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Privacy Rights theory The right to privacy Privacy and the internet.

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1 Privacy Rights theory The right to privacy Privacy and the internet

2 Issues about privacy Privacy affords us seclusion, intimacy, secrecy and autonomy We need privacy because we act differently than when under surveillance It’s easy to value in the abstract Hypocrisy is also seen as a cover for deceit, hypocrisy and wrongdoing The right to privacy often stands in the way of a proper debate on issues of moral significance

3 Rights Theory

4 Rights and applied ethics Examples considered on this course: Euthanasia: the right to die Abortion: the rights of the foetus and mother Genetic selection: rights of parents and future children Climate change: rights of developed and developing nations and also the rights of future generations World poverty: rights of those who give and those who are in need

5 Analysing rights Two main ways of analysing rights: 1.Their form: a description of the internal structure of rights 2.Their function: a description of what rights do for those who hold them

6 Form or structure of rights Rights are complex things composed of smaller parts (i.e. rights are the specific arrangement of basic components). There are four kinds of basic components: 1.Privileges (or liberties): to say you have a right to do something is to say that you have no duty not to do something. 2.Claims: some rights are based on claims, such as the contract between employer and employee. 3.Powers: if you give me your phone, you transfer to me a range of rights. 4.Immunities: we have immunity when another person or an institution doesn’t have a certain power.

7 Form or structure of rights What rights have in common: 1.Rights imply restrictions on the actions of other people. So if you have a right, then there is something that someone else may not do. 2.Rights are relational in the sense that when someone has a right there is always someone else who owes something to the right-holder. 3.Rights indicate that something has priority over consequentialist considerations.

8 Functions of rights Two ways of understanding what rights do for those who hold them: Choice theories (also called ‘will theories’) A choice theory holds that all rights protect the choices of the right-holder. Interest theories (also called ‘benefit theories’) Interest theorists hold that the function of a right is to further the right-holder’s interests.

9 The Right to Privacy

10 Defining ‘privacy’ Claim, entitlement or right: Thinking of privacy as a claim, entitlement or right that we have, begs the question about the moral status of privacy. To say that that privacy is a claim, entitlement or right is to say that privacy is something to be protected. Although this characterisation tells us that privacy is morally significant, we have not been told exactly what it is that is morally significant.

11 Defining ‘privacy’ Measure of control: This is to think of privacy as the measure of control we have over information, or intimate aspects, of ourselves, and who has access to us. This doesn’t beg any moral questions, but the two don’t always align.

12 Defining ‘privacy’ State or condition: If we think of privacy as a state or condition of limited access, then we have privacy insofar as others don’t have access to knowledge about us. The problem with this conceptualisation of privacy is that it doesn’t address whether privacy is a desirable state, and how valuable it is in relation to other things.

13 The claim to privacy When we claim we have a right to privacy, what is it that we’re actually making a claim to having? E.g. – celebrity iCloud accounts E.g. – Snapchat leak

14 Thomson’s thesis ‘The Right to Privacy’ (1975) Thomson gives a sceptical treatment of privacy. While various privacy interests may be important, the significant moral issues at stake in privacy cases must be analysed in terms that are independent of privacy or the right to privacy. Because of this, privacy does not constitute a significant moral category in its own right. Her main claim in the article is that the right to privacy is actually a cluster of different rights.

15 Thomson’s thesis Cluster of positive and negative rights: The positive rights include: The right to sell it to whomever you like The right to tear it (or delete it) The right to look at it Positive rights are “rights to do certain things to or in respect of the picture” (Thomson 1975: 299) The negative rights include: The right that others shall not see it The right that others shall not sell it The right that others shall not tear it, or delete it

16 Thomson’s thesis E.g. French law banning the wearing of the burqa The right to one’s own person includes the right not to be looked at without permission. The right to one’s own person is analogous to the right to property. Thomson considers other rights, which sound silly, such as the right not to have your hair cut off when you’re sleeping, the right not to be stroked without permission and the right not to have your elbow painted green. All of these are rights over the person. In most cases, we waive these rights.


18 Thomson’s thesis Simplifying hypothesis “It begins to suggest itself, then, as a simplifying hypothesis, that the right to privacy is itself a cluster of rights, and that it is not a distinct cluster of rights but itself intersects with the cluster of rights which the right over the person consists in and also with the cluster of rights which owning property consists in.” (Thomson 1975: 306) She calls this hypothesis “simplifying” because it eliminates the right to privacy as anything distinctive.

19 Thomson’s thesis “But then if, as I take it, every right in the right to privacy cluster is also in some other right cluster, there is no need to find the that- which-is-in-common to all rights in the right to privacy cluster and no need to settle disputes about its boundaries. For if I am right, the right to privacy is “derivative” in this sense: it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy” (Thomson 1975: 313).

20 Consequences It follows that privacy does not constitute a significant moral category in its own right. Without specifically referring to the right to privacy, we won’t be able to account for the wrongness of certain actions (because we can’t make moral distinctions).

21 James Rachels Privacy is not analogous to property rights: “Exposing one’s knee or one’s face to someone may not count for us as physical intimacy, but exposing a breast, and allowing it to be seen and touched, does…By dissociating the body from ideas of physical intimacy, and the complex of personal relationships of which such intimacies are a part, we can make this “right over the body” seem to be nothing more than an un-grand kind of property right; but that dissociation separates this right from the matters that make privacy important.” (Rachels 1975: 332)

22 James Rachels Thomson (§8): are there any rights in the right to privacy cluster which aren’t also in some other cluster? E.g. gossiping So long as the personal information is got without violating a right, then your right to privacy is not being violated. Rachels: this violates your right to privacy, and this kind of information is exactly the sort of thing a right to privacy is meant to protect. The right to privacy doesn’t overlap exactly with the right to ownership and the right over the person because the right to privacy has a different point or purpose.

23 James Rachels Intimacy and the control of information The reason we tend not to pay in cash is because it’s inconvenient, and we’d rather do with less privacy than be even slightly inconvenienced. Privacy is a good, but it’s not the only one, and must be weighed against other goods. Charles Fried and James Rachels understand privacy as the control over information. Fried: “[i]ntimacy is the sharing of information about one's actions, beliefs or emotions which one does not share with all, and which one has the right not to share with anyone. By conferring this right, privacy creates the moral capital which we spend in friendship and love.”

24 James Rachels James Rachels: ‘Why Privacy is Important’ (1975) Rachels’ definition of privacy Two conditions that an adequate account of privacy should satisfy: 1.It would account for the importance of privacy in normal situations – situations in which an individual is not covering up something deplorable. 2.It would help to explain what makes certain information not someone else’s business, and will also account for the fact that prying is regarded as offensive.

25 James Rachels We change our behaviour depending on the relationship. Privacy is important for ordinary situations because it is central to a person’s ability to maintain varying kinds of relationships. Information about a person is appropriately sought only by those in relationships that warrant such an exchange of information. However, a consequence is that no information is inherently more private than any other information.

26 Jeff Reiman Critiques Fried and Rachels for claiming that intimate information is merely scarce information that individuals want to keep away from others. This view of intimacy “overlooks the fact that what constitutes intimacy is not merely the sharing of otherwise withheld information, but the context of caring which makes the sharing of personal information significant.” The ability to love and to care for others transcends the mere sharing of secrets. We should not focus too heavily on the notion of control and limited access, but rather the features of intimate relationships.

27 W. A. Parent In his article ‘Privacy, Morality and the Law’, Parent develops his argument in response to Judith Jarvis Thomson’s article. Thomson’s simplifying hypothesis leads to an ad hoc and tortuous way of dealing with cases. We can avoid these problems if we come up with an adequate definition of privacy.

28 W. A. Parent The condition of privacy: “Privacy is the condition of not having undocumented personal knowledge about one possessed by others. A person’s privacy is diminished exactly to the degree that others possess this kind of knowledge about him.” (Parent 1983: 269) 3 reasons why we would desire privacy: power, an intolerant society and our autonomy.

29 W. A. Parent “Now I want to suggest that anyone who deliberately and without justification frustrates or contravenes our desire for privacy violates the distinctively liberal, moral principle of respect for persons.” (Parent 1983: 277) Privacy is a moral value for people who also value freedom and individuality (and is not, therefore, a derivative right). The moral argument is not to condemn any violation of privacy, but wrongful invasions.

30 W. A. Parent The problem with Thomson’s argument is that she makes no attempt to define privacy. “We have good reason to ask how [Thomson] hopes to convince anyone that the right to privacy is derivative and quite dispensable without first telling us what the right means. My position is that once the meaning of privacy is clarified and its value articulated no one will have cause to question the legitimacy of our talk about a fundamental right of privacy.” (Parent 1983: 280)

31 Privacy and the Internet

32 The secrecy paradigm (Solove) The notion of secrecy leads to two very significant restrictions on privacy protection which cripple privacy law: 1.The notion of secrecy implies that when a person appears in a public place, he no longer has a reasonable expectation of privacy. 2.The notion of secrecy implies that when others view information about us, that information is no longer secret, and hence, no longer private.

33 Reconceptualising privacy The problem with the notion of secrecy is that it turns privacy into all-or-nothing. We should therefore abandon the notion of secrecy and recognise greater protections of privacy as well as confidentiality. People are more accepting of the fact that personal information is routinely shared with others, and that we leave a trail of information wherever we go. “Protecting privacy extends beyond the mere keeping of secrets. It also involves providing greater rights to control how information is disseminated and used” (Solove 2010: 22).

34 Reconceptualising privacy The internet presents old problems in new clothing. E.g. Copyright law has achieved a balance between freedom and control. In the US, the appropriation tort (one of the US privacy torts) is similar to copyright law. The appropriation tort prevents you from using someone else’s name or likeness for financial benefit. This should be expanded so that it conceives of privacy as more than a means to protect property. It should focus on the right of personal liberty. In this regard, the right to privacy should include the right to withdraw from the public gaze at such times as a person sees fit.

35 Reconceptualising privacy In addition to failing to protect privacy, the law is overprotective of free speech. E.g.

36 Amber Taylor “The experience of living online will only become more universalized, giving people more of a basis for judging people and information they encounter there. Privacy will recede from the heights it achieved during our brief period of wealth and atomization. Present notions of reputation will no longer apply; as multiple personas become more difficult to maintain. All this will result in a more accurate and humanized representation: we are who we are, warts and all, and the exposure of actions and beliefs that we now keep under wraps will result in changes in social norms. We need not fear the future, and despite Solove’s concerns, the temporary dislocation of the present is no great danger either.” (Amber Taylor, Partial Book Review: The Future of Reputation: 2007).

37 Reconceptualising privacy We should make greater efforts to protect our privacy. Many of our social norms are idealised standards of behaviour, and exposing peoples’ weaknesses won’t necessarily change the norms, as Taylor claims. We would never achieve complete transparency, nor would we want to. We are different people when we’re private and this is to be protected.

38 Take-home questions 1.Is the right to privacy derivative? 2.How is the Internet changing our attitudes to privacy? Should we think of privacy in terms of collective responsibility? 3.What is the relation between privacy and intimacy? 4.Should GCHQ be entitled to encroach on our privacy (e.g. access to emails and phone calls) to ensure greater security? 5.Is a convicted paedophile entitled to privacy on release from prison?

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