Privacy and the Encroachment of the Public

As Aristotle and John Stuart Mill observed, the private sphere sets limits, both normative and empirical, to the rights, powers, and obligations of others. The myriad forms of undue invasion of the private sphere, such as rape, burglary, or eavesdropping, are all crimes. Even the state this monopolist of legal violence respects these boundaries. When it fails to honor the distinction between public and private — when it is authoritarian or totalitarian it loses its legitimacy. Alas, this vital separation of realms is eroding fast.

In theory, private life is insulated and shielded from social pressures, the ambit of norms and laws, and even the strictures of public morality. Reality, though, is different. The encroachment of the public is inexorable and, probably, irreversible. The individual is forced to share, consent to, or merely obey a panoply of laws, norms, and regulations not only in his or her relationships with others, but also when solitary. Failure to comply and to be seen to be conforming leads to dire consequences. In a morbid twist, public morality is now synonymous with social orthodoxy, political authority, and the exercise of police powers. The quiddity, remit, and attendant rights of the private sphere are now determined publicly, by the state.

In the modern world, privacy the freedom to withhold or divulge information and autonomy the liberty to act in certain ways when not in public are illusory in that their scope and essence are ever-shifting, reversible, and culture-dependent. They both are perceived as public concessions; not as the inalienable (though, perhaps, as Judith Jarvis Thomson observes, derivative) rights that they are. The trend from non-intrusiveness to wholesale invasiveness is clear.

Only two hundred years ago, the legal regulation of economic relations between consenting adults a quintessentially private matter would have been unthinkable and bitterly resisted. Only a century ago, no bureaucrat would have dared intervene in domestic affairs. A Man’s home was, indeed, his castle. Nowadays, the right let alone dwindling technological ability to maintain a private sphere is multiply contested and challenged. Feminists such as Catharine MacKinnon regard it as a patriarchal stratagem to perpetuate abusive male domination. Conservatives blame it for mounting crime and terrorism. Sociologists, and the Church, worry about social atomization and alienation. Consequently, today, both one’s business and one’s family are open books to the authorities, the media, community groups, non-governmental organizations, and assorted busybodies.

This leads us back to privacy, the topic of this essay. It is often confused with autonomy. The private sphere comprises both. Yet, the former has little to do with the latter. Even the acute minds of the Supreme Court of the United States keep getting it wrong. In 1890, Justice Louise Brandeis (writing with Samuel Warren) correctly defined privacy rights as “the right to be left alone”; that is, the right to control information about oneself.

But, nearly a century later, in 1973, in the celebrated case of Roe vs. Wade, the US Supreme Court, mixing up privacy and autonomy, found some state regulation of abortion to be in violation of a woman’s constitutional right of privacy, implicit in the liberty guarantee of the Due Process Clause of the Fourteenth Amendment. But if unrelated to autonomy, what is privacy all about?

As Julie Inness and many others note, privacy the exclusive access to information is tightly linked to intimacy. The more intimate the act excretion, ill-health, and sex come to mind the more closely we safeguard its secrets. By keeping back such data, we show consideration for the sensitivities of other people and we enhance our own uniqueness and the special nature of our close relationships.

Privacy is also inextricably linked to personal safety. Withholding information makes us less vulnerable to abuse and exploitation. Our privileged access to some data guarantees our wellbeing, longevity, status, future, and the welfare of our family and community. Just consider the consequences of giving potentially unscrupulous others access to our bank accounts, credit card numbers, PIN codes, medical records, industrial and military secrets, or investment portfolios.

Last, but by no way least, the successful defense of one’s privacy sustains one’s self-esteem, or what Brandeis and Warren called “inviolate personality”. The invasion of privacy provokes an upwelling of shame and indignation and feelings of indignity, violation, helplessness, a diminished sense of self-worth, and the triggering of a host of primitive defense mechanisms. Intrusion upon one’s private sphere is, as Edward J. Bloustein observes, traumatic.

Incredibly, modern technology has conspired to do just that. Reality TV shows, caller ID, electronic monitoring, computer viruses (especially worms and Trojans), elaborate databases, marketing profiles, Global Positioning System (GPS)-enabled cell phones, wireless networks, smart cards: are all intrusive and counter-privacy. Add social policies and trends to the mixture police profiling, mandatory drug-testing, workplace keylogging, the nanny (welfare) state, traffic surveillance, biometric screening, electronic bracelets and the long-heralded demise of privacy is no longer mere scaremongering.

As privacy fades, so do intimacy, personal safety, and self-esteem (mental health) and with them social cohesion. The ills of anomic modernity alienation, violence, and crime, to mention but three are, therefore, directly attributable to diminishing privacy. This is the irony: that privacy is increasingly breached in the name of added security (counter-terrorism or crime-busting). We seem to be undermining our societies to make them safer.

---

Additional Reading
The Law of Technology and the Technology of Law: An Epistolary Dialogue
The Ghost in the Net: An Epistolary Dialogue