Abstract
This article offers an account of the basis of the right to privacy that gives it stronger unity than the accounts currently available. It does so by showing that privacy is necessary for responsibility: one cannot assume responsibility for something without first articulating what it is that one is assuming responsibility for, and the right to privacy protects the “drafting space” in which to articulate it. This implies that we all have a direct stake in each other’s privacy, unlike other accounts of privacy, which focus on why one’s privacy is desirable to oneself. The article then proceeds to show how thinking about the right to privacy in this way can explain some of its features that otherwise appear puzzling and how it provides a theoretical tool for dealing with problems that involve privacy.
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Notes
- 1.
See Restatement (Second) of Torts §§652A-652E; this fourfold division of the common-law tort of privacy invasion was first articulated in Prosser (1960).
- 2.
For example, W. A. Parent’s analysis of privacy as “the condition of not having undocumented personal knowledge about one possessed by others” (1983, p. 269) is consistent with some of its uses in the law of torts, but inconsistent with others, and also with the constitutional cases about contraception, abortion, and similar matters; Parent explicitly criticizes such uses of the term “privacy” (Ibid., pp. 282–286). Julie C. Inness, on the other hand, argued that “privacy is the state of the agent having control over a realm of intimacy,” (1992, p. 56) which fits very well the constitutional doctrine of privacy in the matters of sexuality and procreation, but forces one to dismiss, for example, the claim that citizens have the right to privacy with respect to their banking records, as not really involving privacy at all.
- 3.
Such an account is that of Nissenbaum (2010), according to which the norms of privacy are to be understood in terms “contextual integrity,” that is, respect for the values, ends, and purposes of the relevant social contexts. Stated in general terms, her account is applicable to a wide range of uses of “privacy,” but its specific applications get their content from the values, ends, and purposes that differ from context to context; the account implies that there isn’t a single substantive value that underlies privacy. Daniel Solove has similarly taken the position that “there is no overarching value of privacy,” that “the value of privacy emerges from the activities that it protects” (2008, p. 98), but that it still makes sense to use the concept of privacy as we do, because its many different uses are related by family resemblances (Ibid., pp. 40, 42–44, 172; Solove 2007, p. 756).
- 4.
What would render this meaningless is that you have, in a way, already “sent” everything to the recipient.
- 5.
If you question a person about the letter he has sent you and he says “I didn’t really mean it,” we normally expect him to follow that up with an explanation that would show that there was something aberrational about the circumstances in which the letter was written (e.g. “I was in great rush,” “I was drunk,” “I am not fluent in this language”). In the absence of some such explanation we would find “I didn’t really mean it” bewildering. That shows that the very notion of a letter involves an assumption of responsibility.
- 6.
Even in a simple case in which one writes a letter and right away sends it out, without any revising and rewriting, there is a point after writing, and before sending, at which one briefly contemplates what one has written and says to oneself something like “Yes! This is exactly the letter that I want to send”; the writing before that point was a draft in that one could have revised it.
- 7.
Needless to say, the argument of this paragraph only shows that insofar as there are rights to contraception and abortion, these rights can be so conceptualized. Whether, all things considered, there are such rights, and what their extent is, if they do exist, is an issue outside the topic of this article. Also, I am not arguing here that this is, for all ends and purposes, the best way of thinking about these rights, but only that we can, in this way, make sense of their being so conceptualized in the law, as it actually is.
- 8.
The right to privacy, understood in general terms, is thus not culture-bound, although the specific shape that it takes in a particular society may, of course, depend on the conventions of that society.
- 9.
Cf. Kupfer (1987, p. 87). Kupfer’s analysis of privacy in terms of autonomy generally has a great deal of affinity with the one defended here. Using “responsibility” rather than “autonomy,” as the central term in the analysis, however, makes it possible to base the case for respecting privacy in the compelling conceptual point that one cannot assume responsibility for something without first articulating what it is.
References
Inness JC (1992) Privacy, intimacy, and isolation. Oxford University Press, New York
Kupfer J (1987) Privacy, autonomy, and self-concept. Am Philos Q 24:81–89
Nissenbaum H (2010) Privacy in context: technology, policy, and the integrity of social life. Stanford Law Books, Stanford
Parent WA (1983) Privacy, morality, and the law. Philos Public Aff 12:269–288
Prosser WL (1960) Privacy. Calif Law Rev 48:383–423
Solove DJ (2007) “I’ve got nothing to hide” and other misunderstandings of privacy. San Diego Law Rev 44:745–772
Solove DJ (2008) Understanding privacy. Harvard University Press, Cambridge
Thomson JJ (1975) The right to privacy. Philos Public Aff 4:295–314
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Hajdin, M. (2018). Privacy and Responsibility. 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_5
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