What is Privacy?

Defining privacy is, unfortunately , not an easy task. There are innumerable definitions of privacy as a philosophical concept, and while most will capture some important aspects of the issue, it is virtually impossible to arrive at a definition that is not flawed in some way. Privacy as a concept is most commonly discussed as a right possessed by persons, and it is definitions of the right to privacy that are generally considered to be the most philosophically important. For example, an early and extremely influential definition of the right to privacy was formulated by Warren and Brandeis (1890), who suggested that the right to privacy was the right to be left alone, to protect the privacy of one s thoughts and emotions. Warren and Brandeis saw this as one important aspect of a broader interest in being left alone to pursue one s own projects; in other words, they derived a right to privacy from a broader right to liberty. One problem with such a definition, noted by Darren Charters (2002) is the fact that a person s privacy can be invaded without any direct infringement of their liberty. Another problem is that conceiving of a right to privacy in this way makes the right too broad, and gives no clues as to when such a right might be justifiably overridden. Another way of defining the right to privacy, noted by McCloskey (1980), is in terms of a right to control access to one s personal information. Seeing privacy in this way makes it akin to a property right, in that it can be dealt with in any way that the owner wishes. However, it is questionable whether it is appropriate to link privacy and control in this way, since this definition is open to a counterexample. A person who freely discloses intimate information about themselves to a wide range of people has suffered a loss of privacy, but since the disclosure of that information was entirely voluntary, there has been no loss of control. It seems clear that some sense of control of personal information is an important aspect of privacy, but it cannot constitute privacy in and of itself.

A third way to define privacy is to make reference to the notion of public and private spheres of life. The private sphere is that part of life concerned with familial, personal, and intimate relations, while the public sphere is the part of life concerned with action in the community. This is the way that the terms are used in business, for example, when discussing public sector and private sector enterprises . If privacy is taken as referring to the private realm, then a right to privacy is simply a right to ensure that one s life is not subject to undue interference from the government. While defining privacy in this way does capture some important ideas, it falls far short of an adequate definition of privacy generally, for such a definition would suggest that it is only the government and its agencies that can infringe upon a person s privacy, which is clearly not the case.

While there are clearly problems with the main definitions of privacy, it is also the case that these influential definitions each manage to delineate some important aspect of privacy. Warren and Brandeis (1890) highlight the necessity of privacy in order to allow a person to pursue their own life goals and projects. Accounts that link privacy to control over the release of personal information, draw attention to the fact that a right to privacy is necessary (at least in some cases) in order to prevent a person from being harmed. For example, if a person s sexual preferences were considered to be socially unacceptable, then that person might be harmed if that information was to become widespread. Thus, a right to control the release of this personal information is necessary to prevent harm to that person. Accounts of privacy that draw a distinction between the public and the private aspects of a person s life serve as a reminder of the importance of this distinction, for if there is excessive interference of the government into the private domain, then certain public roles become impossible to fulfill. An example of this is the necessity for secret ballots in elections ; if a person s voting preferences are known to the government, then it becomes difficult (if not impossible) for that person to properly fulfill their public role as a voter . Thus, it can be seen that while it may not be easy to arrive at a precise definition of privacy, it is possible to sketch out the main features of a right to privacy.

What aspects or features of life must a right to privacy protect? Three things have already been mentioned. A right to privacy must be, in at least some sense, a right to be left alone and a right to exclude others, which would include a right to not be subject to unjustified surveillance. A right to privacy must also allow a person to control, at least to some extent, the release of their personal information. A right to privacy must also protect a person from unjustified interference by the government, lest one s public roles be undermined.

The extent to which a right to privacy can limit these sorts of infringements is also a source of some debate. For example, the question of the control of the release of personal information has been debated at some length. Some have argued that virtually all information about a person is public information, which thus makes that information available for publication and dissemination . Others suggest that even information about a person that has been collected publicly ought to be subject to privacy limitations. This has given rise to a debate about the issue of privacy in public. While the full debate is beyond the scope of this chapter, some of the issues raised by the debate are important to this discussion, and so a brief overview of the debate is necessary.

The most in-depth discussion of the issue of privacy in public has been undertaken by Helen Nissenbaum (1997, 1998). She points out that traditional theories of privacy do not deal with the issue of privacy in public, for the issue did not realistically exist until the development of computer technology. The issue only arises in contexts where vast amounts of information can be stored, quickly and efficiently recalled, analysed in conjunction with other stored data, and so on. Nissenbaum (1998) suggests that the reason that people are concerned about the issue of privacy in public is because of a concern about what she calls the contextual integrity of information.

For the myriad transactions, situations and relationships in which people engage, there are norms ” explicit and implicit ” governing how much information and what type of information is fitting for them. Where these norms are respected I will say that contextual integrity is maintained ; where violated, I will say that contextual integrity has been violated. (Nissenbaum, 1998,p . 581)

The norms that govern our interactions with others vary, depending upon the relationship that we have with them and the situation in which we find ourselves . A person might happily tell their accountant about the intimacies of their financial dealings, but would not tell the accountant about their sexual preferences. The same person might tell their doctor about their sexual behaviour when consulting the doctor about a suspected sexually transmitted disease, but would not tell the doctor about their political beliefs. This person may tell a local political candidate about their political beliefs, but would not tell them about their religious beliefs. Sometimes the norms vary because of a particular context; the same person may not generally share his or her religious beliefs with an employer, but may well do so if asked if he or she will be observing a particular religious holiday (and thus be requiring time off work).

In the example above, the person would have voluntarily released a large amount of personal information about their financial dealings, sexual behaviour, and political and religious beliefs, yet they do not seem to have suffered a loss of privacy by the release of this information. Nissenbaum would suggest that this is because contextual integrity has been maintained. But if any of these individuals were to release this information to other parties, then this person would have suffered a loss of privacy. Nissenbaum would suggest that this is because contextual integrity has been violated. ^[1] Most concerns about the issue of privacy in public arise through violations of contextual integrity, where information that has been freely disclosed in a particular context and for a particular purpose is translated into a different context or used for a different purpose. Such concerns can arise even in cases where the information provided is not of a particularly sensitive nature; Nissenbaum (1998) quotes examples of violations of contextual integrity like being asked one s name by a stranger in the street, being asked for name and address details to conduct a cash transaction at an electronics store, or being asked details about one s off-line life when seeking online services.

If Nissenbaum is correct in suggesting that privacy in public ought to be protected, then this would mean that a right to privacy would also have to protect, in some way, against violations of contextual integrity as part of allowing a person control over the release of their personal information. A right to privacy must also protect a person s right to be left alone, and protect a person from unjustified interference by the government. Having determined this, it is time to see what this might actually mean in terms of use of the Internet, and the particular issue of employer monitoring of e-mail and Web usage.

^[1] These privacy concerns are sometimes recognised in law, such as through legislation that gives special protection to consultations with doctors .