## 1. The History of Privacy



To understand the history of privacy, one must first consider


1. the history of the distinction between the private and the public
sphere, in both ancient and modern liberal thought;
2. conceptualizations of informational privacy; and
3. the history of a legal right to privacy.



These notions are all connected. Separating them here is done
principally for heuristic reasons.


### 1.1 The History of Conceptualizing the Private Sphere



Aristotle's distinction between the public sphere of politics
and political activity, the *polis*, and the private or
domestic sphere of the family, the *oikos*, is the starting
point for philosophical discussions of privacy (*Politics*
1253b, 1259b). Aristotle's classic articulation of the private
domain is one of necessity, restriction, confinement, and subjection
to the laws of nature and reproduction. For Aristotle (and for a
modern Aristotelian such as Hannah Arendt), there is a clear social
ontology that makes it seem natural for certain things, persons and
activities to be regarded as private, and others as public. The
private domain is the domain of the household,



> 
> 
> the sphere where the necessities of life, of individual survival as
> well as of continuity of the species, [are] taken care of and
> guaranteed. (Arendt 1958 [1998: 45])
> 
> 
> 



Although there has been persistent concern for domestic privacy
throughout history and across many cultures (in cultural theory and
[art] history, for instance; see Aries 1960 [1962];
Aries & Duby 1985&1987; Vincent 2016), in
*philosophical* theory there remains a research-gap between
Aristotle's theory of privacy and the classical liberal theory,
starting with Hobbes and Locke. This is in contrast to
*(art-)historical* analyses, which comprehensively consider
domestic privacy from the early Middle Ages until the early twentieth
century (see especially the very informative Vincent 2016).



In liberal theory, the public/private distinction is taken to refer to
the appropriate realm of governmental authority as opposed to the
realm reserved for self-regulation, along the lines initially analyzed
by Locke in his *Second Treatise on Government* (Locke 1690),
and later by John Stuart Mill in his essay *On Liberty* (Mill
1859). The distinction arises again in Locke's discussion of
property, which can also be found in his *Second Treatise*. In
the state of nature, all the world's bounty is held in common
and is in that sense public. But one possesses oneself and one's
own body, and one can also acquire property by combining one's
labor with it. These cases are considered one's private
property. In the liberal tradition, Rawls also distinguishes between
the private (which includes the domestic sphere) and the public.



As will be discussed in
 SS2,
 classical liberal theory from Hobbes and Locke to Rawls, together
with the naturalistic distinction between the private-as-domestic and
the public, has been criticized by feminist and contemporary liberal
thinkers. That the division between the private and the public is
*always* conventional (and not natural) in character, has been
maintained by almost all theories of privacy dating from the last five
or so decades. New approaches to the theory of privacy call for a
redescription of the private, and a reformulation of the idea of equal
rights to privacy and freedom that is no longer inconsistent with the
principles of a liberal democracy based on equal rights (Allen 1988
& 1989; Jean Cohen 1992 and 2002; see also
 SS3
 below).


### 1.2 The History of Informational Privacy



The recent history of the moral right to *informational*
privacy is linked to the liberal discourse on privacy and freedom. It
found its start with a well-known essay by Samuel Warren and Louis
Brandeis, "The Right to Privacy" (1890; see also Gordon
1960; Prosser 1960; Glancy 1979; Keulen & Kroeze 2018: 32 and
44-45; Sax 2018: 147-150). Citing "political,
social, and economic changes" and a recognition of "the
right to be let alone", which counts as the first definition of
informational privacy, Warren and Brandeis argued that existing law
afforded a way to protect the privacy of the individual, and they
sought to explain the nature and extent of that protection (1890:
193). Focusing in large part on increasing levels of publicity enabled
by the burgeoning newspaper industry and recent inventions such as
photography, they emphasized the invasion of privacy brought about by
the public dissemination of details relating to a person's
private life. Warren and Brandeis felt that a variety of existing
cases could be protected under a more general right to privacy, which
would safeguard the extent to which one's thoughts, sentiments,
and emotions could be shared publicly by others. Urging that they were
not attempting to protect any items or intellectual property produced,
but rather the peace of mind attained by such protection, they claimed
that the right to privacy was based on a principle of "inviolate
personality", which was part of a general right to the immunity
of the person, "the right to one's personality"
(1890: 195 and 215).



Warren and Brandeis believed that the privacy principle was already
part of common law dealing with the protection of one's home,
but new technology made it important to explicitly and separately
recognize this protection under the name of a right to privacy. They
suggested that limitations on this right could be determined by
analogy with the law of defamation and slander, and it would not
prevent publication of information about public officials running for
office, for example. Warren and Brandeis thus laid the foundation for
a concept of a right to privacy that has become known as the right to
control over information about oneself; their central and most
influential concept remains the *right to be left alone* (1890:
193).



Although the first legal privacy cases after the publication of their
paper did not recognize a right to privacy, it wasn't long
before public discourse, as well as both state and federal courts in
the US, were endorsing and expanding that right. In an attempt to
systematize and more clearly describe and define the new right of
privacy being upheld in tort law, William Prosser wrote that what had
emerged were four different *interests in privacy*:


1. intrusion into a person's seclusion or solitude, or into his
private affairs;
2. public disclosure of embarrassing private facts about an
individual;
3. publicity placing one in a false light in the public eye; and
4. appropriation of one's likeness for the advantage of another
(1960: 389).



One could say that Prosser's approach is in fact a legal one,
since he is examining the right to privacy in tort law.



The history of informational privacy is rather short, as we saw, and
although many developments have taken place since the 1960s, these are
better discussed in the next section, as well as the systematic
sections later in this article (but see Igo [2018] for a general
overview of the modern American history).


### 1.3 History of Legal Protection



During the twentieth century, the right to privacy was advanced to the
status of a human right. It was a completely novel entry into the
catalog contained in the Universal Declaration of Human Rights, and it
is unusual in lacking any predecessors in state constitutions or basic
laws. As Diggelmann and Cleis (2014: 441) have pointed out, "the
right's potential was dramatically underestimated at the time of
its creation". Having originated in a somewhat accidental
manner, the right to privacy has since become one of the most
important human rights (Weil 1963; Volio 1981; Michael 1994; Feldman
1997; Richardson 2017). Article 12 of the 1948 *Universal
Declaration of Human Rights* reads:



> 
> 
> No one shall be subjected to arbitrary interference with his privacy,
> family, home or correspondence, nor to attacks upon his honour and
> reputation. Everyone has the right to the protection of the law
> against such interference or attacks.
> 
> 
> 



20 years later, the same right was enshrined by Article 17, Paragraph
1 of the *International Covenant on Civil and Political Rights*
(1966), albeit in slightly different terms.



Turning our focus to the history of a right to privacy in Europe in
particular, Article 8 of the *European Convention on Human
Rights*, drafted in 1950, reads somewhat differently while
expressing the same idea:



> 
> 
> Everyone has the right to respect for his private and family life, his
> home and his correspondence.
> 
> 
> 



In 1981, the *Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data* (Convention 108)
provided specific rules for the protection of personal data (Dalla
Corte 2020: 125). In 2000, with the *Charter of Fundamental Rights
of the European Union*, there was for the first time a formal
differentiation between the two rights: a right to privacy on the one
hand, and a right to the protection of personal data on the other.
This formal distinction was the first in an international declaration
of rights. Article 7 of the *Charter* provides a right to
"respect for private and family life", and Article 8
provides a right to the "protection of personal data" (see
also Gonzalez Fuster 2014). The latter plays an important role
in securing the right to informational privacy.



Further examination of the history of the rights to privacy and data
protection in Europe, reveals several important developments. The
first of these was the step taken in 1983 by the Federal
Constitutional Court of Germany. In its landmark decision on the
constitutionality of the 1983 Census Act, the judgment (BVerfG 65,
1(43)) was influential in designating the right to privacy as
*informational self-determination*. The ruling stated that



> 
> 
> [if] individuals cannot, with sufficient certainty, determine what
> kind of personal information is known to certain parts of their social
> environment, and if it is difficult to ascertain what kind of
> information potential communication partners are privy to, this could
> greatly impede their freedom to make self-determined plans or
> decisions. A societal order, and its underlying legal order, would not
> be compatible with the right to informational self-determination if
> citizens were no longer able to tell who knows what kind of personal
> information about them, at what time and on which occasion.
> 
> 
> 



The next important step was taken in 1995, with the adoption of the
*Data Protection Directive by the European Union*, which was a
legally binding directive (Directive 95/46/EC) adopted by EU member
states. The purpose of this directive was twofold: to harmonize data
protection laws, so as to facilitate cross-border trade by companies,
and to protect people's rights and freedoms when their personal
data are used. Thus, the directive was largely based on the rationale
of market integration. In 2016, the Data Protection Directive was
followed up in Europe by the General Data Protection Regulation
(GDPR). The GDPR has been in law since 2016, but its provisions became
enforceable only in 2018. The GDPR is the most consequential
regulatory development in information policy in decades (see
Lindroos-Hovinheimo 2021), imposing significant fines on companies
that fail to comply. As Hoofnagle et al. (2019) explain, the GDPR
brings personal data into a complex and protective regulatory regime.
Many data protection principles (for instance about data security)
have been incorporated into US law as well, albeit mostly in Federal
Trade Commission settlements with companies (Hoofnagle et al.
2019).



The juridification and jurisdiction in the US, especially concerning a
constitutional right to privacy, has taken a very different course. On
the one hand, there have been many advances with respect to laws
protecting informational privacy. While US data protection law is
fragmented, there have been recent developments that may result in
closer alignment with EU law (e.g., the California Consumer Privacy
Act of 2018 and the American Data Privacy and Protection Act--the
latter being a Bill introduced in the US House of Representatives in
2022).



On the other hand, the most significant focus in US law is on
*decisional* privacy, the right to make decisions (here with
respect to one's body) without interference from others, i.e.,
on same-sex marriage and abortion. In 1965, a right to privacy,
independent of informational privacy and the Fourth Amendment, was
recognized explicitly by the Supreme Court. It has commonly been
referred to as the constitutional right to privacy. The right was
first recognized in *Griswold v. Connecticut* (381 U.S. 479),
which overturned the convictions of the Director of Planned Parenthood
and a doctor at Yale Medical School for dispersing
contraceptive-related information, instruction, and medical advice to
married persons. Justice Brennan's explanation contained the now
famous sentence:



> 
> 
> The *right to privacy* gives an *individual*, married or
> single, the right to be free from unwarranted governmental intrusion
> into matters so fundamentally affecting a person *as the decision
> whether to bear or beget a child.*
> 
> 
> 



The constitutional right to privacy was described by Justice William
O. Douglas as protecting a zone of privacy covering the social
institution of marriage and the sexual relations of married persons.
(For further commentary, see Allen 1988; Jean Cohen 1992; Inness 1992;
Tribe 1990; DeCew 1997; Turkington & Allen 1999.)



Despite controversy over Douglas's opinion, the constitutional
privacy right was soon relied on to overturn a prohibition on
interracial marriage, to allow individuals to possess obscene matter
in their own homes, and to allow the distribution of contraceptive
devices to individuals, both married and single. However, the most
famous application of this right to privacy was as one justification
for a woman's right to have an abortion, a right defended in the
1973 judgment of *Roe v. Wade* (410 U.S. 113). It has since
been used in subsequent legal decisions on abortion. As the
explanation formulated by Justice Blackmun famously put it,



> 
> 
> this right of privacy... is broad enough to encompass a
> woman's decision whether or not to terminate her pregnancy.
> (*Roe v. Wade*, 410 U.S. 113 [1973]: 153; see Dworkin 1994)
> 
> 
> 



Bork (1990), however, views the *Griswold v. Connecticut*
decision as an attempt by the Supreme Court to take a side on a social
and cultural issue, and as an example of bad constitutional law (for
criticism of Bork's view, see Inness 1992; Schoeman 1992;
Johnson 1994; DeCew 1997).



Regardless of anything else it might be, the right to privacy was seen
as a right that incorporates reproductive liberties. Precisely which
personal decisions regarding reproductive liberties have been
protected by this right to privacy has varied depending on the makeup
of the Court at any given time. For example, in the 1986 *Bowers v.
Hardwick* judgment (478 U.S. 186; Subsequently overturned in
*Lawrence v. Texas* 2003), it was decided that this right did
not render anti-sodomy laws in Georgia unconstitutional, despite the
intimate sexual relations involved.



In June 2022, in *Dobbs v. Jackson Women's Health
Organization* (No. 19-1392, 597 U.S.), the Supreme Court (then
with a majority of Conservative judges) overruled its previous
decision in *Roe v. Wade* and *Planned Parenthood v.
Casey* (505 U.S. 833 [1992]). The majority argued that abortion
cannot be counted as a constitutional right, since the constitution
does not mention it, and abortion was not "deeply rooted"
in American history. More specifically, the court argued that the
right to privacy implied by the Fourteenth Amendment does not include
a woman's right to abortion. As a consequence of *Dobbs v.
Jackson Women's Health Organization*, individual states have
the power to regulate access to abortion (see Tribe 2022).



Note that the debate in the US is mostly focused on aspects of
decisional privacy. In Europe, the right to same sex marriage, as well
as the right to abortion, are conceived of as rights to personal
freedom, and have therefore not been discussed in the context of
theories of privacy. (For further commentary on this difference, see
 SS3.)


## 2. Critiques of Privacy


### 2.1 Thomson's Reductionism



*Reductionists* are named for their view that privacy concerns
are analyzable or reducible to claims of other sorts, such as
infliction of emotional distress or property interests. They deny that
there is anything useful in considering privacy as a separate concept.
Reductionists conclude, then, that there is nothing coherent,
distinctive or illuminating about privacy interests. Probably the most
famous fundamental critique of a right to privacy stems from the work
of Judith Jarvis Thomson (1975). Having noted that there is little
agreement on exactly what a right to privacy entails, Thomson examines
a number of cases that have been thought to constitute violations of
the right to privacy. On closer inspection, however, Thomson argues
all those cases can be adequately and equally well-explained in terms
of violations of property rights or rights over the person, such as a
right not to be listened to. Ultimately the right to privacy, on
Thomson's view, is merely a cluster of rights, consisting of
several irreducible "grand rights" (for instance, the
right to property), and a number of reducible "ungrand
rights" (such as the right not to be subjected to eavesdropping,
the right to keep one's belongings out of view, and so on). The
"right over one's own person" consists of several
ungrand rights, such as (amongst others) the right not to be looked
at--but is itself not a grand right (Thomson 1975:
304-306). The different rights in the cluster can be fully
explained by, for instance, property rights or rights to bodily
security. Therefore, the right to privacy, in Thomson's view, is
"derivative" in the sense that there is no need to find
what is common in the cluster of privacy rights, and it is also
derivative in its importance and justification. Any privacy violation
is better understood as the violation of a more basic right, e.g., the
right not to be listened to.



This reductionist view was quickly discarded by Thomas Scanlon, who
argues in a direct reply to Thomson's thesis that we have, for
instance, a general right not to be looked at that



> 
> 
> [a]s far as I can see I have no such general rights to begin with. I
> have an *interest* not to be looked at when I wish not to be
> (...). But rights directly corresponding to these interests would
> be too broad to be part of a workable system. (1975: 320)
> 
> 
> 



The right to privacy is grounded in "the special interests that
we have in being able to be free from certain kinds of
intrusions" (Scanlon 1975: 315). Scanlon's reply to
Thomson can be read as an attempt to find a common ground for
different aspects of privacy (DeCew 1997; Rachels 1975; Reiman 1976;
Gavison 1980; see also
 SS3
 and
 SS4).



Raymond Geuss (2001), on the other hand, seconds Thomson's
reductionist line of criticism but adds to it a more fundamental
consideration:



> 
> 
> Judith Jarvis Thomson has argued very persuasively that this right
> does not exist in the sense that it fails to designate any kind of
> coherent single property or single interest. That does not mean that
> none of the various things that have come to be grouped under
> "privacy" are goods--far from it, many of them are
> extremely important and valuable--only that they are disparate
> goods, and the perfectly adequate grounds we have for trying to
> promote them have little to do with one another. (2001: 145)
> 
> 
> 



The very distinction between private and public, he argues, already
relies on the assumption that there exists a unified liberal
distinction that is set in stone politically, and uncontested. But
this assumption displays not only a mistaken conception of the
distinction between public and private, but also a mistaken conception
of politics. In "real politics", all distinctions and
values are contested. As a result, the liberal distinction is illusory
and ideological. According to Geuss, this becomes apparent only when
one recognizes the deep heterogeneity of privacy, its reducibility to
other interests, and the plurality of very different values attached
to its various meanings (Geuss 2001).


### 2.2 Posner's Economic Critique



Richard Posner (1978) also presents a critical account of privacy. He
argues that from an economic perspective, we should not assign a
property right to the personal information of individuals, when doing
so leads to economic inefficiencies. This theoretical claim is linked
to an empirical claim that common law follows a similar economic
logic. Posner does not appear to deny that there is something that we
can call "privacy" and a "right to privacy".
Instead, he argues that the notion of privacy should be attributed in
a different way, following an economic analysis of the distribution of
property rights to personal information. Strictly speaking, then,
Posner does not present a fundamental critique of privacy, but rather
an account of privacy which is based on considerations of economic
efficiency, and he argues that privacy is protected in ways that are
economically inefficient. With respect to information, in
Posner's view privacy should only be protected when access to
personal information would reduce its value (for example, allowing
students access to their letters of recommendation makes those letters
less reliable and thus less valuable, and hence they should remain
confidential or private). Focusing on privacy as control over
information about oneself, Posner argues that concealment or the
selective disclosure of information is often used to mislead or
manipulate others, or for private economic gain. The protection of
individual privacy is therefore less defensible than others suppose,
because it does not maximize wealth.


### 2.3 The Communitarian Critique



Communitarian approaches find it suspicious that many recent theories
of privacy rely on the concept of individual (negative) freedom as the
raison d'etre for privacy, and it is this connection
between privacy and freedom or autonomy that is called into question
(see Roessler 2008: 699). Privacy in communitarian thought is instead
conceived of as a realm or dimension of life concerned with specific
*practices*, also (or even primarily) relevant to the community
at large. Accordingly, these practices must be understood not as a
realm to which the individual has a claim *qua* autonomous
being, but as one conceded to the individual as a member of the
community (Sandel 1982; Elshtain 1995; Etzioni 1999 & 2004).



The idea underlying the communitarian point of view, particularly that
of Sandel (1982), is that liberal theories of privacy necessarily
conceive the self as disembodied and egocentric in nature. This is not
only inconsistent in epistemological terms but also normatively
undesirable from a political perspective, because communities and
communal practices already take priority over the formation of
individual identity. Communitarians therefore claim that privacy
should not primarily be understood as an individual right to (physical
or sexual) self-determination, but rather as protection given to
practices that depend on being sheltered from the view of others
(Etzioni 1999: 183; 2004: 30). Etzioni's concept of privacy
comprises its decisional, informational, as well as local (the privacy
of the home) aspects (Etzioni 1999). The communitarian viewpoint has
been criticized, however (e.g., Jean Cohen 2002: 42). These critics
argue that it is incorrect to hold that a theory of privacy based on
the idea of individual freedom and autonomy cannot at the same time
conceive of the self as relational in nature, and as constituted and
contextualized in a variety of respects. Feminist theories of privacy
insist that individual rights come before communal duties, because it
is otherwise impossible to guarantee *equal* freedom to take
decisions pertaining to one's life and one's body. In
particular, communal practices and traditions may prove repressive and
discriminatory, making an individual right to privacy indispensable
(Allen 1988: 700; Fraser 1992; Morris 2000).


### 2.4 The Feminist Critique



The feminist critique of the theorization of the private sphere starts
by questioning the idea of the realm of privacy as that of the
natural, of women, feelings, hearth and home, and of emotional care
for the male members of society, as well as the raising of children.
The "natural" coding of the separation between private and
public, therefore, is one which follows precisely the borderline
separation of the sexes (Okin 1989; Pateman 1989; Phillips 1991; Jean
Cohen 1992; Fraser 1992; Landes 1998; DeCew 2015). The target of this
feminist critique is classical liberalism, and it has been
influential. Rawls--the most influential liberal thinker of the
twentieth century--accepted at least part of this criticism as
justified, and he revised his own theory as a result (Rawls 2001:
166).



However, in classical liberal theory there is a double interpretation
of the private domestic realm. On the one hand, the private domain is
valued positively as the domestic sphere that is sheltered; on the
other hand, the private sphere is the sphere of women and therefore
inferior to the public sphere, according to the coding of a
patriarchal society. As a result, the domestic sphere (including the
family) is valued and prized as the realm that is sheltered from the
demands of a hostile world. However, it is associated with
"women", while the public sphere is associated with
"men". The private is thus characterized as inferior to
the public, just as nature is considered inferior in relation to
culture (Okin 1991).



In the history of privacy, we are confronted with yet another double
reading: even though liberal theory since Hobbes and Locke has
advocated equal liberties for all citizens, it has clung to a natural
conception of privacy that patently contradicts the notion of equal
rights. This is because it grants those rights to men only, and not to
women (Locke 1690; Hobbes 1651). As feminist theory has argued, this
seems to have little to do with nature and more to do with power and
culture. Seen in purely normative terms, nature provides us with no
argument as to why certain activities (or persons) should be
considered "private", and others "public"
(Pateman 1989; Phillips 1991; Jean Cohen 1992; Fraser 1992; Ortner
1974 [1998]). The classical liberal moral (and later also legal) right
to privacy and private freedom has to be separated from the natural
interpretation, which is still looms large in the background of
everyday culture.



It is necessary to examine the feminist critique from yet another
angle. In principle, early radical egalitarian feminist approaches are
skeptical with respect to *any* possible conceptualization of
privacy. The best-known of these skeptical approaches is the one
developed by MacKinnon (1987, 1989, 1991; see also Olsen 1991). For
MacKinnon, the appeal to legal or moral rights to privacy is but a
further manifestation of the attempt to push women back into an
ideologically constituted realm of privacy defined as the
non-political or pre-political, and only ever concede them rights
insofar as they are seen as different or deviant. Privacy can be
dangerous for women when it is used to cover up repression and
physical harm inflicted on them, perpetuating the subjection of women
in the domestic sphere and encouraging non-intervention by the state.
Such a concept of privacy, according to MacKinnon, fails to call the
sexual hierarchy into question. Instead, it simply preserves the
social power structures that find expression in the correlation of
women with the private, and men with the public.



In response to MacKinnon's argument, one objection is that it
fails to make a clear enough distinction between a natural,
pre-political concept of privacy on the one hand (which is rejected
not only by MacKinnon herself, but also by other theories of privacy)
and a legal-conventional concept of privacy on the other (Allen 1988;
Jean Cohen 1992). A more reasonable view, according to Anita Allen
(1988), is to recognize that while privacy can be used as a shield for
abuse, it is unacceptable to reject privacy completely based on harm
done in private (see also DeCew 1997: 86). A complete rejection of
privacy would result in everything being made public, leaving the
domestic sphere open to complete scrutiny and intrusion by the state.
Allen and other theorists (such as Pateman 1989: 118-136; see
especially Jean Cohen 1992) suggest that societies in general, as well
as traditional conceptual divisions between the private and the
public, can be criticized and revised (or, as Cohen [1992] puts it,
"redescribed"). Therefore, feminists should adopt a
concept of privacy that is *not* in the gender-specific,
natural tradition, but is instead oriented towards the notion of
freedom (see Allen 1988). The challenge is to find a way for the state
to take seriously the domestic abuse that used to be allowed in the
name of privacy, while also preventing the state from imposing itself
onto the most intimate parts of women's lives. This means
drawing new boundaries for justified state intervention, and thus
understanding the public/private distinction in new ways (see
 SS3
 and
 SS4
 below).



Another feminist perspective on privacy is related to the critique of
liberalism in a different way. The approaches to privacy that are
linked to freedom and autonomy have been criticized from the
perspective of a *theory of power* (Brown 1995; Cornell 1995).
Skepticism towards such approaches arises because they follow from,
and are consonant with, other (liberal) dichotomies (such as
subject-object or having rights or no rights) that are thought to be
essentially exclusionary and discriminatory. It is further argued that
such conceptions fail to take into account and criticize the power
structures inherent in society, which are therefore also inherent in
the structures protecting privacy.



Feminist approaches are far from homogeneous. They range from examples
that appear to reject any conceptualization of privacy whatsoever
(e.g., Brown 1995; see also the different but equally critical
perspective on liberal conceptualizations in Geuss 2001), to those
that propose alternative ways of determining privacy, as is the case
with Morris, who discussing Pitkin (1981) argues that



> 
> 
> privacy should be reconstructed rather than abandoned, for otherwise
> it is impossible to think critically about central problems in
> democratic theory--among them the very possibility of
> citizens' representing, or translating into a common language,
> what is most singular, secret, ineffable, internal, that is, private,
> about themselves. (2000: 323)
> 
> 
> 



She defends a "positive political theory of privacy" which
she understands as being part of a democratic theory (2000: 323).


## 3. Meaning and Value



When considering the concept of the private, it is sometimes difficult
to separate the descriptive element of meaning from the normative
determination. The determination of the meaning of privacy often
contains clear normative elements, such as when Fried (1968) claims
that the meaning of privacy consists in protecting trust and intimacy,
or when Nissenbaum (2010) defines privacy as the adequate flow of
information (which requires protection). In this article, an attempt
will be made to separate the descriptive and normative aspects as
clearly as possible. In the following section, an overview of the
relation between the concept of privacy and other concepts will first
be given, followed by a descriptive overview of the meaning of
privacy. Finally, we will discuss the various normative determinations
that have been given to privacy.


### 3.1 Semantics



One initial approach to determining the meaning of
"privacy" is to examine how it is related to similar
words. This is what is called the "semantics" of privacy.
First, "private" should be distinguished from
"intimate" (Gerstein 1978; Benn & Gaus 1983; Bok 1982;
Allen 1988; Inness 1992; Dworkin 1994; see also the threefold
differentiation of the meaning of "private" in Weinstein
1971; for the discussion that follows, see Roessler 2001 [2005:
9-12]). What is intimate can also be private, but is not
necessarily so: We also speak, for instance, of forms of "public
intimacy" in aesthetic contexts (think of John Lennon and Yoko
Ono at the Hilton in Amsterdam). "Intimacy" has erotic or
sexual connotations, as well as connotations of proximity and
vulnerability that also--but not only--have to do with the
exposure of one's body (Inness 1992). Secondly,
"private" must be distinguished from "secret".
What is private can be secret, but it is not necessarily so. For
instance, the question of where I practice my religious beliefs is
private, but not necessarily secret. Another example are medical data:
these data are informationally private but not secret; they are known
to many people (in the health system) and we would not generally call
them "secret".What is secret can be private, but is also
not necessarily so--for example, when one speaks of state secrets
(Bok 1982: 10-14; Mokrosinska 2020). Semantic overlaps occur
when privacy is dependent on something being completely hidden or
concealed, in other words on a secret, as with secret diaries or
secret ballots. Of relevance here is Wasserstrom (1984), who
interprets privacy above all as the realm of what is secret, hidden or
concealed, and thus seeks to bring to light the connotations of
deception and deceit.



Another important semantic relation is that of the predicate
"private" to the predicate "public"; the
latter is often defined in opposition to the former. In everyday
language, there are two distinct semantic models underlying the
various uses of "private" and "public" (Benn
& Gaus 1983: 7-10). The first is an "onion"
model, which allows one to distinguish between different layers of
privacy. The center of the onion is the realm of personal or bodily
intimacy and privacy, including not only one's body, but also
one's private diary, as opposed to which everything else is
regarded as "public". The second layer of the onion
comprises the classic realm of privacy, viz. the family and other
intimate relationships. In opposition to the family, the outside world
of society and the state constitutes the public realm. The outer layer
of the onion is society at large--the realm of economic
structures or public civil society--that counts as
"private" with respect to intervention by the state. It
therefore forms yet another realm of privacy in the face of the public
realm of the state and its possible interference (Okin 1991).



In a metaphorical sense, the second model in everyday usage lies
perpendicular to the first. For this second semantic model, the term
"private" is predicated of actions we carry out, or
decisions that we make, no matter where we happen to be. Going to
church is thus a private matter. In this second sense, the concept of
privacy describes a protected sphere or dimension of action and
responsibility, where individuals can act in a way that is independent
of decisions and influences from the public realm of state
institutions and society at large. This second model also comprises
informational privacy, since information about myself which I want to
keep private (medical data etc) is not left at home, in a layer of the
onion. I carry it with me wherever I go, therefore privacy has to be
applicable wherever we are.


### 3.2 Definitions and Meanings



Both of the semantic models mentioned above play a role in the
following definitions. From early on, the difficulties of developing a
systematic and general definition of privacy have been recognized. We
start with the most influential definition (at least since the
twentieth century): the definition of the concept given by Justices
Warren and Brandeis (see
 SS1.2).
 Their conception of (the right to) privacy means rather generally the
"right to be left alone". Warren and Brandeis (1890: 214;
for the history of Warren and Brandeis' interest in privacy see
Prosser (1960)) also refer to "the dignity [...] of the
individual" in discussing the right to privacy, in that respect
for privacy is seen as acknowledging the dignity of persons, and their
respective personalities. Furthermore, it should be mentioned that the
aim of their article was not to explicitly *define* privacy,
but rather to answer the question of "whether our law will
recognize and protect the right to privacy" (1890: 196;
"our law" refers to the US legal framework). This general
definition of the concept of privacy, made in terms of respect for
personality, dignity, and "being left alone", prepared the
field not only for detailed legal discussions, but also for efforts to
define the term from a philosophical perspective.



Both of the semantic models mentioned above play a role in the
following definitions. From early on, the difficulties of developing a
systematic and general definition of privacy have been recognized. We
start with the most influential definition (at least since the
twentieth century): the definition of the concept given by Justices
Warren and Brandeis (see
 SS1.2).
 Warren and Brandeis famously summarized this right to privacy as the
right "to be let alone" (1890: 214; for the history of
Warren and Brandeis' interest in privacy see Prosser 1960). They
underscore that



> 
> 
> the intensity and complexity of life, attendant upon advancing
> civilization, have rendered necessary some retreat from the world, and
> man, under the defining influence of culture, has become more
> sensitive to publicity, so that solitude and privacy have become more
> essential to the individual; but modern enterprises and invention
> have, through invasions upon his privacy, subjected him to mental pain
> and distress, far greater than could be inflicted by mere bodily
> injury. (Warren & Brandeis 1890: 196)
> 
> 
> 



As the foundation of their conception of the right to privacy, Warren
and Brandeis refer to "the dignity [...] of the
individual" or, as pointed out by Sax in his discussion of
Warren and Brandeis,



> 
> 
> the idea of the "inviolate personality" (Warren &
> Brandeis 1890: 205), or, put differently, "the more general
> right to the immunity of the person,--the right to one's
> personality" (Warren & Brandeis 1890: 207). It is ultimately
> up to the individual to decide how she wants to be, think, and act.
> (Sax 2018: 149)
> 
> 
> 



It should be mentioned that the aim of their article was not to
explicitly *define* privacy, but rather to answer the question
of "whether our law will recognize and protect the right to
privacy" (Warren & Brandeis 1890: 196; "our law"
refers to the US legal framework). This general definition of the
concept of privacy, made in terms of respect for personality, dignity,
and "being left alone", nevertheless prepared the field
not only for detailed legal discussions, but also for efforts to
define the term from a philosophical perspective.



There have been various ways in which understanding the differences in
determination of the meaning of privacy have been categorized. The two
most prominent are *reductionism* and *coherentism*, as
has been mentioned above. Reductionists are generally critical of the
effort to carve out a special category of harms or interests best
referred to as unique privacy harms or interests. Coherentists,
meanwhile, defend the coherent fundamental value of privacy interests.
In contrast, Ferdinand Schoeman introduced a somewhat different
terminology. According to Schoeman, a number of authors believe that
"there is something common to most of the privacy claims"
(1984b: 5). Schoeman refers to this approach as the "coherence
thesis". Positions which



> 
> 
> deny both the coherence thesis and the distinctiveness thesis argue
> that in each category of privacy claims there are diverse values at
> stake of the sort common to many other social issues and that these
> values exhaust privacy claims. [...] The thrust of this complex
> position is that we could do quite well if we eliminated all talk of
> privacy and simply defended our concerns in terms of standard moral
> and legal categories. (Schoeman 1984b: 5)
> 
> 
> 



These latter theorists are referred to as *reductionists*.
Judith Thomson puts into question the idea that privacy is a distinct
concept altogether, insofar as she finds that there is no clear idea
of what the *right* to privacy is. Instead, she suggests that
"the right to privacy is itself a cluster of rights"
(1975: 306), such as the right to property or the right over the
person (see
 SS2.1).
 As has been mentioned in earlier sections, Thomson's
reductionist view was dismissed by Thomas Scanlon. For Scanlon, realms
of privacy are always "conventionally defined",
irreducible, and obtain in their own right; that is, they cannot be
marked out by means of other rights or claims. "Our zone of
privacy," writes Scanlon,



> 
> 
> could be defined in many different ways; what matters most is that
> *some* system of limits to observation should be generally
> understood and observed. (1975: 317-318)
> 
> 
> 



The fact that such limits exist--however varied they may turn out
to be--is for Scanlon an indication of the irreducibility of
privacy.



Nonetheless, the diversity of possible definitions and
characterizations, as well as the many possible fields of application,
have continued to pose a challenge. While Scanlon's reply to
Thomson can be read as an attempt to find common ground for different
aspects of privacy (Scanlon 1975), Judith DeCew (1997) proposes to
systematize the concept of privacy by putting forward a "cluster
account" that highlights connections between the different
interests covered by the concept, without reducing privacy to these
different interests:



> 
> 
> I argue that privacy is best understood as a cluster concept covering
> multiple privacy interests, including those enhancing control over
> information and our need for independence as well as those enhancing
> our ability to be self-expressible and to form social relationships.
> (DeCew 1997: 73)
> 
> 
> 



There are other authors who have questioned the possibility of
developing a general, comprehensive definition of privacy. One of the
most innovative recent approaches to the meaning (and value) of
privacy is that of Helen Nissenbaum. She takes note of "the
conceptual quagmire to claim a definition--its
definition--of privacy" (2010: 3) and proposes a different
approach that renounces to the attempt of providing a single, unifying
definition. For Nissenbaum, the right to privacy is best understood as
a "right to *appropriate* flow of personal
information" (2010: 127). Generally, the appropriate flow of
personal information is governed by context-relative information
norms. These are characterized by four parameters, which are the
specific contexts, the actors, the information types, and
(importantly) the transmission principles (see Nissenbaum 2010:
140-141). A transmission principle is a "constraint on the
flow of information from party to party in a context."
(Nissenbaum 2010: 145) What counts as being private information
depends on the different norms imposed on the flow of information
governing different social contexts, such as the contexts of
education, religion, security, or politics (the "contextual
integrity" of various contexts; Nissenbaum 2010: 127-231).
The adequate transmission principle can, depending on the
informational norm, in some contexts (for instance intimate relations)
be understood as the control of access of the persons involved. In
that sense, Nissenbaum is not strictly arguing against Control-Access
approaches, although she argues for their limited use in the general
framework of informational privacy. Note that Nissenbaum writes about
informational privacy and does not discuss other dimensions of the
concept.



Finally, one of the most widely discussed privacy theorists is Daniel
Solove (2004, 2008, 2011). Solove famously observed that privacy is a
"concept in disarray" (2008: 1) and argues that it is
futile to look for a unified definition. Instead, he appeals to
Wittgenstein's idea of "family resemblances", and
proposes understanding privacy as consisting of "many different
yet related things" (2008: 9).



It can be concluded from the discussion presented here that in the
privacy literature, no clear definition has been made that everyone
can agree on. Neither is there a clear *scope* for privacy: in
the US, the conceptual and philosophical discussions regarding the
meaning and definition of "privacy" are mostly framed in
terms of legal discussions of privacy in the context of US
constitutional law. Following this reasoning, a number of theorists
defend the view that privacy has *broad scope*, inclusive of
the multiple varieties of privacy issue described by the US Supreme
Court, even though there is no simple definition of privacy see
Schoemann (1992), Parent (1983), Henkin (1974), Thomson (1975),
Gavison (1980) and Bork (1990).


### 3.3 Normative Approaches



Let us now have a closer look at the *normative* side of the
concept of privacy's value or function. As will be seen, when
determining the supposedly descriptive meaning of privacy, attempts
are usually made to describe privacy at the same time in normative
terms. Let us emphasize again that it is particularly difficult to
separate the descriptive and normative (value-laden) aspects of the
concept of privacy.


#### 3.3.1 Intrinsic vs Instrumental



With the above in mind, we can begin by separating instrumental and
intrinsic approaches to the value of privacy. We speak of the
*instrumental* value of privacy when it is valued for the sake
of something else (e.g., intimate relations, the body, freedom,
autonomy, or dignity; Stigler 1980; Posner 1981). *Intrinsic*
value is when privacy is valued for its own sake, without reference to
any other objects, concepts of value, or dimensions in life (Warren
& Brandeis 1890; Bloustein 1964; Gerstein 1978; Gavison 1980;
Parent 1983).



This idea of an intrinsic value to privacy has, however, been
criticized. An example is Fried's criticism:



> 
> 
> It is just because this instrumental analysis makes privacy so
> vulnerable that we feel impelled to assign to privacy some intrinsic
> significance. But to translate privacy to the level of an intrinsic
> value might seem more a way of cutting off analysis than of carrying
> it forward. (1970: 140)
> 
> 
> 



Fried thus claims that even when we say we value something no matter
what, we can still ask the question, "why should this be
so?" However, the distinction between intrinsic and extrinsic
value is generally a widely debated philosophical topic--not only
in relation to privacy. One should therefore not expect it to be
settled in the domain of the philosophy of privacy (see entry on
 intrinsic vs. extrinsic value ).


#### 3.3.2 Access Simpliciter



Access-based approaches have been put forward to answer the question
of the meaning and value of privacy. A variety of formulations can be
found in the literature (e.g., Thomson 1975; Gavison 1980; Reiman
1995; Allen 2000; Tavani & Moor 2001). Reiman, for instance,
defines privacy as "the condition in which others are deprived
of access to you" (1995: 30). Similarly, Allen suggests that



> 
> 
> privacy refers to a degree of inaccessibility of a person or
> information about her to others' five senses and surveillance
> devices. (2000: 867)
> 
> 
> 



A classic formulation has been offered by Ruth Gavison: "An
individual enjoys perfect privacy when he is completely inaccessible
to others" (1980: 428). All these suggestions assume that we
*value* privacy and therefore need some restriction of access
to it, see especially Reiman (1995).



Sissela Bok defines privacy as



> 
> 
> the condition of being protected from unwanted access by
> others--either physical access, personal information, or
> attention. Claims to privacy are claims to control access. (1982:
> 10)
> 
> 
> 



Privacy is here defined as a condition in which one is protected in
various respects from undesired intrusions by other people. Such a
broadly-based definition still seems likely to cover the whole range
of meanings of the concept of privacy. Similar approaches are also
found with Benn (1988) and Schoeman (1992).



The access-based approach has been criticized, however. For instance,
it is clear that one does not enjoy privacy after falling into a
crevasse, even though it does comply with the condition of
"inaccessibility" (see Schoeman 1984b: 3). If a state of
isolation, seclusion or secrecy is enforced and not freely chosen (in
other words, when the person in question has no control over access),
then one would not describe it as "private". Westin (1967:
40) describes the solitary confinement of prisoners as an example of
"too much" privacy. Furthermore, this criticism shows that
we think of privacy as a distinctly *interpersonal* phenomenon.
If I am stranded on a desert island, it makes no sense to say I enjoy
complete privacy because there are no other people present that I
could be inaccessible to (Fried 1968).


#### 3.3.3 Controlling Access



Other approaches to the meaning and value of privacy take the idea of
control as their very starting point, i.e., control over specific
areas of privacy. The so-called *control-based approach* has
been adopted in many writings on privacy in academic literature and
beyond (Westin 1967; Fried 1968; Scanlon 1975; Parent 1983; Inness
1992; Bok 1982; Boyd 2010). Most control-based approaches justify this
interpretation of the value of privacy with the enabling of freedom:
individual freedom and autonomy are not possible without the
protection of private life (see Allen 1988; Jean Cohen 2002). It
should be pointed out, however, that access-based conceptions of
privacy could also imply that we value privacy because it enables
freedom. This is in fact Reiman's position (1995), and so this
should not be seen as a defining line of separation between the
approaches. Finally, Bloustein argues that "the intrusion [of
privacy] is demeaning to individuality, is an affront to personal
dignity" (1964: 962).



The classic and very influential approach advocated by Westin defines
privacy as control over information:



> 
> 
> Privacy is the claim of individuals, groups, or institutions to
> determine for themselves when, how and to what extent information
> about them is communicated to others. (1967: 7; see also Gross
> 1971)
> 
> 
> 



In a similar vein to Westin, Fried defines privacy as "the
control we have over information about ourselves" (1968: 482).
Fried also asserts that the reason we value privacy is that
relationships with other individuals (characterized by love,
friendship and trust, for example) essentially depend on the ability
to share certain information which we would not share with those not
in the relationship. Privacy thus provides the "means for
modulating [...] degrees of friendship" (Fried 1968: 485),
because we share more information with very close friends than we
would with others. Hence, what we really care about is the ability to
control the information that we share with others. The right to
privacy would protect the ability of an individual to shape meaningful
relations with others and would be justified by the importance of
relationships such as friendship, love and trust in human life (Fried
1968: 484).



This control can not only be understood as being concerned with
informational privacy (as with Westin), but also in much broader
terms. Iris Young writes: "The Private [is] what the individual
chooses to withdraw from public view" (1990: 119-120).
Control is here conceived as a retreat from visibility in the public
eye, as is echoed by Julie Inness:



> 
> 
> Privacy is the state of the agent having control over a realm of
> intimacy, which contains her decisions about intimate access to
> herself (including intimate informational access) and her decisions
> about her own intimate actions. (1992: 56)
> 
> 
> 



Since the values ascribed to privacy can differ, access-based
approaches are compatible with this justification of the value of
privacy in terms of intimacy and closeness. Most control-based
approaches, however, justify the value of privacy by citing the
enabling of freedom: individual freedom and autonomy are not possible
without the protection of a private life (Jean Cohen 2002). Jean Cohen
(2002) gives a theoretical defense of a freedom-based view of the
right to privacy. She defends a constructivist approach to privacy
rights and intimacy, arguing that privacy rights protect personal
autonomy, and that a right to privacy is indispensable for a free and
autonomous life. Freedom and autonomy are in the control access-based
interpretation inherently linked with privacy: if I want to control
the access to myself (or to information about myself), then it is an
expression of my freedom to do so. Privacy has, in these approaches,
such a high value because it protects my freedom to do what I want to
do at home (within the limits of the law), to control what people know
about me (also within limits) and to decide freely about myself and my
body (Jean Cohen 2002; Roessler 2004: 71ff). One aspect of the freedom
or autonomy of persons is their freedom from unwanted observation and
scrutiny. Benn (1984) emphasizes how respect for privacy effectively
expresses respect for persons and their personhood. He explains that
"[a] man's view of what he does may be radically altered
by having to see it, as it were, through another man's
eyes" (1984: 242). The necessity of adopting a different
perspective on one's own behavior can be seen as a restriction
of freedom in the sense of the freedom of self-presentation The basic
idea of these approaches is that the freedom to play different roles,
to present oneself in different ways, presupposes that a person, in a
given relationship, can hide (keep private) aspects which she does not
want to be seen, to share. The other person would see her in a
different way, if he knew this other side of her. Thus, the freedom to
present oneself in *this* way, in *this* relationship,
would be thwarted. The social freedom to play different roles is
dependent on being able to present oneself differently to neighbors,
students, one's spouse. It is dependent on the protection of
privacy (Allen 1988; Goffman 1959 for further discussion; Goffman is
an oft-quoted reference in the privacy literature). We need privacy
precisely to afford us spaces free from observation and scrutiny, in
order to achieve the liberal ideals of freedom--such as the ideal
of personal relations, the ideal of "the politically free
man", and the ideal of "the morally autonomous man"
(Benn 1984: 234).



Adam Moore (2010) adopts yet another approach, which nonetheless
should be mentioned under the heading of control-based approaches. In
the explicit tradition of Aristotelian teleology, Moore steps off from
an account of human nature to explain the value of privacy. Human
nature, he argues, allows humans to flourish in a particularly human
way. In order to flourish, humans need to develop their rational
faculties. This allows them, among other things, to live an autonomous
life. Among the necessary favorable external conditions which human
beings need to flourish, are the rights to and norms of privacy (A.
Moore 2003).


#### 3.3.4 Controlling Access: Three Dimensions



The control-based approach has led to the suggestion that different
dimensions of control can be distinguished, and that these have a
direct correlation with different areas of privacy. From a normative
standpoint, these dimensions--not spaces--of privacy serve
to protect, facilitate, and effectuate access to what is conceived of
as private, and to identify a range of different privacy norms that
are supposed to protect and enable personal autonomy.



Other authors suggest that the control-access definition of privacy is
best understood as a *cluster concept* covering interests in
(a) control over information about oneself; (b) control over access to
oneself, both physically and mentally; and (c) control over
one's ability to make important decisions about family and
lifestyle, so as to be self-expressive and to develop varied
relationships (DeCew 1997).



Roessler (2001 [2005]) suggests that three dimensions of privacy
should be identified, namely decisional privacy, informational
privacy, and local privacy, meaning the traditional "private
sphere", mostly the home (the place, as opposed to information
or actions). The justification for these different dimensions lies,
she argues, in their role in protecting personal autonomy. Without the
protection of privacy in these three dimensions, an autonomous and
well-lived life in a liberal democracy would not be possible. She
explains:



> 
> 
> The dimension of *decisional* privacy serves to secure the
> scope for a subject to make decisions and take action in all his
> social relations. The dimension of *informational* privacy
> serves to secure a horizon of expectations regarding what others know
> about him that is necessary for his autonomy. The dimension of
> *local* privacy serves to protect the possibilities for spatial
> withdrawal upon which a subject is dependent for the sake of his
> autonomy. [The] aim is to show what the value of privacy inheres in
> and in what way the violation of these dimensions of privacy also
> entails a violation of the individual autonomy of the subject.
> (Roessler 2001 [2005: 16])
> 
> 
> 



Protection of personal privacy with respect to these three dimensions
is also constitutive of social life (Fried 1968), as well as crucial
for democratic decision-making procedures (Stahl 2020; A. Roberts
2022).


#### 3.3.5 Decisional Privacy



The three dimensions are anchored in different traditions of the
conception of privacy, and have been discussed for many years. It is
in recent years that *decisional privacy*, or the privacy of
actions, has become a specialist term in the literature. Norms of
decisional privacy allow for the control of access to one's
decisional sphere. This concerns certain forms of behavior in public,
questions of lifestyle, and more fundamental decisions and actions
where we may with good reason tell other people that such-and-such a
matter is none of their business (see Lanzing 2016; Sax 2018).



A decisive factor in coining the concept of decisional privacy was the
ruling of the US Supreme Court in the *Roe v. Wade* case. As a
result of this landmark case, feminist theory has treated sexual
freedom of action, the privacy of intimate and sexual acts, and the
woman's right of sexual self-determination as central elements
in the theory of privacy (Allen 1988). In the literature on privacy,
decisive significance is also given to the *privacy of the
body* (Gatens 1996, 2004). This includes the woman's
newly-won right to conceive of her body as private to the extent that
she can decide for herself whether or not to bear a child, and thus
enjoy the right of reproductive freedom.



Sexual harassment and sexual orientation are two further central
aspects of decisional privacy, both of which concern the link between
sexuality, the body, and identity, and are decisive for the societal
coding and meaning of privacy. Protection from sexual harassment and
the respect for diverse sexual orientations form dimensions of
decisional privacy precisely because it is the privacy of the body
that is vulnerable to infringement (see Jean Cohen 2002 for a
comprehensive discussion). For more on issues linked to power, see
 SS4.



We can distinguish between different aspects of decisional privacy
according to their social context, but the argument underlying the
claim to protection of such privacy remains structurally the same. If
one understands a person's self-determination and autonomy to
consist in the right to be the (part-) author of her own biography,
this must mean that within different social contexts she can demand
that her decisions and actions are respected (in the sense that they
are "none of your business") by both social convention and
state law. The limits to this form of privacy are regulated by
convention and are of course subject to constant renegotiation. Yet
this sort of respect for a person's privacy--applicable
also to public contexts--is especially relevant for women. (For
relevant examples, see Nagel 1998a & 1998b; Allen 1988; Fraser
1996; Gatens 2004). The spectrum of decisional privacy thus extends
from reproductive rights to freedom of conduct in public space.


#### 3.3.6 Informational Privacy



Norms of informational privacy allow people to control who knows what
about them. The knowledge other people have about us shapes the ways
in which we can present ourselves, and act around others.
Informational privacy is thus essentially linked to individual freedom
and autonomy since it enables different forms of self-presentation, as
well as enabling different forms of social relationship (see Roessler
2001 [2005: 111-141] for more detail).



Debates about informational privacy hearken back to the interpretation
of the US Constitution, beginning with the essay written by Justices
Warren and Brandeis. (That essay was written after what they felt was
an invasion of privacy by intrusive paparazzi in 1890.) It was in that
essay that, for the first time, the *right to be left alone*
was described as a constitutional right to privacy, in the sense that
information about a person is worthy of protection even when it
involves something that occurs in public (see
 SS1.2).



This form of privacy is relevant, primarily in friendships and love
relationships, and serves both as protection *of* relationships
and as protection *within* relationships. In some theories of
privacy, this actually constitutes the very heart of privacy in the
form of "relational privacy", which guarantees
opportunities for withdrawal that are constitutive for an authentic
life (Fried 1968; Rachels 1975). For further details, see entry on
 privacy and information technology.


#### 3.3.7 Local Privacy



The *dimension of local privacy* refers to the classic,
traditional place of privacy, thought of in terms of its most genuine
locus: one's own home. As we have already seen, this form of
local privacy is not derived from a "natural" separation
of spheres, but rather from the value of being able to be able to
withdraw to within one's own four walls (see
 SS1
 and
 SS2
 above).



Traditionally, two different aspects of privacy are of relevance here:
solitude and "being-for-oneself" on the one hand, and the
protection of family communities and relationships on the other.
Firstly, people seek the solitude and isolation provided by the
protection of their private dwelling, in order to avoid confrontation
with others. This aspect of privacy also comes to the fore in the work
of Virginia Woolf and George Orwell, for both of whom the privacy of
the room--the privacy to write or think--is a precondition
for the possibility of self-discovery and an authentic life (Orwell
1949; Woolf 1929).



Local privacy also offers protection for family relationships. The
privacy of the household provides the opportunity for people to deal
with one another in a different manner, and to take a break from roles
in a way that is not possible when dealing with one another in public.
This dimension or sphere of privacy, however, is especially prone to
generate the potential for conflict. As has been made clear from
previous discussions, this has been a particularly important starting
point for feminist criticism. A conflict arises here between
traditional conceptions of privacy as constitutive of a loving family
haven, which has nothing to do with demands for justice or equal
rights (Honneth 2004; contrast with Rawls 1997), and the critical
feminist approach (see Okin 1989 & 1991; Young 2004).


## 4. Contemporary Debates



Contemporary debates on privacy are manifold, lively, and sometimes
heated. They turn on a multitude of issues that are not only limited
to informational privacy, but also include other dimensions of
privacy.


### 4.1 Recent Debates on the Value or Function of Privacy



Conceptual and normative debates are still pervasive and persistent in
the literature, with the role of autonomy and the control-access
approach being typical of contemporary discussion. A *general
discussion* of privacy, not focused on one particular aspect but
rather presenting the different threats to privacy, and its role and
associated tensions in discussions of advancing technology, can be
found in different recent comprehensive monographs, for instance in
Rule (2007), also in Rotenberg, Scott, and Horwitz (2015), in Citron
(2022) as well as in Francis and Francis (2017); Focusing on more
particular aspects of the normative debates, Koops et al. (2017) have
given a very helpful and informative overview over the different
possibilities of defining the meaning and value of privacy. They aim
at a typology of eight concepts of privacy:



> 
> 
> Our analysis led us to structure types of privacy in a two-dimensional
> mode, consisting of eight basic types of privacy (bodily,
> intellectual, spatial, decisional, communicational, associational,
> proprietary, and behavioral privacy), with an overlay of a ninth type
> (informational privacy) that overlaps, but does not coincide, with the
> eight basic types. (2017: 483)
> 
> 
> 



They also very helpfully explain the differences between access-based,
control-based and other approaches to the function and value of
privacy. Marmor (2015) argues that in the past it has been
increasingly difficult to argue for a general interest which privacy
is to protect, especially because of the reductionist critique of
Thomson (1975); see
 SS2.1).
 Marmor goes on to claim, however,



> 
> 
> that there is a general right to privacy grounded in people's
> interest in having a reasonable measure of control over the ways in
> which they can present themselves (and what is theirs) to others.
> (2015: 3-4)
> 
> 
> 



Marmor presents an interesting version of a control-based theory of
privacy in defending the view that we have a basic interest in having
(reasonable) control over evaluations of ourselves, which also means
that we have an interest in a predictable environment and a
predictable flow of information (see 2015: 25). He is thereby in fact
connecting to other control-based approaches (see Jean Cohen 1992,
also Goffman 1959) as well as theories of privacy as contextual
integrity (see Nissenbaum 2010). Mainz and Uhrenfeldt (2021) also
support the control-access approach to privacy, claiming that



> 
> 
> there is at least a pro tanto reason to favor the control account of
> the right to privacy over the access account of the right to privacy.
> (2021: 287)
> 
> 
> 



In a slightly different manner, Gaukroger (2020: 416) claims that
privacy not only protects us when we act in morally right ways, but
also when we make use of the "freedom to be
bad"--which he defends as a general good. Lundgren,
however, disputes the control-access approach because of its
fundamental difficulties. Following Parent, Lundgren argues that if we
adopt a control based account, we lose privacy every time we give
someone access to whatever it is we want to keep private which in fact
means that we lose more and more of our privacy. Lundgren therefore
argues for a "limited access" (Lundgren 2020: 173)
conception, criticizing many different forms of control-access
accounts (2020: 167 fn 7). (By implicitly following Bloustein's
(1964) plea for the centrality of the concept of human dignity,
Floridi (2016) contends that the concept of dignity should be the
foundation of interpreting informational privacy, as understood by the
GDPR.)



A further development concerns the *theory of contextual
integrity*, as developed by Helen Nissenbaum. Nissenbaum's
framework of Contextual Integrity has won enormous attention as the
standard to evaluate flows of personal information, their legitimacy
and acceptability but has not remained undisputed. On the one hand,
Nissenbaum's paradigm has led to a great number of articles
applying it to different societal fields and technology developments.
Shvartzshnaider et al. (2019) present "a method for analyzing
privacy policies using the framework of contextual integrity
(CI)". The authors claim that this



> 
> 
> method allows for the systematized detection of issues with privacy
> policy statements that hinder readers' ability to understand and
> evaluate company data collection practices. (Shvartzshnaider et al.
> 2019: 162)
> 
> 
> 



Nissenbaum (2019) herself applies the approach of contextual integrity
to a complex data network and argues that especially the contextual
integrity approach is able to identify those sources of disruption in
novel information practices which should be criticized (2019: 221; see
also Nissenbaum 2015). Another interesting example is Shaffer (2021)
who applies the Contextual Integrity Framework to new technologies for
smart cities. Winter and Davidson (2019) apply the approach of
contextual integrity to the problem of data governance in health
information, since advances in collecting data



> 
> 
> also pose significant data governance challenges for ensuring value
> for individual, organizational, and societal stakeholders as well as
> individual privacy and autonomy.
> 
> 
> 



They go on to



> 
> 
> investigate how forms of data governance were adapted, as PHI
> [Personal Health Information] data flowed into new use contexts, to
> address concerns of contextual integrity, which is violated when
> personal information collected in one use context moves to another use
> context with different norms of appropriateness. (2019: 36)
> 
> 
> 



On the other hand, some criticism has been raised which argues that
Nissenbaum does not actually provide normative standards to judge
which information flows should be seen as ethically justified and
which as detrimental (Rule 2019). Rule argues that



> 
> 
> notions that norms underlying any given domain of human conduct are
> unambiguous or uncontested simply do not withstand close examination.
> Indeed, most social norms, particularly in rapidly changing domains of
> human conduct like privacy practices, are volatile and highly
> contested. (2019: 260)
> 
> 
> 



In a similar vein, DeCew (2015) questions the idea that in any given
context, the governing norms might be not up to ethical standards and
still defendable on the basis of the integrity of the context and the
norms governing it, as is the case of the governing norms in the
traditional family (DeCew 2015: 215).



Finally, the theory that private data should be seen as private
*property* should be mentioned. This idea originated with
Lessig (2002) and has since been discussed by a number of authors.
Arguments exist for and against the idea that the agents generating
datapoints--the source of the data--have a right to claim
those datapoints as private property (Schneider 2021; see also Tufekci
2015; Wu 2015).


### 4.2 The Conflict between Privacy and Other Values or Rights



Newell e.a. (2015) ushers in a cogent articulation and defense of
privacy even when privacy seems to conflict with other important
values. Recent technological developments are concerning, with
implications for the moral, legal and social foundations and
interrelationships between privacy, security and accountability.
Katell and Moore (2016: 3) make use of a control-based definition of
privacy, stating that a right to privacy is "a right to control
access to, and uses of, places, bodies, and personal
information". They also write that



> 
> 
> the ability to control access to our bodies, capacities, and powers,
> and to sensitive personal information, is an essential part of human
> flourishing or well-being. (Katell & Moore 2016: 5)
> 
> 
> 



Kenneth Himma



> 
> 
> argues that security is a more important right that always
> "trumps" privacy, which on his view is not an absolute or
> fundamental right, but merely "instrumental" to other
> rights. (Katell & Moore 2016: 12 and Himma 2016; both in A. Moore
> 2016)
> 
> 
> 



Himma's defense is based on his view that security is
fundamental to survival--our most valuable duty and obligation.
In contrast, responding to this view, Adam Moore defends privacy over
security with multiple arguments, perhaps the most powerful of which
is demonstrating "the importance of privacy as a bulwark against
the tyrannical excesses of an unchecked security state" (Katell
& Moore 2016: 13 and Moore 2016b). As the authors in this volume
note, there is good reason to conclude that privacy, security and
accountability are all morally valuable.



Over the course of the last few years (and especially between 2020 and
2023), the conflict between privacy and health, or privacy and safety,
has been the topic of much discussion--particularly from the
perspective of the COVID-19 pandemic. In an early attempt to develop
suitable guidelines, Morley et al. (2020) have postulated that not
only should privacy be protected, but also equality and fairness
observed in digital contact-tracing. However, such contact-tracing
apps clearly bring about a conflict between privacy and the health of
people. Throughout the course of the pandemic, such contact-tracing
apps were contested (see Bengio et al. 2020; Fahey & Hino
2020).


### 4.3 The Cultural Relativity of the Value of Privacy


 Schoeman (1984b) has pointed out that the question of whether or
not privacy is culturally relative can be interpreted in different
ways. One question is whether privacy is deemed valuable to all
peoples, or whether its value is relative and subject to cultural
differences (see Westin 1967; Rachels 1975; Allen 1988; A. Moore
2003). Another question is whether there are any aspects of life that
are inherently private and not just conventionally so. There is also
some literature on the different cultures of privacy in different
regions of the world. A growing number of articles are concerned with
privacy conceptions in China, not only due to technological
developments over the last years (as detailed in Ma 2019 for a
relational, Western-Eastern conception of privacy; H. Roberts 2022),
but also on earlier periods in Chinese culture, for instance on
Confucian and Taoist thinking (Whitman 1985; for attitudes towards
healthcare, see Chen et al. 2007). Basu (2012) writes about the Indian
perception of privacy, based on India's cultural values, and
offers an explanation for why their concept of privacy seems to extend
beyond the often-dominating public-private dichotomy. Capurro (2005)
deals with intercultural aspects of privacy, particularly with regard
to differences between Japanese and Western conceptions (see also
Nakada & Tamura 2005). For a perspective on the general Buddhist
theory of privacy, see Hongladarom (2016). The ubuntu perspective on
privacy is discussed by Reviglio and Alunge (2020).


### 4.4 The Democratic Value of Privacy



Theorists have repeatedly pointed to the connection between the
protection of privacy, understood as the protection of individual
autonomy, and the protection of democracy (see Goold 2010:
38-48). Hughes, for example, speaks of privacy as a
"bulwark against totalitarianism" (2015: 228), while
Spiros Simitis describes the right to privacy as "a constitutive
element of a democratic society" (1987: 732). Probably the
best-known advocate of privacy with a view to democracy is Ruth
Gavison. She argues that the protection of privacy both supports and
encourages the moral autonomy of citizens, which is an essential
precondition of democratic societies (Gavison 1980: 455; see also
Hughes 2015: 228; Simitis 1987: 732; Solove 2008: 98-100;
Schwartz 1999). There can be no democratic self-determination without
the protection of privacy. Hence, government intervention for the
security of citizens becomes an ideology that threatens democracy when
its goal is no longer the freedom of individuals--that is, when
citizens are no longer treated by the state as democratic subjects,
but as objects.



Mokrosinska emphasizes privacy as a democratic value, thus
strengthening that value when it comes into competition with freedom
of expression and other political interests. Privacy can facilitate
setting aside deep disagreements in order for political engagement in
a democracy to proceed. Thus, Mokrosinska proposes a strategy for
mediating between privacy and free speech when they collide
(Mokrosinska 2015). Lever, in a monograph on privacy and democracy,
develops a comprehensive theory and argues that privacy is in
different ways essential for democracies and for the freedom,
equality, and solidarity of democratic subjects (Lever 2013). From a
different perspective, Stahl (2020) discusses ways in which
"surveillance of intentionally public activities" should
be criticized. Drawing on the theories of contextual integrity
(Nissenbaum) and of the public sphere (Habermas), Stahl argues
that



> 
> 
> strategic surveillance of the public sphere can undermine the capacity
> of citizens to freely deliberate in public and therefore conflicts
> with democratic self-determination. (2020: 1)
> 
> 
> 



The democratic value of privacy also plays a central role in
*Republicanism*, since threats to privacy are always also
threats to democracy. Republicans point out the value of privacy by
contrasting it to liberal theories, which cannot explain the
*possible* threat to privacy--not just the actual
interference--as an encroachment on the freedom of subjects.
Andrew Roberts (2015: 320) writes that for republicans, because
privacy



> 
> 
> is a pre-requisite for effective participation in political life, and
> republicans consider such participation to be the essence of
> self-government and the means through which a polity can secure
> conditions of freedom, in a republican democracy individual privacy
> will be seen as a collective good.
> 
> 
> 



(For a far more elaborate account along similar lines, see A. Roberts
2022; as well as Schwartz 1999)


### 4.5 Group Privacy



Group privacy has entered philosophical discussion at a rather late
stage, since it was only with the new forms of information and
communication technology that groups could be targeted and surveilled
efficiently. Research on group privacy addresses the fact that it is
not individuals that are targeted by data collection and profiling
practices, but rather groups of individuals who share certain relevant
features. An important and influential collection of essays is that of
Taylor, Floridi, and van der Sloot (2017a). Taylor et al. point out
that



> 
> 
> profiling and machine learning technologies are directed at the group
> level and are used to formulate types, not tokens--they work to
> scale, and enable their users to target the collective as much as the
> individual. (2017b: 1)
> 
> 
> 



The book discusses divergent perspectives on what a group is, how
groups should be addressed with regard to privacy, which elements of
the problem can be addressed using current legal and conceptual tools,
and which will require new approaches.



Especially interesting is Floridi's argument that



> 
> 
> groups are neither discovered nor invented but designed by the level
> of abstraction (LoA) at which a specific analysis of a social system
> is developed. Their design is therefore justified insofar as the
> purpose, guiding the choice of the LoA, is justified. (Floridi 2017:
> 83)
> 
> 
> 



Floridi states that the claims that groups have rights and groups have
privacy are taken together in the argument that groups can have rights
to privacy, and that indeed sometimes it is only the group which has
privacy and not its members. (2017: 83; see also Taylor 2017:
13-36; van der Sloot 2017: 197-224). Loi and Christen
(2020) agree with Floridi's claim that groups can have rights to
privacy. However, they argue, against Floridi, for the distinction
between two different concepts of privacy for groups:



> 
> 
> The first (...) deals with confidential information shared with
> the member of a group and inaccessible to (all or a specific group of)
> outsiders. The second (...) deals with the inferences that can be
> made about a group of people defined by a feature, or combination
> thereof, shared by all individuals in the group. (Loi & Christen
> 2020: 207)
> 
> 
> 



Loi and Christensen claim that it is the latter, the inferential
notion of privacy which is the one explaining group privacy. An
absolute right to this privacy, they conclude, is implausible.



Puri (2021) criticizes the conventional liberal conception of privacy
that focuses excessively on the identification of the individual as
inadequate in safeguarding the individual's identity and
autonomy. Puri therefore develops



> 
> 
> a theoretical framework in the form of a triumvirate model of the
> group right to privacy (GRP), which is based on privacy as a social
> value... [he also formulates] the concept of mutual or companion
> privacy, which counterintuitively states that in the age of Big Data
> Analytics, we have more privacy together rather than individually.
> (Puri 2021: 477)
> 
> 
> 


### 4.6 Social Dimensions of Privacy



Interestingly, Puri (2021) connects the question of group privacy with
the one of the social dimensions of privacy. However, although both
discourses share the critique of individualist conceptions of privacy
and are interested in more than the individual's protection of
privacy, the latter tackles a different problem. The upshot of the
debates around the social dimensions of privacy is the claim that
privacy is not (only) a right or need for individuals, but protects,
and ought to protect *relations* as well. Not all relations
make up a group, and privacy can, in some cases, constitute the very
relation it protects, as Roessler and Mokrosinska (2013) argue. James
Rachels and Charles Fried both recognized that privacy has a social
value: relationships can only be protected when certain norms of
privacy apply both within relationships and to relationships (Fried
1968; Rachels 1975). The various norms of informational privacy do not
merely regulate the social relationships and roles that we have in
life, they actually make them possible. The perspective of the
individual seems insufficient to account for many of the concerns
raised in debates around privacy-invasive technologies. With
ever-greater frequency, privacy-invasive technologies have been argued
to endanger not only individual interests, but also to affect society
and social life more generally. Therefore, not only the safeguarding
of individual freedoms, but also the constitution and regulation of
social relationships, are essential to privacy norms (see Roessler
& Mokrosinska 2015).



Following Fried (1968) and his theory describing the relational
character of the protection of individual privacy, one can argue that,
while endorsing norms of informational privacy which should protect
individual privacy, this privacy at the same time plays an essential
role in social relations. Therefore, the protection of privacy is not
always and not necessarily in conflict with societal interests
(Roessler & Mokrosinska 2013: 771).



In recent years, several scholars have taken important steps towards
developing a social approach to privacy. Arguing that an important
aspect of the significance of informational privacy is that it goes
beyond the interests of the individuals it protects, these scholars
have emphasized the way in which privacy enables social and
professional relationships, democratic decision-making processes, and
political participation. They have also stressed the necessary role of
privacy for cooperation and trust within various associations, such as
economic partnerships. Regan, Solove, and Nissenbaum also follow this
line of thought. Famously, Regan argues that privacy is not only of
value to the individual, but also to society in general. For Regan
privacy is a common value, a public value, and also a collective value
(1995: 213; see Regan 2015: 50; Hughes 2015). Solove claims that



> 
> 
> [by] understanding privacy as shaped by the norms of society, we can
> better see why privacy should not be understood solely as an
> individual right... the value of privacy should be understood in
> terms of its contribution to society. (2008: 98, 171fn)
> 
> 
> 



Solove believes privacy fosters and encourages the moral autonomy of
citizens, a central requirement of governance in a democracy. Regan
(1995), Solove (2008) and Nissenbaum (2010) took the first steps in
analyzing the social dimensions and value of privacy in a democratic
society and are now focusing on the role of privacy in political and
social practice, law, media and communication, healthcare, and the
marketplace.



The social dimensions of privacy also play a crucial role in the
social analysis of the family. DeCew and Moore assess the
public/private boundary in the family, given that family conventions
are among the most crucial for this primary human socialization
setting, and also given that structures in the family often are
oppressive, as DeCew points out (see MacKinnon 1989).


### 4.7 Privacy and the Datafication of Daily Life



The issue of the datafication of daily life and its relation to
privacy has been discussed from many different angles. One of the
first areas of focus was "ambient intelligence" (initially
analyzed by Brey 2005), and the "internet of things",
which is still very widely discussed. Wachter, for instance, writes
that the



> 
> 
> Internet of Things (IoT) requires pervasive collection and linkage of
> user data to provide personalised experiences based on potentially
> invasive inferences. Consistent identification of users and devices is
> necessary for this functionality, which poses risks to user privacy.
> (2018: 266)
> 
> 
> 



She suggests guidelines for IoT developers which guarantee the
protection of privacy in accordance with the GDPR, in cases such as
smart homes and data gathered by Siri and Alexa (see also entries on
 privacy and information technology
 and
 ethics of artificial intelligence and robotics.)


#### 4.7.1 The Datafication of Life: Work



Most of us spend a lot of time at work every day. It is the workplace
where, in recent years, more and more employers have been observing
what their employees are doing. This raises normative problems, such
as the consequences of this surveillance for the autonomy of
employees, as well as for the relationship between employees and, of
course, the question of how much privacy one can claim at the
workplace. A good overview of this topic is provided by Bhave, Teo,
and Dalal (2020). Chamorro-Premuzic and Buchband (2020) demonstrate
the importance of clear communications with employees explaining the
reasons for, and existence of, corporate monitoring programs.


#### 4.7.2 The Datafication of Life: Commercial Health Apps



From the perspective of the datafied life, the development of
commercial health apps--which have become increasingly
commonplace in recent years--is particularly important. They
became especially relevant given COVID-19 lockdown restrictions, when
people became not only more interested in sporting activities, but
also in measuring them and finding motivation through interpreting
related data. Commercial health app developers have exploited this,
and are often not sufficiently clear about the dangers of data
collection for the protection of privacy (Sax 2021). Huckvale, Torous,
and Larsen (2019) point to these dangers and explain their nature, as
does Mulder (2019), who examines app providers and their marketing
statements with respect to the extent to which they actually meet the
requirements of the GDPR. A different, but equally important point
concerns women's health data and how the recent decision of the
US Supreme Court to overturn *Roe v. Wade* affects the privacy
of the health-data of women (see Cox 2022; the *Dobbs v. Jackson
Women's Health Organization* is also relevant at this
point).


#### 4.7.3 The Datafication of Life: The Privacy Paradox



It is often reported that people who talk generously about their
private lives in social media still claim that they regard
informational privacy as a very valuable asset, and that the state has
an obligation to guarantee their informational privacy protection.
Observations about the online behavior of young people in particular
have led theorists to use the term "privacy paradox" in
recent years (Hargittai & Marwick 2016: 3737). Martin and
Nissenbaum (2016), however, argue against a paradox: they present a
survey with



> 
> 
> questions that insert ranges of values for the respective parameters
> contextual integrity asserts as fundamental to informational
> standards. (Martin & Nissenbaum 2016: 217)
> 
> 
> 



The argument from contextual integrity demonstrates that whether
people see any given data flow as violating privacy depends on the
values for five parameters: sender, recipient, data subject,
transmission principle, and type of information. Martin and Nissenbaum
argue that if one describes a situation in which information or data
flows without specifying values for all the parameters, one is thereby
offering an ambiguous description. Their study on
"sensitive" information demonstrates that although people
consistently rank certain types of information as more or less
sensitive, their reactions vary quite significantly when the recipient
is specified, e.g., health information to an advertiser versus to a
physician. Thus, when people post information on social media, we can
draw no conclusions about whether this means they care or do not care
about privacy because they may consider it appropriate to share the
information in question with friends, though not with advertisers etc.
(2016: 217).



Hargittai and Marwick, on the other hand, interpret the privacy
paradox differently and argue that while young adults are aware of the
dangers of sharing information online, they feel that they have to
"acknowledge that individuals exist in social contexts where
others can and do violate their privacy" (2016: 3737). Hoffman,
Lutz, and Ranzini (2016), in contrast, explain the endless sharing of
personal data, while simultaneously defending the value of
informational privacy, as a kind of "privacy cynicism". In
contrast, Draper and Turow analyze this attitude as
"resignation" and have recently defended a theoretical
framework which conceptualizes "digital resignation as a
rational response to consumer surveillance" (Draper & Turow
2019: 1824).


#### 4.7.5 The Datafication of Life: The Quantified Self and the Duty to Protect One's Own Privacy



One aspect of mass data collection concerns the possibility of
self-observation: one's own behavior can be measured
comprehensively, and every quantifiable detail can be noted. The first
such "lifeloggers" were Gordon Bell and Jim Gemmell. They
had a grand vision of recording life as a whole, similar to the
protagonists in Dave Eggers' dystopian novel *The Circle*
(Bell & Gemmell 2009 [2010]; see Eggers 2013 and his 2021; Lanzing
2016). As a rule, self-trackers use self-observation techniques more
selectively. They are mostly concerned with data that is necessary for
their health and well-being, but not with all-round
self-observation.



Allen points to one of the consequences of living with a life log: she
argues that life logs make memory superfluous and calls this activity
a "freezing of the past" (Allen 2008: 48). This makes it
impossible to change oneself. She further argues that this complete
abandonment of privacy--also characteristic of social
media--leads to people, especially young adults, becoming less
autonomous. Allen therefore pleads for a duty to protect our own
privacy (Allen 2011) and makes the case that protecting one's
own privacy should be required:



> 
> 
> We need to restrain choice--if not by law, then somehow. Respect
> for privacy rights and the ascription of privacy duties must both be a
> part of a society's formative project for shaping
> citizens... some privacy should not be optional, waivable, or
> alienable. (Allen 2011: 172)
> 
> 
> 


### 4.8 The Privacy of Animals



Alan Westin (1967) surveyed several studies of animals, demonstrating
that a desire for privacy is not restricted to humans. One of the more
recent contemporary debates on privacy concerns the question of
whether animals should have (a right to) privacy. Pepper (2020)
defends such a right, since nonhuman animals also have an



> 
> 
> interest in shaping different kinds of relationships with one another
> by giving us control over how we present ourselves to others...
> which grounds a right against us. (2020: 628; see also Paci et al.
> 2022)
> 
> 
> 


### 4.9 Epistemological Issues



Research on the relationship between privacy and knowledge--that
is, on epistemological issues--is a relative newcomer to the
arena of privacy debates. Fallis (2013) offers one of the first
discussions of the issue, and criticizes the position that holds that
"protecting privacy typically leads to *less* knowledge
being acquired", as well as the position that "lack of
knowledge is *definitive* of having privacy". He goes on
to argue that



> 
> 
> contra the defenders of the *knowledge account of privacy*,
> that someone knowing something is *not* necessary for someone
> else losing privacy about that thing. (Fallis 2013: 153)
> 
> 
> 



For Kappel, it



> 
> 
> seems obvious that informational privacy has an epistemological
> component; privacy or lack of privacy concerns certain kinds of
> epistemic relations between a cogniser and sensitive pieces of
> information. (2013: 179)
> 
> 
> 



In his paper, Kappel aims at



> 
> 
> [shedding] some light on the epistemological component of
> informational privacy [since] the nature of this epistemological
> component of privacy is only sparsely discussed. (2013: 179; see also
> the entry on
>  privacy and information technology)
> 
> 
> 


### 4.10 Privacy, Surveillance, and Power



Since the publication of the essay by Warren and Brandeis, there have
been enormous technological advances that have radically transformed
not only the possibilities for keeping people under surveillance, but
also our concepts of privacy, as well as freedom and autonomy.
Opportunities for monitoring people are now available in private
households, public spaces, and when surfing the Internet. The spaces
of freedom in the *public sphere* could not exist under
permanent (potential) surveillance and social control, and certainly
not if we can no longer be sure about what data being collected, and
into whose hands it might fall (see Julie Cohen 2008 for more on the
relationship between privacy and visibility in the networked
information age). If we can no longer be certain that we are not being
surveilled and controlled, then we cannot even openly and
*self-determinedly* debate potentially critical positions with
others (Stahl 2016: 33-39; Rosen 2000: 207). Control and
standardization (or normalization) are two sides of the same coin. In
the face of increasingly pervasive data collection and digital
surveillance, some authors have sought to move away from
understandings of privacy that build on the notions of control over
information or secrecy. Brunton and Nissenbaum, for instance, have
observed a variety of practices that sought privacy through
"obfuscation", i.e., the "deliberate addition of
ambiguous, confusing, or misleading information to interfere with
surveillance and data collection" (2015: 1). The German
sociologist Carsten Ochs suggests that these obfuscation practices
correspond to a new type of informational privacy, which emerges in
response to the specific challenges of a digitalized society and which
he characterizes as "concealment"
("*Verschleierung*") (2022: 496).



Brunton and Nissenbaum argue that obfuscation is a



> 
> 
> tool particularly suited to the "weak"--the
> situationally disadvantaged, those at the wrong end of asymmetrical
> power relationships. (2015: 9)
> 
> 
> 


 It is useful to address the information asymmetry between those
who collect data and can use it to monitor, predict and influence
behaviors, and those whose data is collected and who may not even be
aware of this data collection and usage (Brunton & Nissenbaum
2015: 48-51). These observations point to the relation between
privacy and power, which has received significant attention in the
recent literature. The erosion of privacy through data collection and
processing increases the power of big technology companies and
governments to influence the people whose data is collected
(Veliz 2020). Privacy is also a matter of power, insofar as
access to privacy is unequally distributed and marginalized groups are
more vulnerable than others to privacy invasions. The legal theorist
Skinner-Thompson (2021) has documented how minority communities, such
as religious, ethnic or sexual minorities, are disproportionally
exposed to surveillance due to a lack of legal protections of
privacy.



Here, we would also like to draw attention to the computer
intelligence consultant Edward Snowden, an employee at the NSA, who in
2013 published highly classified data from the NSA where he was
working. These data revealed global surveillance programs by different
states and the disclosure prompted many heated cultural debates in
different countries, as well as international academic debates. From
the beginning, one of the questions was whether Snowden had actually
violated the privacy of individuals or whether the publication of
*state secrets* should be judged differently than the
publication of individual secrets; see Mokrosinska on the difference
between secrecy and privacy (Mokrosinska 2020). On the general privacy
issues involved in this affair, see Greenwald 2014; Rubel 2015;
MacNish 2018; Lucas 2014. For the general societal debates, the
Snowden revelations were significant in drawing new attention to
structural forms of surveillance and possible violations of
privacy.



In analyses of the new "surveillance state", many authors
discuss the different social contexts in which violations of
informational privacy may in various ways coincide with restrictions
of freedom. Zuboff (2019) analyses and criticizes the surveillance
capitalism and the "instrumentarian power" of this
surveillance state, where privacy is only seen as data and therefore
as a tradable good. At the same time, she criticizes the process of
transforming personal life into behavioral data and commercial
products. For Zuboff, personal data is not a commodity that should be
traded arbitrarily, since it is essentially constituted by human
experience (see also Roessler 2015; Wang 2022). Susskind's
discussion of "future power" as the power to
"scrutiny" and to "perception-control" (2018)
is equally critical and pessimistic about the protection of
informational privacy in the surveillance state. Similar pessimism is
expressed by Harcourt (2015), who conceptualizes the decline and loss
of privacy as the loss of the individual. At the same time, he calls
for forms of civil disobedience in the surveillance state (2015). For
the political abuse of data power, see Cadwalladr and Graham-Harrison
(2018) on the so-called Cambridge-Analytica Scandal.



Specific aspects of the surveillance state are highlighted by authors
using the concept of data colonialism, which brings out the persistent
exploitative power inherent in datafication (Wang 2022). The term
"colonialism" is connected to cruel practices of
domination and exploitation in human history. As Couldry and Mejias
(2019) emphasize, "data colonialism" is not used to
describe the physical violence and force that was often seen in
historical colonialism, but at the same time, the frame of colonialism
is not used "as a mere metaphor" either. Instead, the term
is used "to refer a new form of colonialism distinctive of the
twenty-first century" (2019: 337), which involves a widespread
dispossession and exploitation of our human lives. By using the term
"data colonialism" instead of "data
capitalism", or some similar formulation, the crueler side of
"today's exposure of daily life to capitalist forces of
datafication" is highlighted (2019: 337; see also Thatcher,
O'Sullivan, & Mahmoudi 2016: 994).


### 4.11 Privacy, Colonialism, and Racism



More specifically, racist structures and colonial heritage play a
constitutive role in the conceptualization of privacy. Fraser (1992)
analyzed the simultaneous constitution of privacy and the public
sphere, in a cogent interpretation of the hearings for the
confirmation of Clarence Hill to the US Supreme Court. Race, sex and
class were the determinants of the construction of privacy:



> 
> 
> The way the struggle unfolded, moreover, depended at every point on
> who had the power to successfully and authoritatively define where the
> line between the public and the private would be drawn. It depended as
> well on who had the power to police and defend that boundary. (Fraser
> 1992: 595)
> 
> 
> 



Nagel (1998a and b), meanwhile, is critical of this theory of
interdependence of the concepts privacy and the public sphere, but the
idea that personal privacy is deeply connected with societal and
political power relations plays an important role in the literature
from the last decade. There has been intensified research on the
racist and colonial constructions of privacy. Couldry and Mejias
(2019) generally criticize the relation between big data and the
contemporary subject, while Arora (2019) argues more specifically that
that many assumptions about internet use in developing countries are
wrong, since they presuppose a Western conception of this use and the
idea of privacy in talking about and dealing with the Global South. In
her work, she analyses the real-life patterns of internet use in
different countries (among them India and China) and seeks to answer
questions why, for instance, citizens of states with strict
surveillance policies seem to care so little about their digital
privacy (Arora 2019: 717).



Translating human life into commodified data relations is not new, but
rather a fact that has been critically examined by many scholars over
the years. For example, Shoshana Zuboff (2019) has commented on the
drive toward continually increasing data extraction as the essence of
surveillance capitalism. From a different angle, Simone Browne
interprets the "condition of blackness" as the key with
the help of which state surveillance can precisely record and regulate
the lives of subjects. Her book shows exactly how state surveillance
emerged and learned from practices of colonial exploitation and
slavery. Surveillance, Browne asserts,



> 
> 
> is both a discursive and material practice that reifies boundaries,
> borders, and bodies around racial lines, so much so that the
> surveillance of blackness has long been, and continues to be, a social
> and political norm. (2015: 1)
> 
> 
> 



Again, from the societal perspective of class and race, Bridges (2017)
demonstrates in which ways the protection of personal privacy is
deeply connected to class and race, and how it can be used to
exacerbate the structures of social inequality. She points out that
the poor are subject to invasions of privacy that can be perceived as
gross demonstrations of governmental power without limits.


### 4.12 The Future of Privacy



Over the last years, discussions have begun regarding the question of
what lies "beyond privacy". Since most big technology
companies have been forced to conform to privacy laws, and even
advertise their compliance, a significant question is whether a sort
of "privacy-washing" is occurring, where the very focus on
privacy undermines the interests which originally initiated those
privacy concerns. Projects like "The Privacy Sandbox",
where Google, together with the advertisement-technology industry,
developed seemingly privacy-friendly alternatives to third-party
cookies, may be seen as cases of "privacy-washing". Behind
these supposedly good intentions lie fundamental questions about the
future of privacy, as well as the future of the internet. For example,
do we even want an internet that runs on personalized advertisements
and massive data collection? Brunton and Nissenbaum are concerned
that



> 
> 
> information collection takes place in asymmetrical power
> relationships: we rarely have choice as to whether or not we are
> monitored, what is done with any information that is gathered, or what
> is done to us on the basis of conclusions drawn from that information.
> (2015: 49)
> 
> 
> 



Sharon demonstrates that



> 
> 
> in an interesting twist, the tech giants came to be portrayed as
> greater champions of privacy than some democratic governments. (2021:
> 45)
> 
> 
> 



Thus, if we look back to the beginnings of informational privacy in
the late nineteenth century, we can see that the apparent changes (the
corporations themselves seem to care about privacy) express the very
continuities of the threat to privacy. The academic and societal
debates about these threats, however, make it clear that privacy has
by no means lost its value and importance.