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
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
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:
- unlawful house searches by the police force
- unlawful house searches by the police force, combined with unlawful body searches
- 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
- publication of embarrassing personal facts; forced confessions
- criminalization of consensual sex between adults
- criminalization of gay or interracial marriage; publication of addresses of convicted pedophiles
- excessive regulation of private associations (businesses, churches etc.); journalists being forced to reveal their sources.
See also this previous post on the subject.