Types of Privacy

In light of the recent hullabaloo over spying by the NSA, it’s useful to think a bit about the nature and justification of privacy. Privacy is a human right. It’s the right to seclude yourself or something about yourself and to restrict access by others to you own area of petty sovereignty. This area can have a bodily or physical dimension, but also an informational, relational or spatial one. Positively stated, the right to privacy is the right to appear in a selective and self-chosen way. (See also article 12 of the Universal Declaration).

Our understanding of this right is clouded because of the controversies about the exact borders of our private world and about what should or shouldn’t be a part of that world. Different people and different cultures at different times in history allow(ed) more or less intrusion, and opinions differ also about the need to reduce those borders as a means to protect other rights (security in an age of terrorism, free speech for investigative journalists etc.; more on the general problem of balancing different rights is here). The development of technology also makes it harder and harder to decide what should or shouldn’t be private (e.g. 50 years ago no one worried about DNA registers, gene patenting or CCTV).

Our understanding is also clouded because there are in fact many different types of privacy or different types of private worlds grouped under a single word: there’s the intimate, the domestic etc. Some types of privacy have a stronger moral claim than others, and the balancing with other non-privacy rights should also be done differently for different types of privacy. So there are in fact many different privacy rights.

Let’s have a look at some of the possible types of privacy and privacy rights. I’ll give you my own idiosyncratic classification consisting of 10 types. These types often overlap, of course, and the distinctions may seem a bit forced at times. Still, I think it’s useful to distinguish types of privacy because each type can be violated in a different way. In the list that follows, I’ll also mention some of the ways in which each type of privacy right can be violated. That doesn’t mean that all those violations are always unjustified. Some of them may be justified limitations of rights rather than violations.

1. Informational privacy

People have a right to decide what kind of undocumented information about themselves can be communicated, and how. Within limits of course. A criminal suspect can be forced to reveal some personal information (even if there’s a general right to remain silent). By default, however, people’s personal history or characteristics should remain secret. Examples of ways in which this type of privacy right can be violated are:

• publishing people’s income data or some embarrassing personal facts without their consent
• publishing lists of pedophiles on the internet
• keeping DNA registers
• reporting the names of suspects or defendants in court cases
• doing background checks on employment candidates.

2. Mental privacy

A more specific version of information privacy is mental privacy. People have a right to keep their thoughts and feelings to themselves, given certain limitations. Violations of this right include:

• workers who have to fill in a signed worker satisfaction survey
• forced confessions.

3. Bodily privacy

Another more specific version of information privacy is bodily privacy, a type of privacy that serves to protect people’s intimacy. Violations of this right include:

• giving unauthorized people access to medical records
• security agents doing a body scan or a cavity search.

4. Anonymity privacy

Yet another more specific version of information privacy is anonymity privacy. People have, in certain circumstances, the right to be unnoticed and unnamed. Violations of this right include:

• people are required to have, carry and present identity cards
• journalists are forced to reveal their sources
• a ballot that isn’t secret.

5. Relational privacy

Another specific version of information privacy is relational privacy. People have a right to keep some of their relationships or some characteristics of some relationships secret. Violations of this right include:

• a government outlaws some types of consensual sex or marriage between adults
• a government engages in wiretaps or opens written correspondence.

6. Associational privacy

A subtype of relational privacy is associational privacy. Some associations have a right to keep some things secret. Violations of this right include:

• a corporation is forced to divulge trade secrets, recipes, etc.
• church communities are forced to grant access to their rites.

7. Activity privacy

A final version of information privacy is activity privacy. People have a right to move in public spaces without being noticed, tracked or named. Violations of this right include:

• excessive use of CCTV camera’s
• GPS tracking, for example of convicted criminals (as an alternative to incarceration).

8. Residential or domestic privacy

Non-informational privacy includes residential or domestic privacy. People have a right to refuse access to their homes. Violations of this right include:

• police officers searching someone’s house without a warrant
• trespassing
• stalking.

9. Property privacy

People have a right to exclude interference with their property. This right to property privacy overlaps with but is slightly different from the classic private property right in the sense that it can be violated without people’s property being taken away from them. Violations of this right include:

• some forms of property searches by law enforcement officers
• some forms of property prohibitions (e.g. obscene material).

10. Spatial privacy

People have a right to their own living space and the right to exclude others from this space, even if this space is not a house. Inmates, for example, although they don’t live in their own house and can’t regulate access to their cells, nevertheless have a right to spatial privacy. Violations of this right include:

• prison conditions that are so bad that inmates have to live too close to each other
• homelessness.

In the general scheme of spheres of life, our private world is not just distinct and separated from the sphere of government intervention, law and politics. It’s also distinct from the sphere of publicity and civil society, since we also have to be protected against violations of our privacy by fellow citizens.

The private sphere can be divided in 4 sub-spheres: the self/mind, the body, the home/space and relationships/associations. Each sub-sphere would cover 1 or more of the 10 types of privacy:

• the self/mind sphere covers informational privacy, mental privacy, anonymity privacy, activity privacy and property privacy
• the body sphere covers informational privacy and bodily privacy
• the home/space sphere covers residential or domestic privacy as well as spatial and property privacy
• the relationships/association sphere covers relational and associational privacy.

In the examples given above of invasions into the private sphere, I haven’t expressed my opinion on the legitimacy of those invasion. All I claimed was that the right to privacy isn’t absolute and that some limitations/violations of that right will be necessary. I can now give some examples of what I believe are illegitimate invasions of certain sub-spheres of the private sphere:

1. unlawful house searches by the police force
2. unlawful house searches by the police force, combined with unlawful body searches
3. excessively intrusive security checks and body scans outside of the home (e.g. at the airport); excessive use of DNA registers; unauthorized access to medical records
4. publication of embarrassing personal facts; forced confessions
5. criminalization of consensual sex between adults
6. criminalization of gay or interracial marriage; publication of addresses of convicted pedophiles
7. excessive regulation of private associations (businesses, churches etc.); journalists being forced to reveal their sources.

See also this previous post on the subject.

Crime and Human Rights (15): The Criminalization of Poverty

A lot of jurisdictions have so-called “public order laws” making it illegal to do what poor people do, and therefore in a sense making it illegal to be poor. “Crimes of misery” include begging, loitering, littering, sitting on sidewalks, lying down on benches, urinating in public, selling in the streets without a license and other things poor people, and especially the homeless, tend to do and often have no choice but doing. Some of those activities may be a nuisance and an unpleasant sight, and even blameworthy when non-poor citizens engage in them, but they’re not an avoidable choice when you’re poor and homeless.

Hence, public order laws disproportionately target poor homeless people who, in addition, have a hard time respecting them. Poverty and homelessness unavoidably result in violations of the law. Ostensibly, there is nothing discriminatory about such laws. If a millionaire were lying on a sidewalk, he would also be in violation of the ordinance. In the words of Anatole France, “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” But, of course, the rich have better things to do.

If activities that are unavoidable parts of life on the streets are forbidden, then it’s not outrageous to claim that deep poverty itself is a crime. If you add to this the fact that many of the homeless are mentally ill, chronically alcoholic or drug addicted, then it’s obvious that their daily conduct will inevitably put them on the wrong side of the law. Even people who try to assist the homeless are sometimes legally forced to stop. Communities often don’t welcome charities that attract homeless people. They fear that the neighborhood may become less appealing as a result. Hence they impose rules limiting the number of meals that soup kitchens may serve, use zoning laws to stop churches from serving food, issue park ordinances outlawing food distribution in public places etc.

It’s obvious that the criminalization of poverty is another poverty trap. A criminal record, jail time or fines won’t help if you’re struggling to get off the streets.

And it’s not just the homeless. Low-wage workers are often subjected to constant suspicions of theft and drug use: they are monitored with CCTV during the working day, they are searched when leaving their shift and tested for drugs when they’re hired. Welfare recipients are fingerprinted, photographed and interrogated about their attempts at finding a job or about the true paternity of their children, supposedly to prevent welfare fraud. Access to public housing comes with a drug test. Etc.

The war on poverty is all too often a war on the poor.

More posts in this series are here.

Why Do We Need Human Rights? (23): Privacy, Justifications and Objections

The right to privacy has become increasingly important and contested. Here are just a few examples of areas in which violations of privacy have become more common over the last decades:

• Public safety: many governments claim that the war on terror requires the following limitations of the right to privacy (just as it requires limitations of other rights):
  • wiretapping
  • CCTV surveillance
  • data mining
  • airport security checks
  • drone monitoring
• Medicine:
  • the debate on abortion is now commonly framed as a privacy issue
  • there’s also the issue of genetic patenting
  • there’s mandatory drugs testing
• Employment:
  • background checks
  • monitoring of workers’ activities, either for safety reasons or for productivity reasons
• Transportation and road safety:
  • GPS tracking
  • Google Streetview
• Criminal justice:
  • sex offender registers
  • satellite tracking for criminals as an alternative to incarceration
• Commerce: sales tracking using fidelity cards or credit cards
• Etc.

Since it’s always good to cite the Universal Declaration when talking about human rights, here’s the article about privacy (#12):

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

Types of privacy

Privacy is what is called a cluster concept: it covers many different things, things which may seem unrelated at first sight. So, before I go on, here’s a short and tentative typology of different kinds of “privacies” (I’ll mention later what they have in common):

• Domestic privacy. People have a right to remain secluded and alone in their homes, to keep what happens in their homes and houses to themselves, and to repel intrusion. That’s mostly what is protected by the Fourth Amendment in the US. Issues related to obscenity or pornography laws for example also fall under this type of privacy.
• Personal privacy. People have a right to keep their thoughts, opinions, or feelings to themselves. The secrecy of postal communication for example falls under this type, as does the secret ballot.
• Physical (or intimate) privacy. People have a right not to expose their bodies, as well as a right to repel physical intrusion into their bodies. Abortion and some security checks belong here.
• Informational privacy. People have a right to control what happens to information about themselves (or their families), and to limit involuntary distribution or disclosure of such information. Information here means facts, whether embarrassing or not, rather than opinions. The latter are part of libel law. Information about sexual orientation or salaries is an example of informational privacy.
• Relational privacy. People have a right to keep some of the details about their relationships to themselves. This includes whom they have what type of sexual intercourse with. Sodomy laws violate this kind of privacy, as do laws regulating the use of contraceptives. People also have a right to decide without interference on the type of relationship that suites them best. This covers laws regulating interracial marriages, same-sex marriages etc.

(There’s also the concept of private property, but I think this can be separated from privacy issues, although private property of a home is obviously a necessary condition for domestic privacy, for example).

All these types of privacy have something in common: they are all about independence. Privacy protects an individual’s interest in making independent decisions about her life, family, home, lifestyle, relationships, behavior and communication. All these types of privacy are also about the restriction of access or intrusion. Privacy gives an individual the right to deny access or intrusion by others, more specifically access to or intrusion in her body, her home, her relationships, her mind and certain facts about her life. It’s a right to be let alone.

Justification of privacy

Privacy is justified because it restricts access. Some restrictions of access are necessary for personal identity. There is no “I”, no person, no individual without a border between me and the rest of the world. Such a border is an absolute requirement for the basic human need of personhood and individuality. If people have unlimited access to each other, then there simply won’t be any separate people left. People understood as separate entities require some level of privacy protection. The exact level of privacy and the justified intrusions into people’s private lives are not yet determined by this argument, but the need for some level of privacy and some limitations of intrusions is clear. Other justifications of privacy could be based on the interest people have in intimacy, close personal relationships etc. It’s clear that a world without privacy or even without strong privacy rights would be a horrible world indeed.

Objections to privacy

Some argue that there’s nothing special about privacy and that the concept doesn’t merit an independent existence, let alone legal protection. The many different interests protected by privacy can indeed be protected by other means, such as a right to private property, liberty, bodily security and integrity, or independence.

However, I’m not sure that this is true for all the interests protected by a right to privacy. And an independent notion of privacy gives at least an added protection, partly because of the strong roots of the notion in common language and belief.

Some go even a step further and consider privacy to be detrimental rather than merely superfluous. Marx, for example, viewed privacy as a symptom of an atomized and selfish society, intent on protecting the material self-interest of the haves faced with a possible revolt of the have-nots.

Some feminists as well have forcefully argued that privacy is detrimental to women because of its use as a shield to protect male domination, superiority and abuse. However, it’s not because a right can be abused that it loses all meaning. There wouldn’t be any rights left if that were the case. The challenge is to avoid intrusion in people’s private lives that go too far, while at the same time allowing intrusion that counters abusive private actions. The right to privacy is therefore not an absolute right. But it is a right, and feminists should remember that intrusions into the private sphere can also be detrimental to women (e.g. abortion legislation, forced sterilization etc.).

Terrorism and Human Rights (19): The War on Terror and the Right to Privacy

During an apparently never-ending war on terror (what could be the end of such a war?), people are quick to believe their “liberal” governments when they tell them that a bit less privacy is a cheap price to pay for more physical security.

However, many of those governments, because they claim to be “liberal” and “democratic”, feel uneasy about this. After all, if rights are tradeable like this, if they depend on the circumstance and should be surrendered when the circumstances become more difficult, what is left of them? They become a luxury for good times, rather than a safeguard in bad times. (Another sign of this is the way in which the war on terror is eating away at other rights as well, e.g. the right not to be tortured; but let’s stick to the right to privacy here).

Because of this unease, governments claim that the right to privacy isn’t really being sacrificed. “If you have nothing to hide, you have nothing to worry about”. It’s only the terrorists whose right to privacy is being limited. But in the meantime

• DNA databases are being established for almost entire populations
• CCTV is omnipresent
• “data mining” is used extensively (after all, how can you determine if someone is a terrorist if you haven’t first violated his or her right to privacy?)
• etc.

I don’t mean to imply that rights such as the right to privacy are absolute or that there can never be a good reason to limit one right for the sake of another. On the contrary. But limiting rights can only be done when there is a “clear and present danger” for other rights or for the rights of others. A vague and everlasting “war on terror” provokes limits on rights when there’s no such danger. Limiting rights becomes the normal MO of governments keen to prevent such a danger from ever occurring. And that’s unacceptable. Obviously, terrorism is a danger, but governments can only limit rights in order to prevent it when the danger is clear and present, and imminent. A general and vague fear of terrorism will not do.

Terrorism and Human Rights (7): Data Mining, Terrorism and Privacy

Data mining (also known as pattern recognition) is an anti-terrorist intelligence strategy. Data mining means bringing together different kinds of databases, linking them, and trying to identify suspicious patterns of individual behavior. The purpose is to prevent terrorist attacks. Suspicious behavior may indicate that such an attack is imminent, and data mining has been defended as the most important prevention tool.

If a Muslim chemistry graduate takes an ill-paid job at a farm-supplies store what does it signify? Is he just earning extra cash, or getting closer to a supply of potassium nitrate (used in fertilizer and explosives)? What if apparent strangers with Arabic names have wired him money? What if he has taken air flights with one of those men, with separate reservations and different seats, paid in cash? What if his credit-card records show purchases of gadgets such as timing devices? (source)

Intelligence services are routinely bringing together different data-bases such as

• credit card and payment data
• travel data, flight reservations, hotel reservations
• census data such as race, religion, occupation
• data on internet use, email and phone use
• police information such as convictions, known associates, fines for illegal photography
• CCTV data (e.g. from cameras situated close to extremist mosques)
• etc.

When all these data bases are linked, the value of the information they contain increases significantly. When intelligence services learn that someone travels to Afghanistan or Pakistan, it may not ring a bell. And anyway, there are too many people travelling to these places. But if they filter on those people who also read extremist websites, visit extremist mosques, have extremists associates, travel in the plane as other suspicious persons, have suspicious payments etc., then they may be on to something.

However, data mining may lose some of its benefits to the extent that terrorists are aware that this is happening and fine-tune their behavior. They know that much of this data mining is, by necessity, automated in computer programs which assign a “suspicion value” to certain activities or combinations of activities (the data bases are too big to do it any other way). So they can lower their suspicion score by regularly visiting very non-Muslim websites such as porn sites, or call telephone numbers of brothels.

Data mining may lose its effectiveness and has also been criticized as an invasion of privacy and a criminalization of behavior that is perfectly legal even if sometimes somewhat strange. Normally, invasions of privacy such as phone-tapping require a prior suspicion. Data mining means spying on people without such as prior suspicion, because suspicion can only be established as a result of mining, not beforehand.

It means spying on people in two different ways:

• The data bases used contain individual data that were not intended for use by intelligence services and that were often handed over by individuals on the assumption that the data would be treated confidentially.
• When a suspicion is established on the basis of data mining, more traditional means of surveillance come into play (phone tapping, observation etc.), which also violate people’s right to privacy.

Of course, privacy is not an absolute value and different types of rights need to be balanced – in this case the right to privacy of some and the right to physical integrity and security of others. And an assessment has to be made of the priority of one right compared to another. But it seems to me that treating every citizen as a possible terrorist, and looking at his or her individual and private data as a matter of routine, is way over the top. I would like to see some information of the number of terrorist plots foiled by data mining.

But privacy is not the only victim. If someone is labeled “suspicious” as a result of data mining, he or she may end up on a “watch-list” and may find it difficult to travel or find a job in certain places deemed risky (hospitals, fertilizer producers, government agencies etc.).