Privacy in a Technological Age
|by Dr. Rob Reilly
Regular contributor to the Gazette
March 1, 2008
Let me step back in time and review the evolution of our concept of privacy. Privacy is not mentioned in the U.S. Constitution but over the years courts have noted its presence and privacy has thus evolved. The concept of 'privacy' first came to our national attention via a Harvard Law Review article written by Samuel Warren and Louis Brandeis in 18902 entitled The Right to Privacy, which essentially described the right to privacy as "the right to be let alone."3 This article has become the seminal document from which 'privacy' has flowed. According to Shapiro, The Right to Privacy is the most cited law review article.4
In their day Warren and Brandeis were confronted with similar issues---expanding the understanding needed to craft/broaden statutes to accommodate new technology. Today, just as Warren and Brandeis did, we are dealing with technology that is moving beyond the current scope and understanding of existing statutes. It is therefore quite important to revisit this seminal law review article and follow Warren and Brandeis's lines of reasoning so that we may apply their thinking to today's quandaries and dilemmas.
When our nation began, the law provided legal remedy only for actual "physical interference with life and property, for trespasses."7 Warren and Brandeis believed that the concept that the "individual [should] have full protection in person and in property is a principle as old as the common law."8 They also state that it is necessary "from time to time to define anew the exact nature and extent of such protection."9 Warren and Brandeis were attempting to lay a foundation to allow the existing legal philosophy to grow to accommodate changing circumstances.
The Right to Privacy of the Modern Day
The state and federal legislatures have attempted to deal with the issue of 'privacy' but there have been problems. Many of those problems flow from a lack of understanding of what 'privacy' was intended to do. So the problem in legislating policy is to define and protect privacy and that it is difficult because it is difficult to conceptualize privacy.
Authors of philosophical and legal works about privacy emphasize that their subject is difficult to define.10 Alan Westin's book Privacy and Freedom begins: "Few values so fundamental to society as privacy have been left so undefined in social theory or have been the subject of such vague and confused writing by social scientists."11 Judith Jarvis Thompson's article The Right to Privacy opens: "Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is."12 Similarly, C. Herman Pritchett, in his forward to David O' Brien's book Privacy, Law, and Public Policy states: "Privacy is a confusing and complicated idea."13 "These difficulties in conceptualizing privacy not only are of philosophical importance but also have profound implications for the formulation of public policy to protect privacy."14 In the American tradition, there are "two types of rights---civil liberties and civil rights. Privacy is defined as a civil liberty---a right to be free of outside interference,"15 or as Berlin terms it, a "negative liberty."16 Vincent Samar also makes the point that "legal privacy is a species of negative freedom"17---if you have 'privacy' then you have a self-imposed state of seclusion---the opposite of 'privacy.' If you have 'privacy' then you are removed from the public---some may argue that 'privacy' is the opposite of 'freedom'---if you're in one state you can't be in the other.
Defining a problem in terms of rights has been a potential resource for many issues - civil rights, women's rights, rights of the disabled. But these issues involve rights to some benefit of status and are defined not in terms of an atomistic individual but an individual as a member of a group.18 Because privacy is seen as an individual interest and choice, ambiguities about its meaning exist. It is assumed that different people define privacy differently. Tien notes that "[p]rivacy can be a huge can of worms ¼ analyzing it as a conceptual problem ¼ often becomes a mess of conflicting statements that everyone agrees on."19
Bruce Sterling states that: "Cyberspace demand[s] a new set of metaphors, rules and behaviors."20 The problem is that 'privacy' is not a legal issue, it's really a matter of civility. It's a matter of a person adhering to a social contract, which law does not encompass, let alone enforce. The law is too weak, by its nature, to be able to fully encompass matters of civility. We can't look to the law to create privacy protections that actually work. People respect our privacy and if they don't it's not a legal matter, it's a civility issue. So long as we believe that the law is the mechanism that will protect our 'privacy' we will be forever frustrated, dissatisfied, and disappointed. We must begin to view the concept of 'privacy' in another light. We cannot expect that companies will enforce their privacy policies, we must be aware that to insure our own 'privacy' we should assume the responsibility to safeguard our personal information from anyone we do not wish to have it. We must also assume that giving any information to entities on the Web will cause them to propagate to thousands of other places.