Abstract
I argue in this chapter that it may not be reasonable for a person committing a criminal act to expect privacy in relation to the act. This is not because the person’s reasonable expectation of privacy or right to privacy in this case is defeated by some other considerations. My point is that she does not have legitimate interests to be served by having control of access to information in relation to the crime. Nor is there such a thing as a zone of privacy in a fundamental sense that covers her claim to privacy in relation to the criminal act simply because it takes place in that zone. However, I argue that a criminal does have reasonable expectation of privacy in a derivative way because of our concerns about unfettered discretion to be exercised by the government. My skeptical argument echoes some feminist critiques of the right to privacy but does not disparage such a right entirely. I argue that there is nevertheless a gender disparity in the social costs of privacy rights.
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Notes
- 1.
X-ray images used to be things when they were stored on films. Now they are only electronic data stored somewhere.
- 2.
Richard B. Parker’s contribution to the subject is his proposal of a definition of privacy in terms of “control over when and by whom the various parts of us can be sensed by others” (1974, p. 281, italics his). However, to cover all the cases we consider matters of privacy, such as wiretapping, Parker has to stretch the meaning of “parts of us” and “sensed.” By contrast, the problem with my informational approach is that I have to stretch the meaning of “information” to cover privacy cases handled better by his definition—cases involving, for example, being touched by another person without one’s consent. Parker aptly illustrates his point with the example of a peep of oneself in the nude by one’s lover who is already familiar with one’s body in the nude as a case of loss of privacy, but not much of loss of control of information about oneself (Ibid., 280).
- 3.
An example of a stipulation by law to create a zone of privacy is the legally privileged communication between a criminal and her attorney.
- 4.
This represents not only a common-sense approach to privacy, but also the court’s approach in some cases. The main difference is that in making a determination about a zone of privacy, the court often relies on constitutional provisions or phrases specified in terms of constitutional provisions. In Griswold, the Court writes, “The present case . . . involves a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. . . . 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 marital relationship.” Martial bedroom and marital relationship are both treated as zones of privacy here.
- 5.
This is by no means an exhaustive list of what counts as a zone of privacy.
- 6.
What I have said here, however, should not be construed as taking side with Thomson against Scanlon in the Thomson–Scanlon debate about whether privacy (in the informational sense as I have described) concerns are really a mixed bag of concerns about something else, such as property rights. I agree with Scanlon that in fact privacy concerns are a group of concerns about something distinctive. This, however, in my view, does not imply that the interests that individual have in each member of this distinctive group of concerns are necessarily the same or even sufficiently similar. For the Thomson–Scanlon debate, see Thomson (1975) and Scanlon (1975).
- 7.
One might be tempted to think whether it is ridiculous to demand privacy in committing a crime depends on the seriousness of the crime. In my view, it does not matter. If it is not murder, but making some minor fraudulent claims on one’s income tax return while completing it at home, it would still make little sense to demand privacy in doing so and not only because it is unnecessary. In my view, what seems troubling about such privacy demands is that normative expectations (of privacy) are used to facilitate the commission of a crime. I am grateful to Mark Navin for bringing up this issue.
- 8.
In his dissent in Greenwood, Justice Brennan seems to be making this point, especially if we read his use of the word “possibility” to mean “probability” or “likelihood.”
- 9.
My treatment of bodily cavities here might not be satisfactory. It shows that our privacy concerns about intrusions into our body are more than a just a matter of control of access to information even in a broad sense. Parker (1974) might handle this kind of privacy better than my approach by appealing to privacy as the kind of control about when and by whom one’s body may be “sensed” without one’s consent.
- 10.
Catherine MacKinnon, for example, thinks that this is precisely what the right to privacy allows men to do. She writes, “The right to privacy is a right of men “to be let alone” to oppress women one at a time. . . . It polices the division between public and private, a very material division that keeps the private beyond public redress and depoliticizes women’s subjection within it” (1989, p. 194).
- 11.
Bureau of Justice Statistics of the U.S. Department of Justice reports that in 2010, men and women were victims of violence at about the same rate (2,510,530 cases for men compared to 2,425,460 cases for women). However, 636,730 of the cases that victimized women were committed by intimate partners compared to only 136,660 of the cases that victimized men (2013, p. 9).
- 12.
Susan Okin, for example, writes, “There is now no doubt that family violence, as it affects both wives and children, is closely connected with differentials of power and dependency between the sexes. . . . As feminists have pointed out, in many respects the notion that the state intervention in the family should be minimized has often served to reinforce the power of its economically or physically more powerful members. The privacy of home can be a dangerous place, especially for women and children” (1989, p. 129).
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Acknowledgements
I am grateful to the two editors of this volume, Ann Cudd and Mark Navin, for their comments and suggestions for the revision of this chapter. I would also like to thank Deirdre Golash for some very instructive conversations on the subject and her written comments on an earlier draft.
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Lee, Wc. (2018). Criminal Acts, Reasonable Expectation of Privacy, and the Private/Public Split. In: Cudd, A., Navin, M. (eds) Core Concepts and Contemporary Issues in Privacy. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-74639-5_17
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