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:

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:

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.

Poverty and Privacy

The poor suffer certain specific violations of their right to privacy, and it’s fair to say that in general poverty means less privacy. Being poor often means having substandard housing. Without a proper house, or without a house at all, it’s much more difficult to be private. Furthermore, poverty often implies that people live together in “extended families”, perhaps even with others who aren’t family at all, strictly speaking. And this also reduces privacy in several ways (most obviously the intimate side of privacy).

In addition, being poor means being dependent on government welfare. But in order to benefit from welfare payments, tax credits, subsidies etc. the poor have to prove that they are indeed poor. Hence they have to divulge personal information to the government, and the government has a right to check this information. Some governments even have the right to do home searches in pursuit of welfare fraud.

If you view abortion as an aspect of privacy, then there’s an additional way in which poverty hurts privacy: the poor, because they have less access to birth control, will want to engage in abortion more often, and will therefore have their privacy violated by anti-abortion laws. Because the poor use public transportation more often, they are more likely to be tracked by police surveillance systems. They represent a disproportionate part of the prison population, and prison life obviously isn’t good for privacy. The poor are also more likely to be illegal immigrants, and therefore subject to control by the competent government agencies.

On the other hand, being poor allows people to avoid some types of privacy invasion: they use the internet less and hence are less at risk of internet related privacy violations; the poorest of the poor are less likely to take credit (credit means telling the bank about your income, spending, previous credit scores etc.) or to enroll in fidelity schemes (in which the use of a fidelity card tells the shop what you consume). Perhaps they won’t be taxed as much – or at all – and therefore don’t have to divulge private information to the tax authorities.

Still, on balance poverty is likely to have an adverse effect on privacy. Some even say that the poor are targeted by the government and that they are discriminated in their right to privacy simply because of their poverty. For instance, the way in which governments do home searches in pursuit of welfare fraud would be unthinkable if it were directed at other purposes and other social classes. It seems that the poor don’t only lose their privacy but also their right to privacy.

And poverty often also means the forfeiture of other, non-privacy rights. Simply begging or being homeless can still land you in jail and can get you kicked out of public places. In most countries, the days are gone when poor people were sterilized against their will, excluded from the vote, their children taken away from them etc. But in many parts of the world, poor children are still discouraged from going to school and forced into labor or warfare. Healthcare for the poor is still a problem, even in some developed countries, making it less likely that their health rights are respected. So don’t tell me poverty isn’t a human rights issue.

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:

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.).