Moral Rights to Privacy and Confidentiality

Provision of an adequate philosophical account of the right to privacy is a necessary precursor to setting the proper limits of intrusion by the various new technologies. ^{[ 1]} Such an account of the right to privacy would assist in defining the limits to be placed on unacceptably intrusive applications of new technologies. Moreover, it would do so in such a way as to be sensitive to the forms of public space created by these technologies and not unreasonably impede those new possibilities of communication and information acquisition that are, in fact, desirable. As always, it is important to balance the rights of individuals against the needs of the organisation and the community more generally . On the one hand, there is a fundamental moral obligation to respect the individual s right to privacy; on the other hand, there are the legitimate requirements of, for example, employers to monitor the performance of their employees , and, in particular, of law enforcement agencies to monitor the communications and activity of their personnel in the context of concerns with security and corruption. Self-evidently, the working out of these ethical problems is relativised to a particular institutional and technological context. Unauthorised accessing of records, for example, has much greater significance in the context of a police organisation than it does in the local delicatessen. Again, the question as to whether e-mail, for example, ought to be assimilated to ordinary mail depends in part on the nature of the technology in question and the institutional framework in which it is deployed. Perhaps e-mail messages sent on a company-owned computer network ought to be regarded as public communications within the organisation, however personal the content of these messages. These e-mail messages, unlike ordinary mail, are always stored somewhere in the backup system owned by the company, and are therefore accessible to the dedicated company cyber-sleuth (Magney, 1996). In this chapter the discussion will be restricted to privacy and confidentiality rights in relation to electronic surveillance and monitoring of police officers. I will now provide an outline of the general notions of privacy and confidentiality. Here, I take it that moral rights have as their point to protect central moral goods. For example, various rights to freedom have as their point to protect the moral good, autonomy.

Many people feel seriously diminished by the disclosure of personal information, even when it is accurate and they are not damaged professionally or socially . Small wonder that more than 60 years ago, Louis D. Brandeis, a prominent Boston lawyer who became one of our greatest jurists, characterised the rights of privacy as the most comprehensive of rights and the one most valued by civilised men (Warren & Brandeis, 1890). The thought was echoed by the late William O. Douglas, who said, The right to be left alone is the beginning of all freedom (Miller, 1982).

Brandeis and others are surely correct in holding that privacy is an important moral value. However, the notion of privacy has proven to be a difficult one to adequately explicate. Nevertheless, there are a number of general points that can be made.

First, privacy is a moral right that a person has in relation to other persons with respect to: (a) the possession of information about himself/herself by other persons; or (b) the observation/perceiving of himself/herself ” including tactile interference such as body searches ” by other persons. The range of matters regarded as private in this basic sense embraces much of what could be referred to as a person s inner self. This inner self comprises a person s unexpressed thoughts, feelings, bodily sensations, and imaginings. But it may also comprise elements or aspects of a person s body ” roughly speaking, those elements or aspects that are not normally perceptually accessible to others in public spaces. This inner self is the core of the sphere that is subject to an individual s autonomous decision-making. Here, the inner self stands in contrast with the outer self, the self that is necessarily present to others or that a person chooses to make known or to present to others (Nagel, 2002). A person s autonomy with respect to this inner self is not primarily de facto autonomy, although a person does have a degree of de facto autonomy with respect to what they are thinking. Rather, it is a moral right to autonomy in respect of their inner self.

Second, a person s moral right to autonomy in respect to his or her inner self ” the right to privacy ” derives from the fact that a person s inner self, in large part, comprises his or her personal identity; it is in large part who they are. (Naturally, a person s identity is also in part constituted by his or her outer or public self.) Moreover, a person s inner self is in part constituted by his or her autonomy with respect to the inner self, their ability (albeit limited) to decide what to think and feel ” to decide, in effect, who they are. More than anything else, it is the moral value of personal identity, that explains the moral repugnance of violations of privacy. The more intrusive and sustained these violations are the more repugnant they are; and the more they involve an attempt to change, as opposed to merely passively observe, elements of one s personal identity, the more morally repugnant they are. Hence our deep moral aversion to thought control. Like unjustified attempts to restrict our movement, thought control is a violation of our autonomy, but at a deeper level it is an assault on our personal identity, including our autonomy ” an assault on who we are.

Third, while closely related , the right to autonomy is not the same thing as the right to privacy. For one thing, a person has a right to autonomous decision-making in relation to a range of issues outside the sphere of the inner self; the right to autonomy embraces much of a person s decision-making in the public sphere. However, the right to autonomy and the right to privacy are conceptually connected. Roughly speaking, the notion of privacy delimits an area viz. the inner self; however, the moral right to decide what to think and do is the right to autonomy, and the moral right to decide who to exclude and who not to is an element of the right to autonomy. So the right to privacy consists of the right to exclude others (the right to autonomy) from the inner self (the private sphere). Fourth, a person s intimate relationship with another person gives rise to a zone of interpersonal privacy from which third parties are typically excluded. For example, a married couple has a right to engage in intimate sexual acts in their home unobserved by others. Such zones of interpersonal privacy or intimacy typically exist between members of families (e.g., parents and children, friends and lovers). Moreover, such intimacy is regarded as a moral good, and the point of these rights to exclude is to protect that moral good. Certainly, the development of interpersonal relations with emotional depth requires, and is in part constituted by, intimacy. However, intimacy can be morally problematic . Consider the predatory intimacy that might result in an exploitative sexual relationship, or the betrayal of trust that results when an undercover operative finally shops an offender that he has befriended.

Fifth, certain facts pertaining to objects a person owns or monies a person earns are held to be private, simply by virtue of the right to ownership. Ownership appears to confer the right not to disclose, or have disclosed, information concerning the thing owned. Or at least there is a presumption in favour of non-disclosure, including non-disclosure to or by government departments, a presumption that can be overridden to a limited extent by, for example, the public interest in tax gathering, or in tracking the proceeds of a crime.

Sixth, certain facts pertaining to a person s various public roles and practices, including one s voting decisions, are regarded as private (Benn, 1988). These kinds of facts are apparently regarded as private in part by virtue of the potential, should they be disclosed, of undermining the capacity of the person to autonomously function in these public roles or to fairly compete in these practices. If others know how a person votes , the person s right to freely support a particular candidate might be undermined. If business competitors have access to a person s business plans, then they will gain an unfair advantage over the person. If a would-be employer knows a job applicant s sexual preferences, then the employer might unfairly discriminate against the job applicant by not hiring the applicant because of his or her sexual preferences.

Seventh, and more generally, a measure of privacy is necessary simply in order for a person to pursue his or her projects, whatever those projects might be. For one thing, reflection is necessary for planning, and reflection requires a degree of freedom from the intrusions of others (i.e., a degree of privacy). For another, knowledge of someone else s plans can enable those plans to be thwarted. Autonomy , including the exercise of autonomy in the public sphere, requires a measure of privacy.

Eighth, the sphere of an individual s privacy can be widened to include other individuals who stand in a professional relationship to the first individual. Here, part of the sphere of an individual s privacy (e.g., the bodily state of a sick person) is widened to include another person (e.g., the person s doctor), and the result is a confidential relationship. An analogous point can be made in relation to lawyers and clients , and police and victims of crimes who are also witnesses to those crimes.

Ninth, the data owned and actions performed by organisations and groups, including businesses and government agencies, or by individual persons in their capacity as members of organisations or groups, may also be regarded as private, or at least confidential. For example, a business company needs a measure of confidentiality in relation to its plans, if it is to compete on equal terms in the marketplace . Again, law enforcement agencies must retain confidential information in relation to the activities of criminal organisations if they are to successfully investigate those organisations.

Tenth, the notion that privacy is an absolute right that cannot be overridden under any circumstances is unsustainable. The rights to privacy of some individuals, and the right to confidentiality of members of some organisations, will in some cases be overridden by the rights of other individuals and other members of organisations to be protected by the law enforcement agencies from rights violations, including murder, rape, grievous bodily harm, paedophilia, and armed robbery.

^{[ 1]} For an earlier version of the material in this section see Miller (1997).