some cases rights, of the majority within society. Thus, the question of homosexual rights
balances the interests of an oppressed minority in having methods of sexual
gratification being recognized as immune from the judgment of the state against
the expressed legislative will of the majority to explicitly regulate this
intimate area of personal life. The
most notorious case of Fourteenth Amendment balancing pits women's right to
reproductive freedom:
the
right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child[6]
against:
the
state interests as to the protection of health, medical standards, and prenatal
life.[7]
Perhaps the fundamental constitutional
balancing goes back to the theoretical debates about judicial review. On the one side we have ideals of democracy
which commit us to being governed by the perceived will of the majority. On the other side we have the need to
protect individual rights from suppression at the hands of the majority. Conservative members of the Court have long
worried that the recognition of substantive privacy rights illegitimately tips
the balance away from "the people."
The
Court simply fashions and announces a new constitutional right for pregnant
mothers and, with scarcely any reason or authority for its action, invests that
right with sufficient substance to override most existing state abortion
statutes. The upshot is that the people
and the legislatures of the 50 States are constitutionally disentitled to weigh
the relative importance of the continued existence and development of the fetus
on the one hand against a spectrum of possible impacts on the mother on the
other hand.[8]
There is little doubt that the recognition of a robust right to privacy will result in a severe limitation on the will of the contemporary majority. The constitutional examples used above are a clear indication that, if social and legal policy is left to popular votes and attitudes, then some states, at least, will be driven by a fear of crime, or drugs, or homosexuality, to ignore the privacy interests of individuals. Those of us who value personal privacy, therefore, must find a way to defend its importance to those who see it primarily as an invitation to anarchy, lawlessness and baby killing. A balancing methodology can only work, either in a constitutional context or that of practical moral reasoning, when the full value of privacy as an abstract social ideal has been carefully laid out. Only then are we in a position to see whether some specific recognition of privacy interests is too expensive or impractical. When such a case is adequately presented I am confident that the balance will often tip the other way. We will come to see that privacy is so important that its protection far outweighs the inconvenience borne by society in protecting it.
III. Functional Justifications
There have been a number of attempts
to articulate the normative value of personal privacy in the philosophical
literature. They all face the following
difficulty. Some things we value for
their instrumental value. Money is a
favorite example -- it is good as a means to many worthwhile ends, but valued
for its own sake, it is pathological.
Other things, justice, for example, seem intrinsically valuable. Personal privacy seems to fit comfortably
into neither camp. It seems extravagant
to claim that privacy valued for its own sake, the way that social ideals like
freedom, justice and equality are. At
the same time, to treat privacy as an expedient means to other ends seems
demeaning. A middle ground is clearly
needed.
Social and biological scientists have
long explained, and in the process justified, organs, behaviors and
social practices in functional terms.
This seems precisely the kind of philosophical compromise between the
contingent and the intrinsic that is required.
The circulation of the blood, and the obvious contribution to life that
results, is much more than a merely contingent consequence of the heart
muscle. Nevertheless, hearts are not
intrinsically valuable. The function of
the heart is the circulation of blood.
This kind of functional explanation for what hearts are good for, and
biologically, why they are there in the first place, manages to incorporate the
means-ends relationship of hearts and blood circulation, while at the same time
acknowledging that the relationship is much more intimate than relationship
between hearts and thumping sounds. Parallel
stories could be told in anthropological terms between kinship structures and
social stability.
Functional explanations, like the more
general category of teleological explanations to which they belong, are
puzzling and have a checkered past in both philosophy and the natural
sciences. Much analytical effort has
been devoted to logical models of teleological explanations since the
1950s. One high water mark in this
literature is the work of Larry Wright.[9] Wright's key insight is that teleological
explanations offer consequence etiologies.
In explanations of goal-directed behavior -- nest building or going to
the store for beer -- we seek an etiology, a causal explanation for the
behavior, and in every case the consequence, the nest or the beer, is an
intimate part of an adequate account.
Functional explanations are offered
for things, or practices, or conventions.
Once again we see the general form of the consequence etiology. The organ, the heart, circulates the blood,
and it is precisely because of this that it is there in the first place. Wright's formal model is as follows.
The function of X is Z iff:
(i) Z is a consequence
(result) of X's being there,
(ii) X is there because it does (results in) Z[10]
Wright's
analysis is particularly powerful because it allows us to handle conscious
functions, the function of studs is better traction in icy conditions, where
the causal relationship in (ii) is one of conscious intent -- that of the tire
designer. At the same time we can
handle natural functions like that of the heart, by non-conscious causal
mechanisms like those of natural selection.
I will be reading the entire
literature on the value of personal privacy as an attempt -- unconscious, to be
sure -- to articulate a normative explanation of the social, political, and
legal functions of privacy. I will
incorporate Wright's consequence-etiological model of function statements and
will, therefore, try to fit all of the ensuing analyses into the following
general schema.
The function of privacy is Z iff:
(i) Socially
desirable situation Z is a result of the society's privacy conventions.
(ii) The privacy conventions are there because they result in Z.
Condition (ii) is clearly the most
controversial feature of the model. It
is responsible for the widely held view that functional explanations, like all
teleological explanations, are illegitimate because they invert the normal
causal-temporal order. How can some
future state Z bring about our present conventions? Although a standard worry in the literature, it is beautifully
addressed in the consequence etiological perspective. It is not the circulation of my blood that causally explains the
presence of my heart, but the past value of blood circulation in previous
generations that explains my genetic pre-disposition to develop a heart. Similarly, it is not the avoidance of
today's icy conditions that explains the studs, but the designer's anticipation
of such conditions at the time the tires were first on the drawing board.
Since the conscious design of cultural
practices will only work if one is willing to adopt a very strong theistic
framework, functional explanations in sociology and anthropology presuppose a
transmission mechanism that is related to the evolutionary processes mentioned
above. According to the thesis of
cultural selection ideas, practices, and conventions can be socially fecund
without ever entering our gene pool. If
some convention works, and clearly works better than available alternatives,
cultural selection says that it will tend to survive in the culture. Its past successes, its tendency to be
functional, provides the consequence etiology that explains its present place
in the culture. All of this, of course,
is exceedingly controversial.
Sociobiologists claim that all, or most, social transmission is
ultimately genetic. Social scientists
worry that without an identifiable transmission mechanism -- conscious ideas in
someone's head or strands of DNA -- cultural selection must rely on mysterious
entities like the collective memory or the oral tradition. Nevertheless, the ideas of social
functionality and cultural selection, are widely endorsed.[11] I am willing to assume their existence, both
because the ideas strike me as intrinsically plausible, and because the present
task is not anthropological. We are
seeking, after all, not a causal explanation of privacy, but a normative
justification. It is quite compatible
with the ultimate falsity of functional accounts of social practices, that our
culture nevertheless assumes them in its normative deliberations.
Although almost all of the
methodological controversy concerns Wright's second condition, most of the
discussion to follow focuses on the first.
If we grant some complicated mechanism by which successful social
conventions are perpetuated, our main concern will be with rival theories of
what makes privacy conventions advantageous to the culture and/or the
individuals within it.
IV. Freedom
At the level of pure lexicography I
don't think there is any doubt that the term privacy means something very
different than the term liberty. At the
same time, it is commonly held that there exists some kind of connection
between the concepts. Many would say
that this connection is the straightforward one of a workable means to a
desired end -- if you maintain your privacy, keep your business secret, then
you will be able to get away with doing whatever you want. You will have freedom because no one will
know anything about the choices you make.
I have argued elsewhere that the connection between the concepts is
logically stronger.[12] One could argue that one obvious limit on
governmental control -- one area where citizens have a right to be let alone --
concerns those areas of people's lives protected by their right to
privacy. Thus questions of liberty,
"the nature and limits of the power which can be legitimately exercised by
society over the individual",[13]
are partially answered in terms of one sufficient condition for drawing the
limit, without any claim to semantic equivalence between the concepts.
I take it to be obvious that to the
degree that "the Founders" considered the political value of privacy
at all, they would have been most interested in its instrumental value as a
safeguard of political liberty. Their
distrust of government bordered on paranoia.
Aspects of our privacy rights -- assembly, search and seizure,
self-incrimination, and most of the "penumbral" emanations -- manifestly protect and further political
dissent. This is certainly an important
contemporary justification of the value of personal and constitutional privacy.
The problem is that as highly as we
claim to value political freedom, our society is deeply suspicious of personal
freedom. We basically distrust our
fellow citizens. We don't really want a
society where people will have enough privacy to engage in truly personal
lifestyle choices. They might choose to
use drugs, or become homosexual, or make a myriad of other
"self-regarding" decisions.
Worst of all, our society treats its members as stupid, undisciplined,
and potentially violent. Government
will oppose extensive personal privacy as long as it continues to be seen as a
protective screen for illegal and disruptive behavior.
The problem is not really the connection
between privacy and liberty, but a mistaken view of privacy itself. There is an exaggerated focus on personal
information. Privacy becomes equated
with secrecy. Even on an informational
model, privacy is not a general immunity from the knowledge of others. Society stipulates the range of this
immunity; criminal behavior is manifestly not immune. It is, of course, true that protecting the area of immunity will
allow certain criminal acts to go undetected, but the importance of privacy is
not to create anything-goes personal freedom to break the law or social
conventions of our culture. We claim
immunity from the judgment of others within special culturally circumscribed
areas, and it is within these areas that we insist on genuine personal liberty.
V. Privacy as Moral Capital
Charles Fried was perhaps the first
theorist to notice that normative justifications of privacy conventions were to
be articulated in terms of functional explanations:
we
do not feel comfortable about asserting that privacy is intrinsically valuable,
an end in itself--privacy is always for or in relation to something or
someone. On the other hand, to view it
as simply instrumental, as one way of getting other goods, seems unsatisfactory
too.[14]
Fried
postulates a special kind of means/ends relationship between privacy and other
fundamentally valued situations.