LEGAL PRIVACY AND
THE ATTENTION OF OTHERS
Jeffery L. Johnson
Philosophy, Politics, and Economics
Eastern Oregon University
I. The Right to Be Let Alone
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect American's in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.(1)
Mr. Olmsteadt was a criminal, a bootlegger to be precise, and he was using the telephone to conduct his shady business. Law enforcement officials tapped his phone to produce the necessary evidence to bring him to justice. Although a majority of his colleagues on the Supreme Court saw things differently, Justice Brandeis felt that "the most comprehensive of rights and the right most valued by civilized men" was implicated in the case. This seems initially most unlikely, but I think it is worth our while to explore Justice Brandeis' thought a little further.
What is this most comprehensive and valued right? In the narrow context of United States v. Olmesteadt, it is the Fourth Amendment right to free from unreasonable search or seizure. But Brandeis made a very similar argument in many of the same words thirty years earlier in a very famous and influential law journal article. In this earlier context the right is specifically identified as the right to privacy. In both the law journal where the focus was on the development of civil protection of privacy, and the constitutional case dealing with the Fourth Amendment, Brandeis characterized privacy in Judge Cooley's terms - the right to be let alone. What do we mean by a right to be let alone?
Except for a few very eccentric, and probably dangerous, individuals, no one desires to be let entirely alone. Humans need friends, family, and social interaction. Life, liberty, property, and happiness - the Lockean and Jeffersonian basics - all depend on deeply complex social, commercial, legal, and moral interactions. A culture, and this is probably an oxymoron, of hermits, survivalists , and recluses, is the last thing civilized men or women would desire. But, of course, Justice Brandeis knew this all along. The right to be let alone was never imagined to be a normative directive to leave individuals totally alone. It articulates a value in leaving people alone, in certain kinds of ways, and in limited contexts. Exactly what these kinds of ways that people are entitled to be left alone are, or what precisely the contexts in which this entitlement holds, are the subject of great moral, legal, and constitutional controversy.
In addition to his provocative identification of privacy with an entitlement to be left alone, Justice Brandeis makes a comparative assertion. Not only is this value in personal and constitutional privacy identified as a right, it is given pride of place as the most comprehensive and valued of rights. As a bit of social ethnography at the close of this century - and I am pretty sure this would hold true at the close of the last - privacy is not the most valued of possible rights. Most citizens, sad to say, don't think enough about moral or legal rights to have an opinion one way or another. Those who do are as likely to identify the Second Amendment, or a collective community right to law and order, as the most valuable. Even as thoughtful and distinguished jurist as Justice Black expresses an almost dismissive evaluation of the importance of privacy.
The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. . . . I like my privacy as well as the next one, but I am compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.(2)
Justice Brandeis' concerns were not empirical, nor ethnographic. His remarkable claim is a normative one. Privacy is a central, and perhaps essential, value in a genuinely liberal society. I think he is quite correct in this judgment. Sadly, this remains bitterly controversial, not just because all normative and academic theses are controversial, but because we have such a fragile and imperfect understanding of the nature of personal and legal privacy, and an equally unclear vision of its social, legal, and moral importance. An possible entitlement to be left alone is an intriguing normative directive in a liberal society, but one that raises as many questions as it answers. In what sense are citizens entitled to be left alone? And by whom? And in what contexts? An adequate theory of legal privacy must provide at least the bare outlines to these basic questions. And, assuming we can reach some consensus about the nature of privacy, how much, and indeed why, should we value it? How can we ever engage in the reflective balancing of the costs and benefits of protecting privacy when we have sketchy understanding of its place in the larger array of values and rights in contemporary liberal society?
II. Explanatory Accounts of Legal Privacy
Exploring the concept of privacy resembles exploring an unknown swamp. We start on firm ground, noting the common usage of "privacy" in everyday conversation and legal argument; it seems it will be a simple task to locate the conceptual and moral core of such an often-used term. But the ground softens as we discover the confusion underlying our privacy intuitions. We find disagreement about both trivial and critical issues; for example, one person contends that the state would violate her privacy if it compelled her to wear a seat belt, yet the state argues that privacy has nothing to do with the wearing of seat belts, and another argues that the state would violate his privacy if it interfered with his homosexual sexual activities, while the government contends that privacy's scope covers only heterosexual sexual activities.(3)
The concept of privacy seems ripe for philosophical analysis and conceptual revision. Many philosophical and legal scholars have commented on its ambiguous uses in tort, Fourth Amendment, and Fourteenth Amendment contexts. In addition, the persistence of conflicting intuitions in legal and moral contexts strongly suggests that we are arguing about borderline cases, and that notion of privacy is dangerously vague. One can sympathize, therefore, with the instincts of W. A. Parent, and his desire to stipulate a clearer and more narrow concept. One that is both true to its standard uses in colloquial and legal speech, but avoiding the vagueness and ambiguity.
Defining privacy requires a familiarity with its ordinary usage, of course, but this is not enough since our common ways of talking and using language are riddled with inconsistencies, ambiguities, and paradoxes. What we need is a definition which is by and large consistent with ordinary language, so that capable speakers of English will not be genuinely surprised that the term "privacy" should be defined in this way, but which also enables us to talk consistently, clearly, and precisely about the family of concepts to which privacy belongs. Moreover the definition must not usurp or encroach upon the basic meanings and functions of the other concepts within this family. Drawing useful distinctions between different values is the best antidote to exploitation and evisceration of the concept of privacy.(4)
However well-intentioned and understandable the desire for conceptual improvement is, it seems doomed to theoretical failure. What we can call semantic legislation seeks to take ordinary and technical language out of its colloquial or professional context and redefine it by barring ambiguous uses, resolving vague uses into clear ones, or some other conceptual improvement.(5) But, if the method is to be something more than a rhetorical device, it must actually be intended to change the way people talk and think. It is perfectly obvious, however, that no book or article is ever going to have such a profound effect on the linguistic community. And it's a good thing, too - the last thing we need is to be told how we ought to speak.
I propose that we view models or theories of privacy (or any other interesting concept, for that matter) as explanatory accounts of the way people use the concept in colloquial speech and technical contexts. Any explanatory theory seeks to balance competing theoretical virtues.
There is, of course, a problem about how one is to judge that one hypothesis is sufficiently better than another hypothesis. Presumably such a judgment will be based on considerations such as which hypothesis is simpler, which is more plausible, which explains more, which is less ad hoc, and so forth. I do not wish to deny that there is a problem about explaining the exact nature of these considerations.(6)
Gilbert Harman sees his useful checklist of explanatory virtues a problematic, I suspect, because they are all so obviously subjective. We don't have an object metric for simplicity of an explanation, nor an independent standard for ad hoc-ness. Still, we recognize these four criteria for explanatory superiority when we see them. Thus, I want to measure any proposed analysis of privacy against these four ideals. The best analysis will be the one that:
Theories that are guilty of egregious semantic legislation often rate very high on the scale for explanatory simplicity. But they pay a huge price in terms of the other criteria. What we should be aiming for is an account of privacy that is simple enough to articulate the core nature of the concept, but complete enough to incorporate its varied uses in our moral and legal system. In the final analysis, I believe, our judgment of analytic and explanatory plausibility will be a subjective weighing of all these features together. We may discover that that's all there is to say - different thinkers will rate proposed analyses differently - but, I remain a guarded optimist that we may hope for inter-subjective agreement; that different thinkers each engaged in a subjective evaluation of explanatory success will discover that they pretty much see things in the same way.
III. Privacy and Information
It is apparent that there are a number of different claims that can be made in the name of privacy. A number - and perhaps all - of them involve the question of the kind and degree of control that a person ought to be able to exercise in respect to knowledge or the disclosure of information about himself or herself. That is not all there is to privacy, but it is surely one central theme.(7)
The privacy literature is justly notorious for its lack of consensus about almost everything. A notable exception to this broad generalization, however, is a good deal of tacit, and often explicit, agreement that the idea of personal information is somehow at the conceptual core of personal privacy. I have been arguing for the past decade, however, that this is a serious mistake.(8) It leads, I believe, to confusion, both in our attempt to understand the nature of privacy, and our ability to appreciate privacy's importance as a liberal value.
In one sense, of course, the protection and control of personal information does play a major role in our concerns with personal privacy. No one would deny that one very effective way of ensuring increased personal privacy is to exercise judicious control over the amount and quality of the personal information that is available to others. But the relationship is one of contingent causal efficacy, not necessary or conceptual interconnection. Others possessing, or having access to, sensitive personal information raises obvious privacy concerns. But, I will argue that the possession of personal information by others is neither necessary, nor sufficient, for a breach of personal privacy. I will go further and defend the counterintuitive claim, that we don't really care that much that personal information is available to others as long as other circumstances hold.
Before getting to my central argument, here, I would like to note an obvious, but I think often overlooked fact. Even when personal information is at the heart of our concern with privacy, it is never just the information, per se, but its being possessed and appreciated by others that we find troubling. This should alert us to something important. Epistemological concepts like knowledge, data, facts, and information are widely appealed to in proposed analyses of personal privacy. But it is very implausible to suppose that the epistemic states of others - what they believe or know about us - is nearly as important to us when we worry about our privacy as their more affective cognitive states - their judgment of, or focused attention on, ourselves.
Let me begin the process of conceptually separating information from privacy by noting the many ways that one's privacy can be egregiously violated where no new information is gained or possess by anyone. You break in and search my office late at night, perhaps hoping to discover evidence of criminal or unprofessional behavior on my part. All you discover is that I am untidy and disorganized, but that is common knowledge with all my colleagues and students. You have totally failed to gain any information, but have nevertheless violated social and legal norms regarding personal privacy. When I learn of this violation, my moral outrage is not focused on what you might, might not of, learned. For one thing, I'm not stupid. I know that the cleaning crew is in my office every night, and that the Department secretary has a pass key. If there was something I was concerned with others not knowing, I wouldn't be foolish enough to leave the information so unguarded. But that's just part of the story. You have insulted me, perhaps even assaulted me, and the nature of the offense is misinterpreted by focusing on the potential information that might have been gained.
Information models totally miss the point of the privacy concerns associated with sexuality, excretion, and nudity. Consider two nice examples from the recent literature. First from Julie Inness.
[W]hen a peeping Tom looks in a person's window for the second time, it is conceivable that he might acquire absolutely no new information about the victim. Despite this failure, the peeping Tom clearly violates the victim's privacy with the second, as well as the first, inspection. When he is charged with the second violation, he cannot escape with the explanation, "I've seen it all before!"(9)
And a second from Judith DeCew.
Consider a man who knows his wife's body very well but is now divorced from her and spying on her as she takes a bath. It is difficult to deny that her privacy is being invaded.(10)
These examples pretty conclusively make the point that a privacy violation can occur where there is no new information is gained, and indeed, concepts of knowledge and information seem irrelevant to our normative concerns. The common structure of these examples, of course, is that the victim's nude body has already been seen by the voyeur. I wonder, however, how important this aspect really is.
Imagine Inness's peeping Tom on his first visit to his victim's window. He violates her privacy, that's for sure. But how relevant are notions of knowledge and information? Consider the situation, first, from the perspective of the voyeur. He is not seeking information, but some form of sexual gratification. More relevant is the perspective of the victim. Is she concerned that he has learned something about her and her body? I doubt this very much. She has been violated, but not because information about how she looks without clothes is now possessed by someone without her permission. What exactly the nature of her psychological discomfort is, as well as the normative importance of her outrage, are obviously very complicated matters. To understand them completely will require much more than further philosophical analysis, but a healthy dose of psychology and cultural anthropology. All I am claiming at this juncture is that a preoccupation with knowledge and information seems at best misdirected.
Information seems to be at the center of our privacy concerns with financial and medical records. But here, too, I think we will discover that our concerns are more subtle and complicated than a fear that the information exists, or that others have access to it. In the first place this information is largely for our own benefit. I want the campus payroll officer to know how much I make so she can issue me a monthly check. I also want the mortgage company to see my financial history so that they will loan me money for my new summer cottage. And I certainly want the team of medical experts to know everything about my medical history so that can diagnose and cure my mysterious affliction.
If a reporter seeks to surreptitiously gain this sort of personal information about me for the tabloid article she is writing, however, privacy concerns are center stage. What exactly is the difference? The traditional answer in the literature has been that in the first set of examples the possession of this personal information by others was voluntary on my part, while in the case of the reporter or tabloid reader it was not. Thus, according to this line of thinking it is the control of personal information, not the simple existence of it, that raise privacy concerns. Personal privacy is something over which agents do exercise control. People can choose to surrender personal privacy. Thus, if I grant an interview with the tabloid reporter and voluntarily answer all these personal questions, I have no complaint that she and her readers now know these things about me. We shall see later that this notion of controlling one's privacy plays a large role in theories about the normative importance of privacy. But, at this juncture, I don't think the amendment of the information model of privacy into a model of the control of personal information has really solved anything. I certainly want to control who has access to my office, and Inness's victim wants to control who may stare at her in a state of undress, but in neither case is it all that plausible to suppose that what needs to be controlled is personal information. That is less clear in the case of medical and financial information, but I will argue that the same basic points apply. In the last examples we certainly do want to control who has access to this personal information, but not because the information is per se what is at issue, but because by controlling it we will ultimate control some more basic and important.
IV. Immunity from the Illegitimate Focused Attention of Others
Our interest in privacy, I argue, is related to our concern over our accessability to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others attention. This concept of privacy as concern for limited accessability enables us to identify when losses of privacy occur. Furthermore, the reasons for which we claim privacy in different situations are similar. They are related to the functions privacy has in our lives: the promotion of liberty, autonomy, selfhood, and human relations, furthering the existence of a free society.(11)
In accordance with our earlier decision to seek a modal of privacy, unified if possible, that will be the simplest, most complete, less ad hoc, and most plausible, let us review some of the interesting candidates in the recent literature. Here is a brief list of some of the serious proposals put forward.
The standard method of defending proposed privacy analyses has been a combination of attacking competing models with counter-examples and other problems, and a tacit appeal to the readers' linguistic intuitions and normative concerns. Rather than proceeding in a serial fashion to expose flaws in each of the proposed analyses, I want to simply articulate my current hypothesis about the nature of personal privacy, and then try to show how well this model fits into most every context where we are tempted to appeal to privacy.
My starting point is the common intuition that privacy protects what is no one else's business.(18) Or, as DeCew puts it, what is "the legitimate concern of others." What is it for another to make something about me his business? What is it for another to concern herself with me?
A cinemagraphic metaphor is helpful here. There is a kind of zooming in, or tightening of cognitive and emotional focus. The cocktail party is crowded and noisy; I hear random bits of several scattered conversations. All of the sudden I am struck with your animated exchange with your lover. I move in and actively listen to what you're discussing. I have concerned myself with your particular conversation; I've made it my business. And, of course, in the context imagined, I have done all of this quite illegitimately.
The explanatory account of personal and legal privacy that I propose to analyze and defend can now be stated in a relatively concise formula. Personal privacy is best seen as demarcating those areas of a person's life that are culturally (and legally) recognized as being immune from the illegitimate focused attention of others. We can know things about people without violating their privacy; we can judge them, concern ourselves with them, listen to them, report on them, have physical access to them, and in the same spirit, we can focus our attention on them. Privacy is not an absolute block on others focusing their attention on us. It's rude if you don't focus on what I'm saying in an intimate conversation, and I get annoyed when my students don't focus their attention on me when I am lecturing. Privacy norms stipulate very limited contexts in which individuals are granted this special immunity from focused attention. This point is fairly obvious, but is consistently passed over in the literature. Ruth Gavison, for instance, makes the following remarkable claim.
In its most suggestive sense, privacy is a limitation of others' access to an individual. As a methodological starting point, I suggest that an individual enjoys perfect privacy when he is completely inaccessible to others.(19)
This is utterly implausible. Complete isolation is far from a normative ideal like personal privacy; it is a tragedy or a punishment. Complete isolation does have the almost accidental by-product of guaranteeing the individual limitation of access by others. In the terms I am advocating, complete isolation guarantees the complete absence of focused attention on the part of others, and this guarantees that those areas where appropriate conventions guarantee immunity for illegitimate focused attention on the part of others. This is sort of like arguing that the absence of pain from arthritis of the knee is a good thing, so morally good surgeons should remove arthritic legs at the hip.(20)
To say that privacy grants to individuals an immunity from the focused attention of others is, of course, to leave as yet unanswered questions about what these contexts of immunity are, or why they are important. We shall see directly that there are very different contexts in which privacy is accorded. Although cultural conventions play a large part in what counts as private, even within the same culture we will see that immunity from the focused attention of others plays very different role in sexual privacy, informational privacy, and privacy involved in "fundamentally important decisions." It is easy to see, therefore, why some have argued there is no single conceptual core to privacy.(21) But, this intuition can be explained in terms of our culture's stipulating different areas where immunity from the illegitimate focused attention of others holds. What counts as private is that this immunity is conferred, but what makes privacy appear to be ambiguous is that it is conferred in very different contexts, and for very different reasons.
V. Legal Privacy
The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual. . . . [Our] law of privacy attempts to preserve individuality by placing sanctions upon outragous or unreasonable violations of its sustenance. This, then, is the social value served by the law of privacy, and it is served not only in the law of tort, but in numerous other areas of the law as well.(22)
In the United States there are at least four distinct legal sources for immunity from the illegitimate focused attention of others - statutory law, common law, and two quite separate constitutional provisions (the Fourth Amendment and the Fourteenth Amendment). Most jurists and academic lawyers who have studied privacy law have either found it to be, in Judge Bigg's famous phrase, "a haystack in a hurricane,"(23) or they have succumbed to the instinct for conceptual revision, and have sought to exclude certain kinds of issues and cases as not "really" having to do with privacy. I am struck, however, with the surprising conceptual continuity that the immunity from illegitimate focused attention of others model of privacy allows us to see in the disparate areas of the law.
VI. Statutory Privacy
The questions people ask determine the answers they receive. The right answer to the wrong question should never satisfy a judge. In statutory interpretation, the right answer always begins with questions about statutory purpose: What social problems does this statute try to correct? Does the case before us in court now represent the problem the statute addresses? . . . [W]henever a judge inquires into the purpose of the legislation he must invariably inquire into the social background facts that reveal the nature of the social problems involved in the case and how the statute tries to cope with them.(24)
The most straightforward kind of privacy protection we find in the law is statutory. Legislators occasionally become concerned with specific sorts of focused attention and take direct steps to address the problem. In the United States, for example, Congress became concerned with vast amount of personal records that were being amassed by federal agencies. They were specifically worried about highly personal information in the form of employment, academic, and medical records. The result was the Privacy Act of 1974 which was designed to safeguard the individual against an invasion of privacy through the misuse of these government records. It gave citizens the right to know about these records - how they were collected, maintained, used, and disseminated - and most importantly, to see their own records and seek amendment of inaccurate, untimely, or irrelevant information.(25)
The authors of the 1974 Privacy Act would, no doubt, be surprised to have their intentions characterized as a concern with legally enforcing an area of immunity for the illegitimate focused attention of others. They would be more comfortable, I'm sure, with the kind of information model so pervasive in the privacy literature. Still, I claim there is nothing stipulative, nor misleading, about such an interpretation of their motives, or the effects of their legislative action. The advantage of my approach is that other legal issues dealing with privacy, but having little or nothing to do with information, now become part of the same legal concern, and not simply equivocation.
VII. Privacy and Torts
[Privacy] is not one tort, but a complex of four. The law of privacy comprises 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.(26)
According to the prevailing view of privacy torts, there are several distinct protections provided in contemporary civil law. According to a classification introduced almost forty years ago, but one that continues to exert great influence, privacy is a kind of historical accident within the common law tradition. Each of the four torts that Prosser identifies is interesting and deserving of short discussion.
"1. Intrusions upon the plantiff's seclusion or solitude, or into his private affairs."(27) The examples of this particular kind of privacy violation all have to do with sensory or epistemological access to individual. Illegitimate physical intrusion was the first concern. An early case that all commentators mention involved a young man who fraudulently witnessed a woman during childbirth.(28) Over time, the tort came to afford to private individuals protection from searches, snooping, wire-tapping, and another forms of informational access, in ways that ways similar to the Fourth Amendment's protection from unreasonable searches and seizures on the part of the state.(29)
The notion of intrusion is, of course, primarily a spacial concept. And in some of the earliest examples of this tort the violation of norms regarding spacial and locational norms seems to have been the court's major concern. But as soon as the tort is expanded to cover electronic intrusion by wiretapping, for example, it becomes apparent that the court is protecting something much broader that physical space and security. I claim, of course, that as good a description as any would be to say that individuals are granted immunity from the illegitimate focused attention of others. What is tortuous in this family of cases is not, as Prosser hypothesized, "the intentional infliction of mental distress,"(30) which is much too general, but the breaching of a limited immunity granted to all individuals.
"2. Public disclosure of embarrassing private facts about the plantiff."(31) It's bad enough when one person violates your privacy, but it's much worse when a whole group of strangers is collectively involved in the violation. A movie maker focuses attention on a former prostitute and murder defendant. She had, as Prosser puts it, "abandoned her life of shame, become rehabilitated, . . . [and] led a life of rectitude in respectable society."(32) The movie depicted the trial and used the woman's real name. All of the sudden she found herself the object of very focused attention on the part of movie audiences. Obviously a case like this is different than the intrusion cases discussed above.
For one thing the focused attention is more passive. The voyeur, snoop, private eye, newspaper reporter, and the like, intentionally focus their attention on individuals against their will. If there is indeed a privacy violation in these cases, if the focused attention is illegitimate, than the person who focuses his or her attention bears normative responsibility. This is not usually the case in the second set of privacy torts. The movie audience went to the show innocently expecting entertainment, not to violate anyone's privacy. That their attention became focused on the unlucky victim was not their fault, but the movie maker's. The wrong here, is not the intrusion, exactly, but sharing the results of the intrusion with others in an illegitimate and public manner.
The second difference concerns our standards for illegitimacy. Our liberal society honors other very important political and legal values. Freedom of expression, and freedom of the press, are clearly central in our constitutional system. Retelling a famous murder case in a dramatic and entertaining way through the medium of film is a form of artistic creation that we all have an interest in protecting. Allowing an open, skeptical, and aggressive free press may be something of a precondition for genuine political freedom. Obviously, however, there will be an inherent tension between these First Amendment interests and individual citizens' privacy interests. We can expect, therefore, that our culture and legal system's privacy norms will evolve in such a way that some balancing will have already taken place in our judgments about which attempts to focus the attention of readers and movie goers will count as legitimate or not. There will still be plenty of work for trial and appeals courts to do, of course, since these rough standards of illegitimate focused attention on the part of others will need to be fine tuned by the exigencies of the real world. I am not sure how such a case would come out at the end of the century, but in 1931, the California court in Melvin v. Reid, felt that using the woman's real name illegitimately focused attention on her. And even if our sensibilities may have eroded in the ensuing six decades, such a judgment perhaps has much to recommend it.
"3. Pubilicity which places the plaintiff in a false light in the public eye."(33) I may focus the attention of others on you in a direct and personal way that may count as illegitimate by publicizing some intimate or embarrassing fact about you, but I can also focus the attention of others by lies, inaccuracies, or unreliable data. According to some commentators, when alleged facts turn out to be errors, privacy is no longer implicated. W. A. Parent makes such a case in unusually straightforward terms.
According to Parent, a "false light categorization of privacy displays an egregious misunderstanding of privacy."(34) His argument is based on his reading of Paul v. Davis.(35)
The police distributed a five-page flyer to some 800 store owners in the Louisville, Kentucky, area which contained the names and photographs of persons identified as "known shoplifters." Davis's picture and name appeared there. He had been arrested for shoplifting but the charges against him were dropped shortly after the flyer's distribution. Davis brought an invasion of privacy suit against the police. He ought not to have done so, for the flyer did not reveal any personal facts about him. His only legitimate course would have been to bring a cause of action for defamation. Justice Rehnquist said precisely this in his majority opinion.(36)
Many have worried that the potential overlap between the law of defamation and this aspect of privacy tort was a cause for legal and conceptual concern. Prosser was clear about this in his original discussion.
It is here, however, that one predisposed to alarm might express the greatest concern over where privacy is going. The question may well be raised, and apparently still is unanswered, whether this branch of tort is not capable of swallowing up and engulfing the whole law of public defamation; and whether there is any false libel printed, for example, in a newspaper, which cannot be redressed upon the alternative ground.(37)
Since I am not trained as a lawyer, I remain neutral on the question of whether it is a good or bad thing to have two areas of civil law concern themselves with very similar kinds of issues. But, I find it quite natural to describe the misidentified "shoplifter's" concern as being one of personal privacy. And, I am equally struck with the conceptual and methodological flaws in Parent's argument to the contrary.
The fact, if it is a fact, that the case might have been litigated as a defamation case is incidental to Parent's argument. He stipulates, "[i]nvasion of privacy must consist of truthful disclosures about a person."(38) Why, you may ask. Because of his earlier definition of privacy.
Privacy is the condition of not having undocumented personal knowledge about one possessed by others. A person's privacy is diminished exactly to the degree that others possess this kind of knowledge about him. . . . A full explication of the personal knowledge definition requires that we clarify the concept of personal knowledge. My suggestion is that it be understood to consist of facts about a person which most individuals in a given society at a given time do not want widely known about themselves.(39)
The plaintiff has no privacy complaint because he has not been proven guilty of anything, and what the police charge him with is not yet established as a fact. Had he been found guilty, he may then have had a case, since this would have been a bit of personal information that most people would desire not to have known about themselves. Surely such a strange argument gives us insight, not into the nature of legal privacy, but the dangers of semantic legislation. The whole argument seems predetermined by a problematic, stipulative definition.
The courts, here, seem to have better intuitions than some philosophers. A pair of influential, and closely related, cases involved a photograph of a couple embracing in public. The first is discussed by Prosser as a disclosure case, though I am not sure what the "embarrassing private fact" is. The court dismissed this case on the reasonable enough grounds that by embracing in public, the couple had voluntarily consented to be viewed by others.(40) In the terms suggested here, the published photograph may have focused the attention of other on the man and wife, but this focused attention was not illegitimate because of the location and context of the embrace. The second case, however, shows how natural it is to include false light as an aspect of personal privacy. The same photograph was used to illustrate an article on "the wrong kind of love, . . . [involving] wholly sexual attraction and nothing else."(41) The focused attention of viewers of the photograph is now deemed illegitimate, precisely because the alleged facts implied in the article and photograph turn out not to be facts at all.
"4. Appropriation, for the defendant's advantage, of the plantiff's name or likeness."(42) Consider the plight of the superstar philosophical celebrity. As a byproduct of her academic work, she is recognized everywhere she goes, constantly hounded for autographs, trailed by the paparazzi, and generally has surrendered a private life outside of her office or home. Ah, the price of philosophical fame! She occasionally allows herself to be the subject of the additional focused attention of others for financial gain. After all, commercial enterprises - word processors, dictionaries, legal data bases, and the like - are always asking her to endorse their products. She is willing to sacrifice some of her privacy because it is lucrative. If she becomes better known for her slick television advertisements than for her books and articles, if she can't walk the streets anonymously, this focused attention on the part of others is still legitimate because she has consented to it, and is handsomely compensated for it.
If I now appropriate her digital image as an implied endorsement of my commercial web page, or if WordPerfect uses her name without permission and compensation in their advertisements, the additional focused attention of others becomes actionable. We have stolen from her. Legitimate focused attention can be turned into illegitimate focused attention by unscrupulous business practices. Some may see this as a kind of devaluing of personal privacy. What the courts have correctly seen, I believe, is that a person's name and likeness, and the attendant focused attention of others that goes with publishing this name or likeness, is a kind of commodity. One that can be misappropriated, and is deserving of legal protection because it results in the illegitimate focused attention of others.
Prosser says that the privacy torts have little in common besides the appellation. Edward Bloustein demurs, seeking to unify the different aspects of civil privacy by. "discovering in the welter of cases and statutes the interest or social value which is sought to be vindicated in the name of individual privacy."(43) It may prove useful to examine his hypothesis that human dignity is the basic value underlying personal and legal value. My attempt at unification is the present context, however, is less normative, and more conceptual. All four of Prosser's privacy torts seem to naturally involve the illegitimate focused attention of others. The are can be distinguished on the basis of what makes the focused attention tortuous, but they remain unified because this common feature.
VIII. Fourth Amendment Privacy
Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and guilty alike. . . . The Fourth Amendment cabins government's authority to intrude on personal privacy and security by requiring that searches and seizures usually be supported by a showing of probable cause.(44)
It is one thing for private citizens, individually or collectively, to illegitimately focus their attention on you. It is quite another for government, with the coercive power of the law, to illegitimately focus its attention on you. Our Bill of Rights seems to clearly articulate relevant standards for when such focused attention is legitimate and illegitimate.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.(45)
In a perfect world the only government searches - the only systematic focusing of the law's attention on the individual - would be those where there was a valid warrant. A judge or magistrate would already have determined that there was probable cause for the search, and the scope of the search would be clearly articulated. In such a world citizens' would have a good deal more privacy in their dealings with government, and Fourth Amendment jurisprudence would be a good deal less interesting. Even the staunchest conservative will grant that valid search warrants are the ideal for government searches, and even the most died in the wool liberal will grant that some searches will be necessary in their absence.
Exigent circumstances - safety, time, the danger of evidence being destroyed - will require the legitimacy of some state searches, in contexts where securing a warrant would be impossible. Fourth Amendment defenders demand, however, that the circumstances truly be compelling - that the exigent circumstances exception not become a loophole that allows the state to simply bypass the niceties of securing warrants. Furthermore, they insist that the probable cause standard be applied retroactively. What emerges from this line of reasoning is a kind of subjunctive test for the legitimacy of the state's focused attention on the individual. In the ideal case, upon the demonstration of probable cause, a judge or magistrate will issue a warrant that both limits and legitimizes the state's search. In exigent circumstances, the state will demonstrate that there was probable cause for the search, and that a valid warrant would have been issued, were circumstances less compelling.
The last thirty years or so of Fourth Amendment jurisprudence has seen some softening of the probable cause standard for constitutionally valid state searches. Searches have been legitimized by the Supreme Court in contexts in which all parties concede that probable cause was completely absent. There are at least two quite distinct reasons that these instances of focused state attention on particular individuals have been deemed legitimate. One has to do with an individual's "expectation of privacy." The Court has ruled, for example, that automobile drivers have a lesser expectation of privacy in their cars.
One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as a repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.(46)
Similarly, public school children have a lesser expectation of privacy in their school lockers.(47) The expectation of privacy criterion is something of a self-fulfilling prophecy. As a Southern California highschool student in the middle 60s, I'm pretty confident that my peers did have an expectation of privacy about what was kept in our lockers - we would have been outraged to learn that school officials or police officers were rummaging around in them. I am told this is far from the attitude of contemporary highschool students - they all understand that random searches are a possibility, if not a likelihood.
I very much regret this change in our understanding of privacy and the Fourth Amendment, but it pales in comparison to the other exception to the probable cause standard. The Court now recognizes the validity of "reasonable" state searches in the total absence of warrants, probable cause, and diminished expectations of privacy. High school students can be searched - the contents of their purses, or their urine - in the name of discipline and order.
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." At least . . . where there is no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard "'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'"(48)
Such a balancing approach to the Fourth Amendment, or any constitutional right for that matter, is highly problematic.(49) For one thing, the state almost always cheats in articulating the terms of the measuring of importance. Order and discipline in the public schools! The war on drugs! Fighting crime! The state justifies its need to focus attention on individuals in the absence of warrants or probable cause in the name of great social generalities and asks the Court to weight this against the pain caused to one individual (usually one who is guilty of something) by a specific search. Shouldn't the social cost of unreasonable state searches be the general devaluing of our collective Fourth Amendment right to immunity from the illegitimate focused attention of the state? This is a price that I would like to think concerned citizens would be unwilling to pay.
IX.
Like Justice Holmes, I believe that "[i]t is revolting to have no betterreason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." . . . I believe that we must analyze respondent's claim in light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an "abominable crime not fit to be named among Christians."(50)
Government has the power to focus its attention on individuals in ways that have nothing to do with search and seizure. It can concern itself with you - it can make your business, its business - by criminalizing behavior that you engage in. Usually this focused attention on you will be indirect. It will be extremely rare for government to care that you, personally, engage in some behavior it desires to proscribe. The typical case will be that the behavior, generally, is made a crime and you get caught up in government's focused attention on anyone engaged in the behavior almost by accident. Defenders of constitutional privacy claim that some instances of this sort of governmental focused attention are illegitimate.
This line of thinking has struck many commentators as downright dangerous. They point out that any real system of laws will proscribe certain forms of personal behavior. Almost any law will implicate what the Supreme Court calls an individual's "liberty interest." But since government and law are absolute necessities, the state's rational interest in the public good must almost override those of individuals who would desire to engage in the proscribed behavior. As general points about law, sovereignty, and individual legal freedom, all of this is beyond dispute. But the question remains whether there might be a class of behavior that is somehow special and deserving of constitutional protection on the grounds that government's focusing its attention here counts as constitutionally illegitimate.
The United States Supreme Court has famously ruled that there is indeed a class of behavior that is deserving of immunity from the focused attention of the state. Like many important issues in constitutional law all of this has developed piecemeal, and coherence and conceptual unity is only possible in hindsight. The Court's first attempts at articulating such a right of privacy focused on concepts of place and interpersonal relationship. Justice Harlan writing in 1961 summarizes the Court's historical privacy concerns, as follows.
Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. . . . Of this whole 'private realm of family life' it is difficult to imagine what is more private or intimate than a husband and wife's marital relations.(51)
The issue before the Court was laws criminalizing the use and dissemination of birth control. By 1965 the Court explicitly recognizes certain immunity from the focused attention of the state within the marital relationship.
We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.(52)
But even here, we see in Justice Douglas's opinion a continuing concern with notions of place, and Fourth Amendment privacy concerns.
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.(53)
The sort of behavioral, or decisional, immunity from the focused attention of government only clearly enters American constitutional law 1972 in a case that also deals with the legal proscription of birth control.
It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the married couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is 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 to bear or beget a child.(54)
We must clearly distinguish two totally separate issues at this point. My concern is with characterizing legal and constitutional question of privacy. The Supreme Court has identified a narrowly defined range of decisions which "fundamentally affect a person" as being constitutionally immune from the focused attention of the state. Decisions about bearing or begetting a child are important examples of such illegitimate focused attention. All I am arguing at this point is the language of privacy seems natural, historically coherent, and appropriate. All of this is quite distinct from the jurisprudential questions of whether the United States Constitution does contain such a right to privacy, where such a right, if it does exist, finds its constitutional home, or what the appropriate range of decisional immunity is. I have strong opinions on these latter issues. I have argued elsewhere that a "Due Process" home for decisional privacy makes interpretive sense, and that the Court's extension of this immunity from governmental attention to abortion is philosophically and constitutionally valid.(55) I lament the Court's reluctance to extend such immunity to decisions about sexual preference,(56) or explicitly to the controversies regarding "the right to die."(57)
X.
The umbrella "right to privacy" extends, no doubt, to other claims besides the claims not to be watched, listened to, or reported upon without leave, and not to have public attention focused upon one uninvited. . . . It deals, therefore, with a cluster of immunities which, if acknowledged, curb the freedom of others to do things that are generally quite innocent if done to objects other than persons, and even to persons, if done with their permission. There is nothing intrinsically objectionable in observing the world, including its inhabitants, and in sharing one's discoveries with anyone who finds them interesting.(58)
In liberal democracies like our own it is the focused attention of government that is a primary concern. Government and law to some degree presuppose a judgmental focus between the sovereign and citizen. As we emerge from the state of nature we have bargained away our total freedom and have agreed to live under law. Obviously government must ensure that we have kept our end of the bargain. We expect the police officer to focus her attention on all of us as she drives through the neighborhood. Nevertheless, there are at least two different reasons for insisting that this focused attention have limits.
One is nakedly political. If government has total license to focus its attention on us, we rightly worry that our individual liberties will be sacrificed. Social efficiency and public order, to say nothing of unscrupulous motives on the part of the sovereign, may come to so dominate society's priorities that there will be little room left for life, liberty, or individual happiness. By insisting that government not focus its attention on us in certain contexts we help to preserve room for the individual to live autonomously. As discussed earlier, the constitutional rules limiting the focused attention of government do this in two ways. They demarcate aspects of our actual one-on-one relationship to political and legal authority. There are clear privacy limitations on governmental officials from searching us, interrogating us, or bugging our phones. On the street, or in an airport, we surrender some of this immunity from focused governmental attention, but not in our homes or cell phone conversations. A very different kind of immunity from the state's attention is derived by defining as out of bounds government's focus on certain kinds of behavior. It is none of government's business what consenting adults do in their bedrooms, or what decisions women make about their health and bodies. Obviously, anyone familiar with recent privacy controversies knows that all of what is said above is disputed by some, and all of us grant certain exceptions - privacy does not permit violence against women or the sexual exploitation of children. Nevertheless, even the most law and order communitarian will concede certain limitations on the part of government to focus its attention on individual lives. Genuine political freedom remains perhaps the most important consideration in defense of privacy rules.
In terms of an individual's everyday life, however, there is a strong case to be made that our concern with personal privacy has less to do with government than with the focused attention of private citizens and corporations. We desire immunity from the focused attention on our credit card purchases, by telemarketers. Celebrities feel aggrieved that the tabloids focus their attention on their love lives or personal health. I am offended that my secretary reads through my correspondence and e-mail. In some contexts these concerns merge with the political ones discussed previously. If we are preoccupied with the military industrial complex, we may see corporate violations of our privacy by marketeers or insurance companies as just a round about way of threatening or personal and political freedom. But that doesn't really get at the concerns with the tabloids or my secretary. If we learn of a famous musician's life threatening illness, or my secretary takes vicarious pleasure in my sexual indiscretions with former students, it's not really freedom, and certainly not political freedom, that's at stake.
Many theorists have linked the normative center of these latter kinds of privacy violations with the concept of the self. Victims of the privacy violations, at least when they become aware of these violations, find their own self-awareness changed in often painful and distressing ways. As Sartre put it, "I see myself because somebody sees me."(59) A total absence of personal privacy, say in a prison or other institutional setting, may so alter an individual's sense of self that he or she becomes, in some literal sense, a different person. Many have suggested that failure to honor privacy conventions constitutes a kind of Kantian disrespect for the person.(60) I have suggested that privacy ultimately gives us areas of our own lives where the self can flourish because we are granted immunity from self-judgment, or as I would put it now, from the focused attention of self-awareness.(61)
What all of this talk about the self is getting at, I now think, is not armchair psychological accounts of the origins and maintenance of a theoretical entity by that name. It is rather a normative insight. Conscious humans can be conscious of others, and of themselves. When we become the object of the focused attention of others, or of our own self-reflective attention, our feelings and behavior are often changed. This is often a context of physical or psychological danger. It is something that can be unpleasant, and downright painful. Legal rules establishing privacy conventions may ultimately be justified for their usefulness in providing some sanctuary from the incessant focused attention of others that a social and political species like our own is doomed to endure.
2. Griswold v. Connecticut 391 U.S. 145, 85, S. Ct. 1678 (1968), (Justice Black, dissenting).
3. Julie Innes, Privacy, Intimacy, and Isolation, p. 3.
4. Parent, Philosophy and Public Affairs, Volume 12, Number 4, Fall 1983, p. 269.
5. Cite Larry Wright for his concept of semantic legislation.
6. Gilbert Harman, "The Inference to the Best Explanation," in Brody, p. 324.
7. Richard Wasserstrom, "Privacy: Some Arguments and Assumptions," in Schoeman, p.317.
9. Innes, op. cit., p. 64.
10. Judith DeCew, In Pursuit of Privacy, p. 34.
11. Ruth Gavison, "Privacy and the Limits of the Law, in Schoeman, p. 347.
12. Parent, op. cit., p. 269.
13. Stanley Benn, "Privacy, Freedom, and Respect for Persons," in Schoeman, p. 224.
14. DeCew, op cit.
15. Gavison, op. cit.
16. Amitai Etzioni, The Limits of Privacy, p. 196.
17. Jeffery L. Johnson, "Privacy and the Judgment of Others," p. 157.
18. Rachels, and perhaps quote Feinberg in the note.
19. Gavison, op. cit., p. 350.
20. Reference to Pike's article on evil.
21. Thomson, Prosser, etc.
22. Edward J. Bloustein, "Privacy as an Aspect of Human Dignity," in Schoeman, p. 188.
23. In Ettore v. Philco Television Broadcasting Co., 229 F.2d 481 (3d Cir. 1956).
24. Carter, 5th Ed., pp. 56-7.
25. http://www.tncrimlaw.com/foia
26. William L. Prosser, "Privacy [a Legal Analysis]," in Schoeman, p.107.
27. Ibid.
28. De May v. Roberts, 46 Mich. 160, 9 N. W. 146 (1881).
29. Other kinds of intrusional privacy cases.
30. Prosser, op. cit., p. 109.
31. Ibid, p. 107.
32. Ibid, p. 109.
33. Ibid, p. 107.
34. Parent, op. cit., p. 285.
35. Paul v. Davis, 424 U.S. 693 (1978).
36. Parent, op. cit.
37. Prosser, op. cit., 114.
38. Parent, op. cit., my emphasis.
39. Ibid, pp. 269-70, emphasis in original.
40. First Gill case.
41. Second Gill case.
42. Prosser, op. cit., p. 107.
43. Bloustein, op. cit., p. 157.
44. United States v. Sokolow 490 U.S. 1, 109 S.Ct. 1581 (1989), Justice Marshall, dissenting.
45. United States Constitution, Amendment IV.
46. Cardwell v. Lewis, 417 U.S. 583, 590 (1974).
47. See, for example, People v. Overton, 24 N.Y. 2d 522 (1969), and Zamora V. Pomeroy, 639 F. 2d 662 (1981).
48. Vernonia School District 47J v. Action, 115 S.Ct. 2386 (1995).
49. See, Donald Crowley and Jeffery L. Johnson, "Balancing and the Legitimate Expectation of Privacy, St. Louis University Public Law Review, Volume VII, Number 2 (1988), pp. 337-58.
50. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986). (Justice Blackmun, dissenting).
51. Justice Harlan cite in Glendon, p. 57.
52. Griswold v. Connecticut.
53. Ibid.
54. Eisenstadt v. Baird.
55. Johnson, "Constitutional Privacy,"
56. Bowers v. Hardwick.
57. Cruzan v. Cruzan.
58. Benn, pp. 224-5.
59. See note 15.
60. Benn, Reiman, and others.
61. Johnson, 1992.