essay about right to privacy

Home — Essay Samples — Life — Freedom — The Right to Privacy: Personal Freedom in the Digital Age

The Right to Privacy: Personal Freedom in The Digital Age

Categories: Digital Era Freedom

About this sample

Words: 691 |

Published: Sep 16, 2023

Words: 691 | Pages: 2 | 4 min read

The significance of the right to privacy, historical development of the right to privacy, contemporary challenges, protecting the right to privacy, 1. individual autonomy:, 2. human dignity:, 3. democracy and free expression:, 1. data privacy:, 2. government surveillance:, 3. social media and cybersecurity:, 1. legal protections:, 2. technological solutions:, 3. digital literacy:, 4. ethical considerations:.

Cite this Essay

Let us write you an essay from scratch

450+ experts on 30 subjects ready to help
Custom essay delivered in as few as 3 hours

Get high-quality help

Prof Ernest (PhD)

Verified writer

Expert in: Information Science and Technology Life

+ 120 experts online

By clicking “Check Writers’ Offers”, you agree to our terms of service and privacy policy . We’ll occasionally send you promo and account related email

No need to pay just yet!

Related Essays

6 pages / 2750 words

4.5 pages / 1968 words

2 pages / 971 words

2 pages / 926 words

Remember! This is just a sample.

You can get your custom paper by one of our expert writers.

121 writers online

Still can’t find what you need?

Browse our vast selection of original essay samples, each expertly formatted and styled

Related Essays on Freedom

Thestruggle between power and freedom has been a central theme in societal development. The concept of juggernaut power, representing an unstoppable force that tramples over individual rights and freedoms, has been a recurring [...]

Freedom and security are two essential components of a thriving society, but they are not without their drawbacks. While freedom provides individuals with autonomy and independence, it can also lead to chaos and instability. On [...]

Freedom, Independence, Emancipation, and Happiness are concepts that have long captivated the human imagination. They are ideals that societies strive for, and individuals yearn to experience. In this essay, we will explore the [...]

In conclusion, America's gift to my generation is multi-faceted and complex. The education, diversity, and freedom that this nation provides have shaped me and my peers in profound ways. As a college student, I am grateful for [...]

The epithet “the Land of the Free” is a distinctive phrase commonly associated with America, a country that prides itself for awarding its people with equal opportunity and the freedom to pursue their dreams. Yet, American [...]

While there is arguably no justification for suicide, in the novel The Awakening by Kate Chopin, it is Edna’s act of freedom. The time period in which it happens, and the events that lead up to it only give a clear explanation [...]

Get Your Personalized Essay in 3 Hours or Less!

We use cookies to personalyze your web-site experience. By continuing we’ll assume you board with our cookie policy .

Instructions Followed To The Letter
Deadlines Met At Every Stage
Unique And Plagiarism Free

Chapter 22: The Right of Privacy

The right of privacy—the right to be left alone, as Justice Louis Brandeis once defined it—is fundamental to our understanding of freedom, but nowhere does the Constitution mention it. When Congress submitted the Bill of Rights to the people for ratification in 1789, privacy was not listed as a liberty that required protection from government. Yet today it is difficult to imagine American society without this right. How did privacy become an essential liberty?

For eighteenth-century men and women, privacy meant the right to be secure in one’s home, safe from the powers of government. The common law phrase, “A man’s home is his castle,” expressed this understanding. All Englishmen, whether in the Old World or the New, believed that “the poorest man may in his cottage bid defiance to all the forces of the crown,” as Sir William Pitt, former British prime minister, said in 1763. This definition of privacy made its way into the U.S. Bill of Rights, albeit indirectly, in two separate amendments. The Third Amendment restrained the government from housing soldiers in private homes; this amendment reaffirmed the English practice as expressed in the Petition of Right (1628). The Fourth Amendment protected homeowners from searches except for probable cause and only then with a properly approved warrant. These guarantees were important, but no one understood them to include the right to be left alone.What they meant instead was protection from arbitrary government.

Privacy in the sense of solitude and isolation—or an ability to have “my space,” as we call it today—was a luxury enjoyed only by the wealthy until the industrial age of the nineteenth century. Most people before then lived on top of each other, literally as well as figuratively. Houses were small and bare. Entire families often slept in one room; toilets were neither separate nor private. The opportunities for intimacy we take for granted simply were not available to most people. The wealth created by industrialization began to change this condition. Houses grew in size, as did the number of people who could afford them, and with these developments came more physical separation and more opportunity to be left alone. The choices offered by a burgeoning marketplace and the vast scale of the American continent also encouraged individualism to a degree unknown in Europe. With these changes came a new meaning of privacy. Now it became a valued part of individual liberty; people assumed that what they did beyond public life, in their own homes, was no one’s business but their own.

After the Civil War, both the rise of large cities and the emergence of new technologies reshaped the concept of privacy. Block upon block of tenement houses in New York City, Chicago, and other big cities re-created the crowded conditions of earlier times. Inventions such as the telephone and the camera made it possible to enter people’s homes and their private lives without physical intrusion. Among the developments most threatening to the sense of privacy was the inexpensive daily newspaper, which regularly reported on the lives of the rich and famous for the amusement of ordinary folks. The stories carried by the new mass media had the ability to ruin reputations, and it was this threat that led to the first laws to protect privacy. These measures allowed harmed individuals to sue for damages by recognizing a general right to privacy, but not a fundamental or constitutional right. Future Supreme Court justice Louis Brandeis captured this new meaning in “The Right to Privacy,” an important Harvard Law Review article in 1890 that outlined its common-law roots.

The Supreme Court began to consider a constitutional right to privacy in the 1920s. Cases involving the Fourth Amendment offered the first opportunity for the justices to consider privacy as a guaranteed right. In 1928, Justice Brandeis eloquently disagreed with the majority decision in Olmstead v. United States that wiretapping did not require a warrant because it involved no physical trespass. The framers of the Fourth and Fifth Amendments, he argued, “sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the one most valued by civilized men.” His views on wiretapping ultimately prevailed, as did his belief that privacy was a constitutionally protected right.

But what about other areas of privacy? What rights did citizens have to make private decisions without governmental interference? Or stated another way, in what private decisions did government have a legitimate interest? Clearly, the right to privacy was not absolute: even in their own homes, citizens could not, for example, commit murder or molest a child.Where did the right to privacy end?

In the 1960s, the use of a new technology—the birth control pill—raised this question in a case that became the basis for our modern understanding of a right of privacy. This case was different from many the Supreme Court has used to interpret the Bill of Rights. It involved an act of civil disobedience for the specific purpose of testing a law. Also, the plaintiffs were well-educated and respected citizens, quite unlike the “not very nice people,” as Justice Felix Frankfurter once labeled them, who were at the center of other rights controversies. The case did not lead to the cries of outrage that accompanied other expansions of rights in the 1960s, but it did set the Court on the path to its most divisive privacy decision, Roe v. Wade , which guaranteed a woman’s right to choose an abortion.

Estelle Griswold was concerned about the problem of world overpopulation. A religious, well-educated woman and wife of an advertising executive, she had worked in Europe after World War II with the Church World Service, helping to relocate the continent’s vast number of refugees. The experience shaped her views about the need to bring the world’s resources and its people in better balance. “A look at the slums of the world, at the chaos of a war-scorched earth, and you realize that life at the point of survival, where food, water and shelter are unobtainable is close to reversion to an animal order,” she wrote later. “Survival is first; civilization is second.”

It was this concern that led her to become executive director of the Planned Parenthood League of Connecticut. She became a crusader for birth control in a campaign that would last the rest of her life, but as she admitted, she really knew little about the subject. She had never seen a diaphragm, then the leading means of birth control, at the time of her interview. What she knew was that women needed to be able to control this most intimate part of their lives.

Regulation of sex and birth control had a tortuous history in Connecticut, as it did in the nation. One of the state’s best-known citizens in the nineteenth century was Anthony Comstock, a lobbyist for the Young Men’s Christian Association’s (YMCA) Committee for the Suppression of Vice. The son of Connecticut Calvinists and a lifelong advocate for religion, he rallied his fellow believers and persuaded Congress to pass the Comstock Act of 1873, which outlawed obscene and immoral materials from the U.S. mails. Among the banned items was anything “advertised or described in a manner calculated to lead another to use or apply it for contraception or abortion.” Six years later, the Connecticut legislature went further and banned the use of any birth control device. State courts interpreted the law also to mean that doctors could not prescribe these devices.

Each year, supporters of Planned Parenthood lobbied the legislature to revise or repeal the ban on the use of birth control—among all the states, only Connecticut took this extreme position—but each year they failed. It was an unfair law, they argued, and its burden fell disproportionately on poor women who either had to refuse their husbands or risk their health and the family’s pocketbook on an unwanted child. Planned Parenthood defied the law by opening clinics in Connecticut in 1935, but the police promptly shut them down. The legislature refused to repeal or modify the ban. Catholic presence was strong in the state, so the law persisted until the 1960s, even though by then it was largely ignored in practice.

It was this situation that Estelle Griswold was determined to remedy. With her allies, she identified two women whose health clearly would be endangered by a pregnancy and enlisted them to bring suit against the state for refusing to allow them to buy birth control devices. Their suit, Poe v. Ullman , made it to the U.S. Supreme Court in 1961, only to be rejected by the justices because of the state’s long-standing refusal to prosecute anyone for violating the statute. There was no fear of enforcement, the Court said, so no harm was done. It would not “be umpire to debates concerning harmless, empty shadows.” This rebuff spurred Griswold to turn the empty shadows into a real controversy. She opened a birth control clinic and set out to ensure that police had no choice but to arrest her for breaking the law. Acting on a complaint, police visited the clinic, where Griswold made certain they saw the banned activities and products. Even though the prosecutor normally declined to bring cases like this to trial, Estelle Griswold’s unwillingness to have the arrest dismissed led to her trial and conviction for violating the state law. She finally had the case that demonstrated harm.

When this case reached the Supreme Court in 1965, the justices sided with Griswold. Writing for the 7-to-2 majority, Justice William O. Douglas ruled that marital relations between a husband and wife were a basic “right of privacy older than the Bill of Rights.” The Constitution protected this right even if it did not mention it specifically. It was an implied right, one that was part of the “penumbra,” or shadow, of several amendments. The First Amendment, for example, contained a freedom to associate privately; the Third and Fourth Amendments protected the sanctity of private homes; the Fifth Amendment’s guarantee against self-incrimination allowed an accused person to keep information private. The majority also found the right of privacy guaranteed in part by the Ninth Amendment, which reserved to the people any rights not named in the Bill of Rights. Rights are expansive, not restrictive, and whenever fundamental rights are at stake, Justice Arthur Goldberg noted in a concurring opinion, the state must have a compelling purpose for abridging these liberties. Invading the “sacred precincts of marital bedrooms” was not a legitimate reason, Goldberg wrote.

Griswold v. Connecticut was a landmark case in establishing constitutional protection for the right of privacy, and it received widespread approval. For Estelle Griswold, it was vindication for a cause she held dear. Three months after the decision, she reopened the birth control clinic in New Haven, and she remained active in women’s causes until her death in 1981. By then, the right of privacy had come to include the right of women to choose whether or not to continue a pregnancy. Unlike the earlier decision, the right to an abortion unleashed a bitter debate that continues today and raises new questions about the limits of privacy in a free society.

In 1972, the Supreme Court extended the right of privacy by striking down a Massachusetts law barring the sale of contraceptives to unmarried couples. This decision was a prelude to Roe v. Wade (1973). The question in the Roe case was straightforward: did government have any compelling interest in a woman’s pregnancy? In language rooted in Griswold , the answer was “no,” at least not in the early stages of pregnancy. The right of privacy, the justices concluded, was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” although once the fetus became capable of living outside the womb, the state could intervene as long as the woman’s health or life is protected.

Roe raised profound moral and religious questions for many Americans: When does life begin? At what point does the state’s interest in protecting life outweigh the woman’s right to privacy, personal autonomy, and equality? Opinion polls continue to reflect a lack of public agreement on these questions. Most Americans support the right to privacy, including a woman’s control over her body, but they are uneasy with the idea that abortion might become a casual practice. The question raised by Roe is not whether abortion will continue to exist in the United States, but what is the extent of the constitutional protection?

Americans overwhelmingly want to keep government out of the bedroom, so the Court’s recognition of a fundamental right to privacy in this area receives broad support, as seen by Lawrence v. Texas , a 2003 case striking down a law that prohibited consensual gay and lesbian sex. Is abortion different? During the three decades since Roe , the justices have reaffirmed the right to privacy in matters of abortion but also have accepted some legislative limits on its practice. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court retreated from its position in Roe v. Wade . It allowed some restrictions on the woman’s right to choose, provided the government did not unduly burden or interfere with her ability to get an abortion. Among the limits the justices have found acceptable are laws mandating a twenty-four-hour waiting period, requiring doctors to provide information intended to discourage abortion, and restricting abortions for teenagers younger than a certain age, usually eighteen, if they do not have parental or judicial consent. Today, it is unclear if the justices will continue to trim the broad right it recognized in 1973. A reversal of the Roe decision would give states greater latitude to regulate or even outlaw abortion.

Controversies over privacy extend to more areas of modern life than the bedroom. New technologies are again pushing us to consider questions we have never faced before. Advances in medical technologies allow doctors to keep even critically ill patients alive for long periods of time, but can we keep people alive against their will? Do we have a right to die—or to have others make that decision for us, based on their understanding of our wishes, if we are incapable of making it for ourselves? In 1990, the Supreme Court faced this question for the first time and decided that the right of terminally ill patients to die was part of our right to privacy. Within a few years, all fifty states recognized this right, and a national law, the Patients’ Bill of Rights, required federally funded hospitals to respect patients’ decisions regarding their treatment.

How a person engages in sex should be irrelevant as a matter of state law. Sexual intimacy is a sensitive, key relationship of human existence and the development of human personality. In a diverse nation such as ours, we must preserve the individual freedom to choose, and not imply that there are any ‘right’ ways of conducting relationships.

Oregon extended the meaning of personal autonomy to include a right to doctor-assisted suicide, and in 2006, the Court refused to allow the U.S. attorney general to prosecute assisting doctors under federal drug laws. Further advances in medical technology doubtless will continue to raise questions that require a balance between our right to privacy and society’s interest in preserving life.

New communication technologies, including the Internet, also spur us to consider again our right to keep personal information private. Computers now capture reams of data about each of us, and this information helps to determine everything from our credit rating to the types of advertising we receive. Some of these data relate to things we expect to keep private, such as our medical records or our personal communications. What right do we have to this information, and what right do we have to keep it private? The questions have no simple answers. Knowledge of our purchasing habits allows marketers to provide us more of the goods we want, but it also may open us to sales pitches we prefer to avoid. Potentially far more serious in its consequence is the ability to capture new kinds of personal information, such as our DNA, as part of our medical care. Should insurance companies be allowed to use this information to set individual rates or to deny coverage to those who are genetically vulnerable to costly diseases? Should law enforcement or security agencies have routine access to our DNA, or do we have a expectation of privacy unless the government establishes probable cause to suspect us of a crime?

Increasingly, we as a society are trying to determine what privacy means in this brave new world of advanced technologies. The problem is not a new one. In his dissent in Olmstead v. United States , Justice Brandeis saw the threat to privacy that technical innovation posed to liberty: “Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” He warned that technology had the power not simply to make our lives more comfortable but also to threaten our liberty by invading our private lives.

The right to privacy is about defining the proper relationship between the individual and government. The founding generation aimed to permit individual citizens the widest latitude possible to live their lives and pursue their happiness without interference from government. It also vested sovereignty, or final authority, in the people at large, who in turn authorize elected representatives to act on their behalf. Our sense of democracy, as a result, rests firmly upon the idea of individual autonomy, or personal control over the decisions that affect us. The right of privacy supports our individuality, and it is our ability as individuals to make decisions, separately and collectively, about our present and our future that ultimately protects our liberty.

“The Right to Be Let Alone”

In 1890, overeager journalists attempted to crash an event hosted by a wealthy Boston lawyer-socialite, Samuel Warren, and his law partner, Louis D. Brandeis, who later became a justice on the U.S. Supreme Court. The two wrote an article, “The Right to Privacy,” for the Harvard Law Review that Dean Roscoe Pound of the Harvard Law School cited as “adding a chapter to our law.” The authors argued for a right of privacy or, as Brandeis later defined it in the wiretapping case of Olmstead v. United States (1928), “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Although the Constitution does not mention a right to privacy, the Supreme Court has inferred it from the language of the First, Third, Fourth, Fifth, and Ninth Amendments.

This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to man that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” . . . Of the desirability—indeed of the necessity—of some such protection, there can, it is believed, be no doubt . . . The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance . . .

[T]he protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. The principle which protects personal writings and all other personal productions . . . is in reality . . . the principle . . . of an inviolate personality.

Various Guarantees Create Zones of Privacy

Critics of the Supreme Court’s decision in Griswold v. Connecticut (1965), which recognized a right to privacy in marriage, chastised the majority justices because the Constitution does not mention a right to privacy specifically. Justice William O. Douglas, in the majority opinion, argued that the right can be inferred legitimately from the language of at least four amendments. He wrote about “penumbras, formed by emanations,” metaphorical language that suggested that the right was as logically related to the amendments as were halos around the sun or other celestial objects.

Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one . . . The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Arthur Goldberg, in his concurring opinion in Griswold v. Connecticut , relied on the little-used Ninth Amendment, which reserved any rights not listed in the Constitution to the people in his argument in support of the right to privacy.

The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” . . .

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization— surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

Table of Contents

Table of Contents
Random Entry
Chronological
Editorial Information
About the SEP
Editorial Board
How to Cite the SEP
Special Characters
Advanced Tools
Support the SEP
PDFs for SEP Friends
Make a Donation
SEPIA for Libraries
Entry Contents

Bibliography

Academic tools.

Friends PDF Preview
Author and Citation Info
Back to Top

Early debates on privacy began at the end of the nineteenth century, when the potential intrusion of photography and the (tabloid) press was first recognized. When contrasted with the concerns that we face today due to the smart devices surrounding us, collecting data, and influencing our opinions and behavior, the old worries look quite innocent. Recent technology has led to previously unimagined ways of obtaining information about people, for observing them, listening in on their conversations, monitoring their activities and locating their whereabouts. These are not simply “new technologies”: they fundamentally change the social practices in which they are embedded. Furthermore, the problem is not simply that having a smartphone enables companies to collect huge amounts of personal data, but that this data is used to create profiles of users that can be exploited for political and commercial purposes.

Yet there are also social changes of an entirely different sort that have, in various ways, produced constant shifts in the boundaries separating the private and the public realms. These changes include, for example, the fact that women can no longer simply be assigned to the realm of domestic and family labor but are increasingly playing—and wanting to play—an equal role in gainful employment and the public sphere. Another social change is that ever since the 1960s, intimacy and sexuality are no longer banished to the private domain but are now openly portrayed and displayed in a whole range of (social) media.

An analysis of these changes in the societal meanings of the private and the public shows that interest in re-conceptualizing privacy—which is embedded in a broader political and legal endeavor of finding and creating appropriate privacy protections—is due to three distinct social-historical processes. Firstly, recent developments in information technology threaten the protection of personal privacy in fundamentally new ways; secondly, there have been radical changes in the relation between the sexes, prompting a concomitant reconfiguration of the private sphere; and thirdly, there has been an intrusion of intimacy into the public realm through previously private themes that have turned public, accompanied by shifts in notions of individuality, subjectivity, and authenticity. These developments suggest that there is not one history of the concept of privacy, but that the rules that protect privacy today (and the reflection that has gone along with those rules) have been driven by developments and concerns in different political and social areas. The history of privacy may therefore include more than what counts as “private” at any particular time (Westin 1967; Elshtain 1981; Benn & Gaus 1983; B. Moore 1984; Ariès & Duby 1987; Weintraub & Kumar 1997; McKeon 2007; Vincent 2016; Igo 2018). Finally, these developments bring to light the thoroughly conventional nature of the separation between public and private life.

Against this background, we can see that there is no single definition, analysis or meaning of the term “privacy”, either in ordinary language or in philosophical, political and legal discourse. The concept of privacy has broad historical roots in legal, ethical, sociological and anthropological discourses. In this article, we will first focus on the histories of privacy in various discourses and spheres of life. We will also discuss the history of legislating privacy protections in different times and (legal) cultures. In the second part, we will consider a range of critiques of privacy—both domestic privacy and the right to privacy—and all the relevant arguments and counterarguments forming those debates.

The third part of this article is devoted to substantial discussions of privacy in the literature. This literature distinguishes between descriptive accounts of the meaning of privacy (which describe what is in fact protected as private), and normative accounts of privacy. We will also review discussions that treat privacy as an interest with moral value, and those that refer to it as a moral or legal right that ought to be protected only by social conventions or also by the law. As a starting point, we will look more precisely at the various meanings of “privacy”. We will present the semantics of the concept, which some authors claim to be not unifiable, only possessing a Wittgensteinian sense of family likeness (Solove 2008). The description of what is in fact protected as private is followed by normative accounts of privacy defending its value , and the extent to which it should be protected. The question of whether privacy has to be protected as a conventional interest, a moral right, or a legal right, has been contested for a long time.

The final section of this article is the longest and most extensive. There, contemporary debates on privacy in public discourse will be considered, as well as a range of philosophical, legal, and anthropological theories, from privacy and health to group privacy, the social dimensions of privacy, and the relationship between privacy and power. In the end, it will be concluded that the many debates regarding privacy, across very different fields of society, show that the problem of privacy determines to a large degree the personal, social and political lives of citizens. A free, autonomous life of well-lived relations—intimate, social, and political—is becoming increasingly endangered. Debates about privacy are therefore becoming more and more important, not just in academia, but in the societal public sphere as well.

1.1 The History of Conceptualizing the Private Sphere

1.2 the history of informational privacy, 1.3 history of legal protection, 2.1 thomson’s reductionism, 2.2 posner’s economic critique, 2.3 the communitarian critique, 2.4 the feminist critique, 3.1 semantics, 3.2 definitions and meanings, 3.3.1 intrinsic vs instrumental, 3.3.2 access simpliciter, 3.3.3 controlling access, 3.3.4 controlling access: three dimensions, 3.3.5 decisional privacy, 3.3.6 informational privacy, 3.3.7 local privacy, 4.1 recent debates on the value or function of privacy, 4.2 the conflict between privacy and other values or rights, 4.3 the cultural relativity of the value of privacy, 4.4 the democratic value of privacy, 4.5 group privacy, 4.6 social dimensions of privacy, 4.7.1 the datafication of life: work, 4.7.2 the datafication of life: commercial health apps, 4.7.3 the datafication of life: the privacy paradox, 4.7.5 the datafication of life: the quantified self and the duty to protect one’s own privacy, 4.8 the privacy of animals, 4.9 epistemological issues, 4.10 privacy, surveillance, and power, 4.11 privacy, colonialism, and racism, 4.12 the future of privacy, rights/regulations/decisions, other internet resources, related entries, 1. the history of privacy.

To understand the history of privacy, one must first consider

the history of the distinction between the private and the public sphere, in both ancient and modern liberal thought;
conceptualizations of informational privacy; and
the history of a legal right to privacy.

These notions are all connected. Separating them here is done principally for heuristic reasons.

Aristotle’s distinction between the public sphere of politics and political activity, the polis , and the private or domestic sphere of the family, the oikos , is the starting point for philosophical discussions of privacy ( Politics 1253b, 1259b). Aristotle’s classic articulation of the private domain is one of necessity, restriction, confinement, and subjection to the laws of nature and reproduction. For Aristotle (and for a modern Aristotelian such as Hannah Arendt), there is a clear social ontology that makes it seem natural for certain things, persons and activities to be regarded as private, and others as public. The private domain is the domain of the household,

the sphere where the necessities of life, of individual survival as well as of continuity of the species, [are] taken care of and guaranteed. (Arendt 1958 [1998: 45])

Although there has been persistent concern for domestic privacy throughout history and across many cultures (in cultural theory and [art] history, for instance; see Ariès 1960 [1962]; Ariès & Duby 1985&1987; Vincent 2016), in philosophical theory there remains a research-gap between Aristotle’s theory of privacy and the classical liberal theory, starting with Hobbes and Locke. This is in contrast to (art-)historical analyses, which comprehensively consider domestic privacy from the early Middle Ages until the early twentieth century (see especially the very informative Vincent 2016).

In liberal theory, the public/private distinction is taken to refer to the appropriate realm of governmental authority as opposed to the realm reserved for self-regulation, along the lines initially analyzed by Locke in his Second Treatise on Government (Locke 1690), and later by John Stuart Mill in his essay On Liberty (Mill 1859). The distinction arises again in Locke’s discussion of property, which can also be found in his Second Treatise . In the state of nature, all the world’s bounty is held in common and is in that sense public. But one possesses oneself and one’s own body, and one can also acquire property by combining one’s labor with it. These cases are considered one’s private property. In the liberal tradition, Rawls also distinguishes between the private (which includes the domestic sphere) and the public.

As will be discussed in §2 , classical liberal theory from Hobbes and Locke to Rawls, together with the naturalistic distinction between the private-as-domestic and the public, has been criticized by feminist and contemporary liberal thinkers. That the division between the private and the public is always conventional (and not natural) in character, has been maintained by almost all theories of privacy dating from the last five or so decades. New approaches to the theory of privacy call for a redescription of the private, and a reformulation of the idea of equal rights to privacy and freedom that is no longer inconsistent with the principles of a liberal democracy based on equal rights (Allen 1988 & 1989; Jean Cohen 1992 and 2002; see also §3 below).

The recent history of the moral right to informational privacy is linked to the liberal discourse on privacy and freedom. It found its start with a well-known essay by Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890; see also Gordon 1960; Prosser 1960; Glancy 1979; Keulen & Kroeze 2018: 32 and 44–45; Sax 2018: 147–150). Citing “political, social, and economic changes” and a recognition of “the right to be let alone”, which counts as the first definition of informational privacy, Warren and Brandeis argued that existing law afforded a way to protect the privacy of the individual, and they sought to explain the nature and extent of that protection (1890: 193). Focusing in large part on increasing levels of publicity enabled by the burgeoning newspaper industry and recent inventions such as photography, they emphasized the invasion of privacy brought about by the public dissemination of details relating to a person’s private life. Warren and Brandeis felt that a variety of existing cases could be protected under a more general right to privacy, which would safeguard the extent to which one’s thoughts, sentiments, and emotions could be shared publicly by others. Urging that they were not attempting to protect any items or intellectual property produced, but rather the peace of mind attained by such protection, they claimed that the right to privacy was based on a principle of “inviolate personality”, which was part of a general right to the immunity of the person, “the right to one’s personality” (1890: 195 and 215).

Warren and Brandeis believed that the privacy principle was already part of common law dealing with the protection of one’s home, but new technology made it important to explicitly and separately recognize this protection under the name of a right to privacy. They suggested that limitations on this right could be determined by analogy with the law of defamation and slander, and it would not prevent publication of information about public officials running for office, for example. Warren and Brandeis thus laid the foundation for a concept of a right to privacy that has become known as the right to control over information about oneself; their central and most influential concept remains the right to be left alone (1890: 193).

Although the first legal privacy cases after the publication of their paper did not recognize a right to privacy, it wasn’t long before public discourse, as well as both state and federal courts in the US, were endorsing and expanding that right. In an attempt to systematize and more clearly describe and define the new right of privacy being upheld in tort law, William Prosser wrote that what had emerged were four different interests in privacy :

intrusion into a person’s seclusion or solitude, or into his private affairs;
public disclosure of embarrassing private facts about an individual;
publicity placing one in a false light in the public eye; and
appropriation of one’s likeness for the advantage of another (1960: 389).

One could say that Prosser’s approach is in fact a legal one, since he is examining the right to privacy in tort law.

The history of informational privacy is rather short, as we saw, and although many developments have taken place since the 1960s, these are better discussed in the next section, as well as the systematic sections later in this article (but see Igo [2018] for a general overview of the modern American history).

During the twentieth century, the right to privacy was advanced to the status of a human right. It was a completely novel entry into the catalog contained in the Universal Declaration of Human Rights, and it is unusual in lacking any predecessors in state constitutions or basic laws. As Diggelmann and Cleis (2014: 441) have pointed out, “the right’s potential was dramatically underestimated at the time of its creation”. Having originated in a somewhat accidental manner, the right to privacy has since become one of the most important human rights (Weil 1963; Volio 1981; Michael 1994; Feldman 1997; Richardson 2017). Article 12 of the 1948 Universal Declaration of Human Rights reads:

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

20 years later, the same right was enshrined by Article 17, Paragraph 1 of the International Covenant on Civil and Political Rights (1966), albeit in slightly different terms.

Turning our focus to the history of a right to privacy in Europe in particular, Article 8 of the European Convention on Human Rights , drafted in 1950, reads somewhat differently while expressing the same idea:

Everyone has the right to respect for his private and family life, his home and his correspondence.

In 1981, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) provided specific rules for the protection of personal data (Dalla Corte 2020: 125). In 2000, with the Charter of Fundamental Rights of the European Union , there was for the first time a formal differentiation between the two rights: a right to privacy on the one hand, and a right to the protection of personal data on the other. This formal distinction was the first in an international declaration of rights. Article 7 of the Charter provides a right to “respect for private and family life”, and Article 8 provides a right to the “protection of personal data” (see also González Fuster 2014). The latter plays an important role in securing the right to informational privacy.

Further examination of the history of the rights to privacy and data protection in Europe, reveals several important developments. The first of these was the step taken in 1983 by the Federal Constitutional Court of Germany. In its landmark decision on the constitutionality of the 1983 Census Act, the judgment (BVerfG 65, 1(43)) was influential in designating the right to privacy as informational self-determination . The ruling stated that

[if] individuals cannot, with sufficient certainty, determine what kind of personal information is known to certain parts of their social environment, and if it is difficult to ascertain what kind of information potential communication partners are privy to, this could greatly impede their freedom to make self-determined plans or decisions. A societal order, and its underlying legal order, would not be compatible with the right to informational self-determination if citizens were no longer able to tell who knows what kind of personal information about them, at what time and on which occasion.

The next important step was taken in 1995, with the adoption of the Data Protection Directive by the European Union , which was a legally binding directive (Directive 95/46/EC) adopted by EU member states. The purpose of this directive was twofold: to harmonize data protection laws, so as to facilitate cross-border trade by companies, and to protect people’s rights and freedoms when their personal data are used. Thus, the directive was largely based on the rationale of market integration. In 2016, the Data Protection Directive was followed up in Europe by the General Data Protection Regulation (GDPR). The GDPR has been in law since 2016, but its provisions became enforceable only in 2018. The GDPR is the most consequential regulatory development in information policy in decades (see Lindroos-Hovinheimo 2021), imposing significant fines on companies that fail to comply. As Hoofnagle et al. (2019) explain, the GDPR brings personal data into a complex and protective regulatory regime. Many data protection principles (for instance about data security) have been incorporated into US law as well, albeit mostly in Federal Trade Commission settlements with companies (Hoofnagle et al. 2019).

The juridification and jurisdiction in the US, especially concerning a constitutional right to privacy, has taken a very different course. On the one hand, there have been many advances with respect to laws protecting informational privacy. While US data protection law is fragmented, there have been recent developments that may result in closer alignment with EU law (e.g., the California Consumer Privacy Act of 2018 and the American Data Privacy and Protection Act—the latter being a Bill introduced in the US House of Representatives in 2022).

On the other hand, the most significant focus in US law is on decisional privacy, the right to make decisions (here with respect to one’s body) without interference from others, i.e., on same-sex marriage and abortion. In 1965, a right to privacy, independent of informational privacy and the Fourth Amendment, was recognized explicitly by the Supreme Court. It has commonly been referred to as the constitutional right to privacy. The right was first recognized in Griswold v. Connecticut (381 U.S. 479), which overturned the convictions of the Director of Planned Parenthood and a doctor at Yale Medical School for dispersing contraceptive-related information, instruction, and medical advice to married persons. Justice Brennan’s explanation contained the now famous sentence:

The right to privacy gives an individual , married or single, the right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

The constitutional right to privacy was described by Justice William O. Douglas as protecting a zone of privacy covering the social institution of marriage and the sexual relations of married persons. (For further commentary, see Allen 1988; Jean Cohen 1992; Inness 1992; Tribe 1990; DeCew 1997; Turkington & Allen 1999.)

Despite controversy over Douglas’s opinion, the constitutional privacy right was soon relied on to overturn a prohibition on interracial marriage, to allow individuals to possess obscene matter in their own homes, and to allow the distribution of contraceptive devices to individuals, both married and single. However, the most famous application of this right to privacy was as one justification for a woman’s right to have an abortion, a right defended in the 1973 judgment of Roe v. Wade (410 U.S. 113). It has since been used in subsequent legal decisions on abortion. As the explanation formulated by Justice Blackmun famously put it,

this right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. ( Roe v. Wade , 410 U.S. 113 [1973]: 153; see Dworkin 1994)

Bork (1990), however, views the Griswold v. Connecticut decision as an attempt by the Supreme Court to take a side on a social and cultural issue, and as an example of bad constitutional law (for criticism of Bork’s view, see Inness 1992; Schoeman 1992; Johnson 1994; DeCew 1997).

Regardless of anything else it might be, the right to privacy was seen as a right that incorporates reproductive liberties. Precisely which personal decisions regarding reproductive liberties have been protected by this right to privacy has varied depending on the makeup of the Court at any given time. For example, in the 1986 Bowers v. Hardwick judgment (478 U.S. 186; Subsequently overturned in Lawrence v. Texas 2003), it was decided that this right did not render anti-sodomy laws in Georgia unconstitutional, despite the intimate sexual relations involved.

In June 2022, in Dobbs v. Jackson Women’s Health Organization (No. 19–1392, 597 U.S.), the Supreme Court (then with a majority of Conservative judges) overruled its previous decision in Roe v. Wade and Planned Parenthood v. Casey (505 U.S. 833 [1992]). The majority argued that abortion cannot be counted as a constitutional right, since the constitution does not mention it, and abortion was not “deeply rooted” in American history. More specifically, the court argued that the right to privacy implied by the Fourteenth Amendment does not include a woman’s right to abortion. As a consequence of Dobbs v. Jackson Women’s Health Organization , individual states have the power to regulate access to abortion (see Tribe 2022).

Note that the debate in the US is mostly focused on aspects of decisional privacy. In Europe, the right to same sex marriage, as well as the right to abortion, are conceived of as rights to personal freedom, and have therefore not been discussed in the context of theories of privacy. (For further commentary on this difference, see §3 .)

2. Critiques of Privacy

Reductionists are named for their view that privacy concerns are analyzable or reducible to claims of other sorts, such as infliction of emotional distress or property interests. They deny that there is anything useful in considering privacy as a separate concept. Reductionists conclude, then, that there is nothing coherent, distinctive or illuminating about privacy interests. Probably the most famous fundamental critique of a right to privacy stems from the work of Judith Jarvis Thomson (1975). Having noted that there is little agreement on exactly what a right to privacy entails, Thomson examines a number of cases that have been thought to constitute violations of the right to privacy. On closer inspection, however, Thomson argues all those cases can be adequately and equally well-explained in terms of violations of property rights or rights over the person, such as a right not to be listened to. Ultimately the right to privacy, on Thomson’s view, is merely a cluster of rights, consisting of several irreducible “grand rights” (for instance, the right to property), and a number of reducible “ungrand rights” (such as the right not to be subjected to eavesdropping, the right to keep one’s belongings out of view, and so on). The “right over one’s own person” consists of several ungrand rights, such as (amongst others) the right not to be looked at—but is itself not a grand right (Thomson 1975: 304–306). The different rights in the cluster can be fully explained by, for instance, property rights or rights to bodily security. Therefore, the right to privacy, in Thomson’s view, is “derivative” in the sense that there is no need to find what is common in the cluster of privacy rights, and it is also derivative in its importance and justification. Any privacy violation is better understood as the violation of a more basic right, e.g., the right not to be listened to.

This reductionist view was quickly discarded by Thomas Scanlon, who argues in a direct reply to Thomson’s thesis that we have, for instance, a general right not to be looked at that

[a]s far as I can see I have no such general rights to begin with. I have an interest not to be looked at when I wish not to be (…). But rights directly corresponding to these interests would be too broad to be part of a workable system. (1975: 320)

The right to privacy is grounded in “the special interests that we have in being able to be free from certain kinds of intrusions” (Scanlon 1975: 315). Scanlon’s reply to Thomson can be read as an attempt to find a common ground for different aspects of privacy (DeCew 1997; Rachels 1975; Reiman 1976; Gavison 1980; see also §3 and §4 ).

Raymond Geuss (2001), on the other hand, seconds Thomson’s reductionist line of criticism but adds to it a more fundamental consideration:

Judith Jarvis Thomson has argued very persuasively that this right does not exist in the sense that it fails to designate any kind of coherent single property or single interest. That does not mean that none of the various things that have come to be grouped under “privacy” are goods—far from it, many of them are extremely important and valuable—only that they are disparate goods, and the perfectly adequate grounds we have for trying to promote them have little to do with one another. (2001: 145)

The very distinction between private and public, he argues, already relies on the assumption that there exists a unified liberal distinction that is set in stone politically, and uncontested. But this assumption displays not only a mistaken conception of the distinction between public and private, but also a mistaken conception of politics. In “real politics”, all distinctions and values are contested. As a result, the liberal distinction is illusory and ideological. According to Geuss, this becomes apparent only when one recognizes the deep heterogeneity of privacy, its reducibility to other interests, and the plurality of very different values attached to its various meanings (Geuss 2001).

Richard Posner (1978) also presents a critical account of privacy. He argues that from an economic perspective, we should not assign a property right to the personal information of individuals, when doing so leads to economic inefficiencies. This theoretical claim is linked to an empirical claim that common law follows a similar economic logic. Posner does not appear to deny that there is something that we can call “privacy” and a “right to privacy”. Instead, he argues that the notion of privacy should be attributed in a different way, following an economic analysis of the distribution of property rights to personal information. Strictly speaking, then, Posner does not present a fundamental critique of privacy, but rather an account of privacy which is based on considerations of economic efficiency, and he argues that privacy is protected in ways that are economically inefficient. With respect to information, in Posner’s view privacy should only be protected when access to personal information would reduce its value (for example, allowing students access to their letters of recommendation makes those letters less reliable and thus less valuable, and hence they should remain confidential or private). Focusing on privacy as control over information about oneself, Posner argues that concealment or the selective disclosure of information is often used to mislead or manipulate others, or for private economic gain. The protection of individual privacy is therefore less defensible than others suppose, because it does not maximize wealth.

Communitarian approaches find it suspicious that many recent theories of privacy rely on the concept of individual (negative) freedom as the raison d’être for privacy, and it is this connection between privacy and freedom or autonomy that is called into question (see Roessler 2008: 699). Privacy in communitarian thought is instead conceived of as a realm or dimension of life concerned with specific practices , also (or even primarily) relevant to the community at large. Accordingly, these practices must be understood not as a realm to which the individual has a claim qua autonomous being, but as one conceded to the individual as a member of the community (Sandel 1982; Elshtain 1995; Etzioni 1999 & 2004).

The idea underlying the communitarian point of view, particularly that of Sandel (1982), is that liberal theories of privacy necessarily conceive the self as disembodied and egocentric in nature. This is not only inconsistent in epistemological terms but also normatively undesirable from a political perspective, because communities and communal practices already take priority over the formation of individual identity. Communitarians therefore claim that privacy should not primarily be understood as an individual right to (physical or sexual) self-determination, but rather as protection given to practices that depend on being sheltered from the view of others (Etzioni 1999: 183; 2004: 30). Etzioni’s concept of privacy comprises its decisional, informational, as well as local (the privacy of the home) aspects (Etzioni 1999). The communitarian viewpoint has been criticized, however (e.g., Jean Cohen 2002: 42). These critics argue that it is incorrect to hold that a theory of privacy based on the idea of individual freedom and autonomy cannot at the same time conceive of the self as relational in nature, and as constituted and contextualized in a variety of respects. Feminist theories of privacy insist that individual rights come before communal duties, because it is otherwise impossible to guarantee equal freedom to take decisions pertaining to one’s life and one’s body. In particular, communal practices and traditions may prove repressive and discriminatory, making an individual right to privacy indispensable (Allen 1988: 700; Fraser 1992; Morris 2000).

The feminist critique of the theorization of the private sphere starts by questioning the idea of the realm of privacy as that of the natural, of women, feelings, hearth and home, and of emotional care for the male members of society, as well as the raising of children. The “natural” coding of the separation between private and public, therefore, is one which follows precisely the borderline separation of the sexes (Okin 1989; Pateman 1989; Phillips 1991; Jean Cohen 1992; Fraser 1992; Landes 1998; DeCew 2015). The target of this feminist critique is classical liberalism, and it has been influential. Rawls—the most influential liberal thinker of the twentieth century—accepted at least part of this criticism as justified, and he revised his own theory as a result (Rawls 2001: 166).

However, in classical liberal theory there is a double interpretation of the private domestic realm. On the one hand, the private domain is valued positively as the domestic sphere that is sheltered; on the other hand, the private sphere is the sphere of women and therefore inferior to the public sphere, according to the coding of a patriarchal society. As a result, the domestic sphere (including the family) is valued and prized as the realm that is sheltered from the demands of a hostile world. However, it is associated with “women”, while the public sphere is associated with “men”. The private is thus characterized as inferior to the public, just as nature is considered inferior in relation to culture (Okin 1991).

In the history of privacy, we are confronted with yet another double reading: even though liberal theory since Hobbes and Locke has advocated equal liberties for all citizens, it has clung to a natural conception of privacy that patently contradicts the notion of equal rights. This is because it grants those rights to men only, and not to women (Locke 1690; Hobbes 1651). As feminist theory has argued, this seems to have little to do with nature and more to do with power and culture. Seen in purely normative terms, nature provides us with no argument as to why certain activities (or persons) should be considered “private”, and others “public” (Pateman 1989; Phillips 1991; Jean Cohen 1992; Fraser 1992; Ortner 1974 [1998]). The classical liberal moral (and later also legal) right to privacy and private freedom has to be separated from the natural interpretation, which is still looms large in the background of everyday culture.

It is necessary to examine the feminist critique from yet another angle. In principle, early radical egalitarian feminist approaches are skeptical with respect to any possible conceptualization of privacy. The best-known of these skeptical approaches is the one developed by MacKinnon (1987, 1989, 1991; see also Olsen 1991). For MacKinnon, the appeal to legal or moral rights to privacy is but a further manifestation of the attempt to push women back into an ideologically constituted realm of privacy defined as the non-political or pre-political, and only ever concede them rights insofar as they are seen as different or deviant. Privacy can be dangerous for women when it is used to cover up repression and physical harm inflicted on them, perpetuating the subjection of women in the domestic sphere and encouraging non-intervention by the state. Such a concept of privacy, according to MacKinnon, fails to call the sexual hierarchy into question. Instead, it simply preserves the social power structures that find expression in the correlation of women with the private, and men with the public.

In response to MacKinnon’s argument, one objection is that it fails to make a clear enough distinction between a natural, pre-political concept of privacy on the one hand (which is rejected not only by MacKinnon herself, but also by other theories of privacy) and a legal-conventional concept of privacy on the other (Allen 1988; Jean Cohen 1992). A more reasonable view, according to Anita Allen (1988), is to recognize that while privacy can be used as a shield for abuse, it is unacceptable to reject privacy completely based on harm done in private (see also DeCew 1997: 86). A complete rejection of privacy would result in everything being made public, leaving the domestic sphere open to complete scrutiny and intrusion by the state. Allen and other theorists (such as Pateman 1989: 118–136; see especially Jean Cohen 1992) suggest that societies in general, as well as traditional conceptual divisions between the private and the public, can be criticized and revised (or, as Cohen [1992] puts it, “redescribed”). Therefore, feminists should adopt a concept of privacy that is not in the gender-specific, natural tradition, but is instead oriented towards the notion of freedom (see Allen 1988). The challenge is to find a way for the state to take seriously the domestic abuse that used to be allowed in the name of privacy, while also preventing the state from imposing itself onto the most intimate parts of women’s lives. This means drawing new boundaries for justified state intervention, and thus understanding the public/private distinction in new ways (see §3 and §4 below).

Another feminist perspective on privacy is related to the critique of liberalism in a different way. The approaches to privacy that are linked to freedom and autonomy have been criticized from the perspective of a theory of power (Brown 1995; Cornell 1995). Skepticism towards such approaches arises because they follow from, and are consonant with, other (liberal) dichotomies (such as subject-object or having rights or no rights) that are thought to be essentially exclusionary and discriminatory. It is further argued that such conceptions fail to take into account and criticize the power structures inherent in society, which are therefore also inherent in the structures protecting privacy.

Feminist approaches are far from homogeneous. They range from examples that appear to reject any conceptualization of privacy whatsoever (e.g., Brown 1995; see also the different but equally critical perspective on liberal conceptualizations in Geuss 2001), to those that propose alternative ways of determining privacy, as is the case with Morris, who discussing Pitkin (1981) argues that

privacy should be reconstructed rather than abandoned, for otherwise it is impossible to think critically about central problems in democratic theory—among them the very possibility of citizens’ representing, or translating into a common language, what is most singular, secret, ineffable, internal, that is, private, about themselves. (2000: 323)

She defends a “positive political theory of privacy” which she understands as being part of a democratic theory (2000: 323).

3. Meaning and Value

When considering the concept of the private, it is sometimes difficult to separate the descriptive element of meaning from the normative determination. The determination of the meaning of privacy often contains clear normative elements, such as when Fried (1968) claims that the meaning of privacy consists in protecting trust and intimacy, or when Nissenbaum (2010) defines privacy as the adequate flow of information (which requires protection). In this article, an attempt will be made to separate the descriptive and normative aspects as clearly as possible. In the following section, an overview of the relation between the concept of privacy and other concepts will first be given, followed by a descriptive overview of the meaning of privacy. Finally, we will discuss the various normative determinations that have been given to privacy.

One initial approach to determining the meaning of “privacy” is to examine how it is related to similar words. This is what is called the “semantics” of privacy. First, “private” should be distinguished from “intimate” (Gerstein 1978; Benn & Gaus 1983; Bok 1982; Allen 1988; Inness 1992; Dworkin 1994; see also the threefold differentiation of the meaning of “private” in Weinstein 1971; for the discussion that follows, see Roessler 2001 [2005: 9–12]). What is intimate can also be private, but is not necessarily so: We also speak, for instance, of forms of “public intimacy” in aesthetic contexts (think of John Lennon and Yoko Ono at the Hilton in Amsterdam). “Intimacy” has erotic or sexual connotations, as well as connotations of proximity and vulnerability that also—but not only—have to do with the exposure of one’s body (Inness 1992). Secondly, “private” must be distinguished from “secret”. What is private can be secret, but it is not necessarily so. For instance, the question of where I practice my religious beliefs is private, but not necessarily secret. Another example are medical data: these data are informationally private but not secret; they are known to many people (in the health system) and we would not generally call them “secret”.What is secret can be private, but is also not necessarily so—for example, when one speaks of state secrets (Bok 1982: 10–14; Mokrosinska 2020). Semantic overlaps occur when privacy is dependent on something being completely hidden or concealed, in other words on a secret, as with secret diaries or secret ballots. Of relevance here is Wasserstrom (1984), who interprets privacy above all as the realm of what is secret, hidden or concealed, and thus seeks to bring to light the connotations of deception and deceit.

Another important semantic relation is that of the predicate “private” to the predicate “public”; the latter is often defined in opposition to the former. In everyday language, there are two distinct semantic models underlying the various uses of “private” and “public” (Benn & Gaus 1983: 7–10). The first is an “onion” model, which allows one to distinguish between different layers of privacy. The center of the onion is the realm of personal or bodily intimacy and privacy, including not only one’s body, but also one’s private diary, as opposed to which everything else is regarded as “public”. The second layer of the onion comprises the classic realm of privacy, viz. the family and other intimate relationships. In opposition to the family, the outside world of society and the state constitutes the public realm. The outer layer of the onion is society at large—the realm of economic structures or public civil society—that counts as “private” with respect to intervention by the state. It therefore forms yet another realm of privacy in the face of the public realm of the state and its possible interference (Okin 1991).

In a metaphorical sense, the second model in everyday usage lies perpendicular to the first. For this second semantic model, the term “private” is predicated of actions we carry out, or decisions that we make, no matter where we happen to be. Going to church is thus a private matter. In this second sense, the concept of privacy describes a protected sphere or dimension of action and responsibility, where individuals can act in a way that is independent of decisions and influences from the public realm of state institutions and society at large. This second model also comprises informational privacy, since information about myself which I want to keep private (medical data etc) is not left at home, in a layer of the onion. I carry it with me wherever I go, therefore privacy has to be applicable wherever we are.

Both of the semantic models mentioned above play a role in the following definitions. From early on, the difficulties of developing a systematic and general definition of privacy have been recognized. We start with the most influential definition (at least since the twentieth century): the definition of the concept given by Justices Warren and Brandeis (see §1.2 ). Their conception of (the right to) privacy means rather generally the “right to be left alone”. Warren and Brandeis (1890: 214; for the history of Warren and Brandeis’ interest in privacy see Prosser (1960)) also refer to “the dignity […] of the individual” in discussing the right to privacy, in that respect for privacy is seen as acknowledging the dignity of persons, and their respective personalities. Furthermore, it should be mentioned that the aim of their article was not to explicitly define privacy, but rather to answer the question of “whether our law will recognize and protect the right to privacy” (1890: 196; “our law” refers to the US legal framework). This general definition of the concept of privacy, made in terms of respect for personality, dignity, and “being left alone”, prepared the field not only for detailed legal discussions, but also for efforts to define the term from a philosophical perspective.

the intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the defining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprises and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. (Warren & Brandeis 1890: 196)

As the foundation of their conception of the right to privacy, Warren and Brandeis refer to “the dignity […] of the individual” or, as pointed out by Sax in his discussion of Warren and Brandeis,

the idea of the “inviolate personality” (Warren & Brandeis 1890: 205), or, put differently, “the more general right to the immunity of the person,—the right to one’s personality” (Warren & Brandeis 1890: 207). It is ultimately up to the individual to decide how she wants to be, think, and act. (Sax 2018: 149)

It should be mentioned that the aim of their article was not to explicitly define privacy, but rather to answer the question of “whether our law will recognize and protect the right to privacy” (Warren & Brandeis 1890: 196; “our law” refers to the US legal framework). This general definition of the concept of privacy, made in terms of respect for personality, dignity, and “being left alone”, nevertheless prepared the field not only for detailed legal discussions, but also for efforts to define the term from a philosophical perspective.

There have been various ways in which understanding the differences in determination of the meaning of privacy have been categorized. The two most prominent are reductionism and coherentism , as has been mentioned above. Reductionists are generally critical of the effort to carve out a special category of harms or interests best referred to as unique privacy harms or interests. Coherentists, meanwhile, defend the coherent fundamental value of privacy interests. In contrast, Ferdinand Schoeman introduced a somewhat different terminology. According to Schoeman, a number of authors believe that “there is something common to most of the privacy claims” (1984b: 5). Schoeman refers to this approach as the “coherence thesis”. Positions which

deny both the coherence thesis and the distinctiveness thesis argue that in each category of privacy claims there are diverse values at stake of the sort common to many other social issues and that these values exhaust privacy claims. […] The thrust of this complex position is that we could do quite well if we eliminated all talk of privacy and simply defended our concerns in terms of standard moral and legal categories. (Schoeman 1984b: 5)

These latter theorists are referred to as reductionists . Judith Thomson puts into question the idea that privacy is a distinct concept altogether, insofar as she finds that there is no clear idea of what the right to privacy is. Instead, she suggests that “the right to privacy is itself a cluster of rights” (1975: 306), such as the right to property or the right over the person (see §2.1 ). As has been mentioned in earlier sections, Thomson’s reductionist view was dismissed by Thomas Scanlon. For Scanlon, realms of privacy are always “conventionally defined”, irreducible, and obtain in their own right; that is, they cannot be marked out by means of other rights or claims. “Our zone of privacy,” writes Scanlon,

could be defined in many different ways; what matters most is that some system of limits to observation should be generally understood and observed. (1975: 317–318)

The fact that such limits exist—however varied they may turn out to be—is for Scanlon an indication of the irreducibility of privacy.

Nonetheless, the diversity of possible definitions and characterizations, as well as the many possible fields of application, have continued to pose a challenge. While Scanlon’s reply to Thomson can be read as an attempt to find common ground for different aspects of privacy (Scanlon 1975), Judith DeCew (1997) proposes to systematize the concept of privacy by putting forward a “cluster account” that highlights connections between the different interests covered by the concept, without reducing privacy to these different interests:

I argue that privacy is best understood as a cluster concept covering multiple privacy interests, including those enhancing control over information and our need for independence as well as those enhancing our ability to be self-expressible and to form social relationships. (DeCew 1997: 73)

There are other authors who have questioned the possibility of developing a general, comprehensive definition of privacy. One of the most innovative recent approaches to the meaning (and value) of privacy is that of Helen Nissenbaum. She takes note of “the conceptual quagmire to claim a definition—its definition—of privacy” (2010: 3) and proposes a different approach that renounces to the attempt of providing a single, unifying definition. For Nissenbaum, the right to privacy is best understood as a “right to appropriate flow of personal information” (2010: 127). Generally, the appropriate flow of personal information is governed by context-relative information norms. These are characterized by four parameters, which are the specific contexts, the actors, the information types, and (importantly) the transmission principles (see Nissenbaum 2010: 140–141). A transmission principle is a “constraint on the flow of information from party to party in a context.” (Nissenbaum 2010: 145) What counts as being private information depends on the different norms imposed on the flow of information governing different social contexts, such as the contexts of education, religion, security, or politics (the “contextual integrity” of various contexts; Nissenbaum 2010: 127–231). The adequate transmission principle can, depending on the informational norm, in some contexts (for instance intimate relations) be understood as the control of access of the persons involved. In that sense, Nissenbaum is not strictly arguing against Control-Access approaches, although she argues for their limited use in the general framework of informational privacy. Note that Nissenbaum writes about informational privacy and does not discuss other dimensions of the concept.

Finally, one of the most widely discussed privacy theorists is Daniel Solove (2004, 2008, 2011). Solove famously observed that privacy is a “concept in disarray” (2008: 1) and argues that it is futile to look for a unified definition. Instead, he appeals to Wittgenstein’s idea of “family resemblances”, and proposes understanding privacy as consisting of “many different yet related things” (2008: 9).

It can be concluded from the discussion presented here that in the privacy literature, no clear definition has been made that everyone can agree on. Neither is there a clear scope for privacy: in the US, the conceptual and philosophical discussions regarding the meaning and definition of “privacy” are mostly framed in terms of legal discussions of privacy in the context of US constitutional law. Following this reasoning, a number of theorists defend the view that privacy has broad scope , inclusive of the multiple varieties of privacy issue described by the US Supreme Court, even though there is no simple definition of privacy see Schoemann (1992), Parent (1983), Henkin (1974), Thomson (1975), Gavison (1980) and Bork (1990).

3.3 Normative Approaches

Let us now have a closer look at the normative side of the concept of privacy’s value or function. As will be seen, when determining the supposedly descriptive meaning of privacy, attempts are usually made to describe privacy at the same time in normative terms. Let us emphasize again that it is particularly difficult to separate the descriptive and normative (value-laden) aspects of the concept of privacy.

With the above in mind, we can begin by separating instrumental and intrinsic approaches to the value of privacy. We speak of the instrumental value of privacy when it is valued for the sake of something else (e.g., intimate relations, the body, freedom, autonomy, or dignity; Stigler 1980; Posner 1981). Intrinsic value is when privacy is valued for its own sake, without reference to any other objects, concepts of value, or dimensions in life (Warren & Brandeis 1890; Bloustein 1964; Gerstein 1978; Gavison 1980; Parent 1983).

This idea of an intrinsic value to privacy has, however, been criticized. An example is Fried’s criticism:

It is just because this instrumental analysis makes privacy so vulnerable that we feel impelled to assign to privacy some intrinsic significance. But to translate privacy to the level of an intrinsic value might seem more a way of cutting off analysis than of carrying it forward. (1970: 140)

Fried thus claims that even when we say we value something no matter what, we can still ask the question, “why should this be so?” However, the distinction between intrinsic and extrinsic value is generally a widely debated philosophical topic—not only in relation to privacy. One should therefore not expect it to be settled in the domain of the philosophy of privacy (see entry on intrinsic vs. extrinsic value ).

Access-based approaches have been put forward to answer the question of the meaning and value of privacy. A variety of formulations can be found in the literature (e.g., Thomson 1975; Gavison 1980; Reiman 1995; Allen 2000; Tavani & Moor 2001). Reiman, for instance, defines privacy as “the condition in which others are deprived of access to you” (1995: 30). Similarly, Allen suggests that

privacy refers to a degree of inaccessibility of a person or information about her to others’ five senses and surveillance devices. (2000: 867)

A classic formulation has been offered by Ruth Gavison: “An individual enjoys perfect privacy when he is completely inaccessible to others” (1980: 428). All these suggestions assume that we value privacy and therefore need some restriction of access to it, see especially Reiman (1995).

Sissela Bok defines privacy as

the condition of being protected from unwanted access by others—either physical access, personal information, or attention. Claims to privacy are claims to control access. (1982: 10)

Privacy is here defined as a condition in which one is protected in various respects from undesired intrusions by other people. Such a broadly-based definition still seems likely to cover the whole range of meanings of the concept of privacy. Similar approaches are also found with Benn (1988) and Schoeman (1992).

The access-based approach has been criticized, however. For instance, it is clear that one does not enjoy privacy after falling into a crevasse, even though it does comply with the condition of “inaccessibility” (see Schoeman 1984b: 3). If a state of isolation, seclusion or secrecy is enforced and not freely chosen (in other words, when the person in question has no control over access), then one would not describe it as “private”. Westin (1967: 40) describes the solitary confinement of prisoners as an example of “too much” privacy. Furthermore, this criticism shows that we think of privacy as a distinctly interpersonal phenomenon. If I am stranded on a desert island, it makes no sense to say I enjoy complete privacy because there are no other people present that I could be inaccessible to (Fried 1968).

Other approaches to the meaning and value of privacy take the idea of control as their very starting point, i.e., control over specific areas of privacy. The so-called control-based approach has been adopted in many writings on privacy in academic literature and beyond (Westin 1967; Fried 1968; Scanlon 1975; Parent 1983; Inness 1992; Bok 1982; Boyd 2010). Most control-based approaches justify this interpretation of the value of privacy with the enabling of freedom: individual freedom and autonomy are not possible without the protection of private life (see Allen 1988; Jean Cohen 2002). It should be pointed out, however, that access-based conceptions of privacy could also imply that we value privacy because it enables freedom. This is in fact Reiman’s position (1995), and so this should not be seen as a defining line of separation between the approaches. Finally, Bloustein argues that “the intrusion [of privacy] is demeaning to individuality, is an affront to personal dignity” (1964: 962).

The classic and very influential approach advocated by Westin defines privacy as control over information:

Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others. (1967: 7; see also Gross 1971)

In a similar vein to Westin, Fried defines privacy as “the control we have over information about ourselves” (1968: 482). Fried also asserts that the reason we value privacy is that relationships with other individuals (characterized by love, friendship and trust, for example) essentially depend on the ability to share certain information which we would not share with those not in the relationship. Privacy thus provides the “means for modulating […] degrees of friendship” (Fried 1968: 485), because we share more information with very close friends than we would with others. Hence, what we really care about is the ability to control the information that we share with others. The right to privacy would protect the ability of an individual to shape meaningful relations with others and would be justified by the importance of relationships such as friendship, love and trust in human life (Fried 1968: 484).

This control can not only be understood as being concerned with informational privacy (as with Westin), but also in much broader terms. Iris Young writes: “The Private [is] what the individual chooses to withdraw from public view” (1990: 119–120). Control is here conceived as a retreat from visibility in the public eye, as is echoed by Julie Inness:

Privacy is the state of the agent having control over a realm of intimacy, which contains her decisions about intimate access to herself (including intimate informational access) and her decisions about her own intimate actions. (1992: 56)

Since the values ascribed to privacy can differ, access-based approaches are compatible with this justification of the value of privacy in terms of intimacy and closeness. Most control-based approaches, however, justify the value of privacy by citing the enabling of freedom: individual freedom and autonomy are not possible without the protection of a private life (Jean Cohen 2002). Jean Cohen (2002) gives a theoretical defense of a freedom-based view of the right to privacy. She defends a constructivist approach to privacy rights and intimacy, arguing that privacy rights protect personal autonomy, and that a right to privacy is indispensable for a free and autonomous life. Freedom and autonomy are in the control access-based interpretation inherently linked with privacy: if I want to control the access to myself (or to information about myself), then it is an expression of my freedom to do so. Privacy has, in these approaches, such a high value because it protects my freedom to do what I want to do at home (within the limits of the law), to control what people know about me (also within limits) and to decide freely about myself and my body (Jean Cohen 2002; Roessler 2004: 71ff). One aspect of the freedom or autonomy of persons is their freedom from unwanted observation and scrutiny. Benn (1984) emphasizes how respect for privacy effectively expresses respect for persons and their personhood. He explains that “[a] man’s view of what he does may be radically altered by having to see it, as it were, through another man’s eyes” (1984: 242). The necessity of adopting a different perspective on one’s own behavior can be seen as a restriction of freedom in the sense of the freedom of self-presentation The basic idea of these approaches is that the freedom to play different roles, to present oneself in different ways, presupposes that a person, in a given relationship, can hide (keep private) aspects which she does not want to be seen, to share. The other person would see her in a different way, if he knew this other side of her. Thus, the freedom to present oneself in this way, in this relationship, would be thwarted. The social freedom to play different roles is dependent on being able to present oneself differently to neighbors, students, one’s spouse. It is dependent on the protection of privacy (Allen 1988; Goffman 1959 for further discussion; Goffman is an oft-quoted reference in the privacy literature). We need privacy precisely to afford us spaces free from observation and scrutiny, in order to achieve the liberal ideals of freedom—such as the ideal of personal relations, the ideal of “the politically free man”, and the ideal of “the morally autonomous man” (Benn 1984: 234).

Adam Moore (2010) adopts yet another approach, which nonetheless should be mentioned under the heading of control-based approaches. In the explicit tradition of Aristotelian teleology, Moore steps off from an account of human nature to explain the value of privacy. Human nature, he argues, allows humans to flourish in a particularly human way. In order to flourish, humans need to develop their rational faculties. This allows them, among other things, to live an autonomous life. Among the necessary favorable external conditions which human beings need to flourish, are the rights to and norms of privacy (A. Moore 2003).

The control-based approach has led to the suggestion that different dimensions of control can be distinguished, and that these have a direct correlation with different areas of privacy. From a normative standpoint, these dimensions—not spaces—of privacy serve to protect, facilitate, and effectuate access to what is conceived of as private, and to identify a range of different privacy norms that are supposed to protect and enable personal autonomy.

Other authors suggest that the control-access definition of privacy is best understood as a cluster concept covering interests in (a) control over information about oneself; (b) control over access to oneself, both physically and mentally; and (c) control over one’s ability to make important decisions about family and lifestyle, so as to be self-expressive and to develop varied relationships (DeCew 1997).

Roessler (2001 [2005]) suggests that three dimensions of privacy should be identified, namely decisional privacy, informational privacy, and local privacy, meaning the traditional “private sphere”, mostly the home (the place, as opposed to information or actions). The justification for these different dimensions lies, she argues, in their role in protecting personal autonomy. Without the protection of privacy in these three dimensions, an autonomous and well-lived life in a liberal democracy would not be possible. She explains:

The dimension of decisional privacy serves to secure the scope for a subject to make decisions and take action in all his social relations. The dimension of informational privacy serves to secure a horizon of expectations regarding what others know about him that is necessary for his autonomy. The dimension of local privacy serves to protect the possibilities for spatial withdrawal upon which a subject is dependent for the sake of his autonomy. [The] aim is to show what the value of privacy inheres in and in what way the violation of these dimensions of privacy also entails a violation of the individual autonomy of the subject. (Roessler 2001 [2005: 16])

Protection of personal privacy with respect to these three dimensions is also constitutive of social life (Fried 1968), as well as crucial for democratic decision-making procedures (Stahl 2020; A. Roberts 2022).

The three dimensions are anchored in different traditions of the conception of privacy, and have been discussed for many years. It is in recent years that decisional privacy , or the privacy of actions, has become a specialist term in the literature. Norms of decisional privacy allow for the control of access to one’s decisional sphere. This concerns certain forms of behavior in public, questions of lifestyle, and more fundamental decisions and actions where we may with good reason tell other people that such-and-such a matter is none of their business (see Lanzing 2016; Sax 2018).

A decisive factor in coining the concept of decisional privacy was the ruling of the US Supreme Court in the Roe v. Wade case. As a result of this landmark case, feminist theory has treated sexual freedom of action, the privacy of intimate and sexual acts, and the woman’s right of sexual self-determination as central elements in the theory of privacy (Allen 1988). In the literature on privacy, decisive significance is also given to the privacy of the body (Gatens 1996, 2004). This includes the woman’s newly-won right to conceive of her body as private to the extent that she can decide for herself whether or not to bear a child, and thus enjoy the right of reproductive freedom.

Sexual harassment and sexual orientation are two further central aspects of decisional privacy, both of which concern the link between sexuality, the body, and identity, and are decisive for the societal coding and meaning of privacy. Protection from sexual harassment and the respect for diverse sexual orientations form dimensions of decisional privacy precisely because it is the privacy of the body that is vulnerable to infringement (see Jean Cohen 2002 for a comprehensive discussion). For more on issues linked to power, see §4 .

We can distinguish between different aspects of decisional privacy according to their social context, but the argument underlying the claim to protection of such privacy remains structurally the same. If one understands a person’s self-determination and autonomy to consist in the right to be the (part-) author of her own biography, this must mean that within different social contexts she can demand that her decisions and actions are respected (in the sense that they are “none of your business”) by both social convention and state law. The limits to this form of privacy are regulated by convention and are of course subject to constant renegotiation. Yet this sort of respect for a person’s privacy—applicable also to public contexts—is especially relevant for women. (For relevant examples, see Nagel 1998a & 1998b; Allen 1988; Fraser 1996; Gatens 2004). The spectrum of decisional privacy thus extends from reproductive rights to freedom of conduct in public space.

Norms of informational privacy allow people to control who knows what about them. The knowledge other people have about us shapes the ways in which we can present ourselves, and act around others. Informational privacy is thus essentially linked to individual freedom and autonomy since it enables different forms of self-presentation, as well as enabling different forms of social relationship (see Roessler 2001 [2005: 111–141] for more detail).

Debates about informational privacy hearken back to the interpretation of the US Constitution, beginning with the essay written by Justices Warren and Brandeis. (That essay was written after what they felt was an invasion of privacy by intrusive paparazzi in 1890.) It was in that essay that, for the first time, the right to be left alone was described as a constitutional right to privacy, in the sense that information about a person is worthy of protection even when it involves something that occurs in public (see §1.2 ).

This form of privacy is relevant, primarily in friendships and love relationships, and serves both as protection of relationships and as protection within relationships. In some theories of privacy, this actually constitutes the very heart of privacy in the form of “relational privacy”, which guarantees opportunities for withdrawal that are constitutive for an authentic life (Fried 1968; Rachels 1975). For further details, see entry on privacy and information technology .

The dimension of local privacy refers to the classic, traditional place of privacy, thought of in terms of its most genuine locus: one’s own home. As we have already seen, this form of local privacy is not derived from a “natural” separation of spheres, but rather from the value of being able to be able to withdraw to within one’s own four walls (see §1 and §2 above).

Traditionally, two different aspects of privacy are of relevance here: solitude and “being-for-oneself” on the one hand, and the protection of family communities and relationships on the other. Firstly, people seek the solitude and isolation provided by the protection of their private dwelling, in order to avoid confrontation with others. This aspect of privacy also comes to the fore in the work of Virginia Woolf and George Orwell, for both of whom the privacy of the room—the privacy to write or think—is a precondition for the possibility of self-discovery and an authentic life (Orwell 1949; Woolf 1929).

Local privacy also offers protection for family relationships. The privacy of the household provides the opportunity for people to deal with one another in a different manner, and to take a break from roles in a way that is not possible when dealing with one another in public. This dimension or sphere of privacy, however, is especially prone to generate the potential for conflict. As has been made clear from previous discussions, this has been a particularly important starting point for feminist criticism. A conflict arises here between traditional conceptions of privacy as constitutive of a loving family haven, which has nothing to do with demands for justice or equal rights (Honneth 2004; contrast with Rawls 1997), and the critical feminist approach (see Okin 1989 & 1991; Young 2004).

4. Contemporary Debates

Contemporary debates on privacy are manifold, lively, and sometimes heated. They turn on a multitude of issues that are not only limited to informational privacy, but also include other dimensions of privacy.

Conceptual and normative debates are still pervasive and persistent in the literature, with the role of autonomy and the control-access approach being typical of contemporary discussion. A general discussion of privacy, not focused on one particular aspect but rather presenting the different threats to privacy, and its role and associated tensions in discussions of advancing technology, can be found in different recent comprehensive monographs, for instance in Rule (2007), also in Rotenberg, Scott, and Horwitz (2015), in Citron (2022) as well as in Francis and Francis (2017); Focusing on more particular aspects of the normative debates, Koops et al. (2017) have given a very helpful and informative overview over the different possibilities of defining the meaning and value of privacy. They aim at a typology of eight concepts of privacy:

Our analysis led us to structure types of privacy in a two-dimensional mode, consisting of eight basic types of privacy (bodily, intellectual, spatial, decisional, communicational, associational, proprietary, and behavioral privacy), with an overlay of a ninth type (informational privacy) that overlaps, but does not coincide, with the eight basic types. (2017: 483)

They also very helpfully explain the differences between access-based, control-based and other approaches to the function and value of privacy. Marmor (2015) argues that in the past it has been increasingly difficult to argue for a general interest which privacy is to protect, especially because of the reductionist critique of Thomson (1975); see §2.1 ). Marmor goes on to claim, however,

that there is a general right to privacy grounded in people’s interest in having a reasonable measure of control over the ways in which they can present themselves (and what is theirs) to others. (2015: 3–4)

Marmor presents an interesting version of a control-based theory of privacy in defending the view that we have a basic interest in having (reasonable) control over evaluations of ourselves, which also means that we have an interest in a predictable environment and a predictable flow of information (see 2015: 25). He is thereby in fact connecting to other control-based approaches (see Jean Cohen 1992, also Goffman 1959) as well as theories of privacy as contextual integrity (see Nissenbaum 2010). Mainz and Uhrenfeldt (2021) also support the control-access approach to privacy, claiming that

there is at least a pro tanto reason to favor the control account of the right to privacy over the access account of the right to privacy. (2021: 287)

In a slightly different manner, Gaukroger (2020: 416) claims that privacy not only protects us when we act in morally right ways, but also when we make use of the “freedom to be bad”—which he defends as a general good. Lundgren, however, disputes the control-access approach because of its fundamental difficulties. Following Parent, Lundgren argues that if we adopt a control based account, we lose privacy every time we give someone access to whatever it is we want to keep private which in fact means that we lose more and more of our privacy. Lundgren therefore argues for a “limited access” (Lundgren 2020: 173) conception, criticizing many different forms of control-access accounts (2020: 167 fn 7). (By implicitly following Bloustein’s (1964) plea for the centrality of the concept of human dignity, Floridi (2016) contends that the concept of dignity should be the foundation of interpreting informational privacy, as understood by the GDPR.)

A further development concerns the theory of contextual integrity , as developed by Helen Nissenbaum. Nissenbaum’s framework of Contextual Integrity has won enormous attention as the standard to evaluate flows of personal information, their legitimacy and acceptability but has not remained undisputed. On the one hand, Nissenbaum’s paradigm has led to a great number of articles applying it to different societal fields and technology developments. Shvartzshnaider et al. (2019) present “a method for analyzing privacy policies using the framework of contextual integrity (CI)”. The authors claim that this

method allows for the systematized detection of issues with privacy policy statements that hinder readers’ ability to understand and evaluate company data collection practices. (Shvartzshnaider et al. 2019: 162)

Nissenbaum (2019) herself applies the approach of contextual integrity to a complex data network and argues that especially the contextual integrity approach is able to identify those sources of disruption in novel information practices which should be criticized (2019: 221; see also Nissenbaum 2015). Another interesting example is Shaffer (2021) who applies the Contextual Integrity Framework to new technologies for smart cities. Winter and Davidson (2019) apply the approach of contextual integrity to the problem of data governance in health information, since advances in collecting data

also pose significant data governance challenges for ensuring value for individual, organizational, and societal stakeholders as well as individual privacy and autonomy.

They go on to

investigate how forms of data governance were adapted, as PHI [Personal Health Information] data flowed into new use contexts, to address concerns of contextual integrity, which is violated when personal information collected in one use context moves to another use context with different norms of appropriateness. (2019: 36)

On the other hand, some criticism has been raised which argues that Nissenbaum does not actually provide normative standards to judge which information flows should be seen as ethically justified and which as detrimental (Rule 2019). Rule argues that

notions that norms underlying any given domain of human conduct are unambiguous or uncontested simply do not withstand close examination. Indeed, most social norms, particularly in rapidly changing domains of human conduct like privacy practices, are volatile and highly contested. (2019: 260)

In a similar vein, DeCew (2015) questions the idea that in any given context, the governing norms might be not up to ethical standards and still defendable on the basis of the integrity of the context and the norms governing it, as is the case of the governing norms in the traditional family (DeCew 2015: 215).

Finally, the theory that private data should be seen as private property should be mentioned. This idea originated with Lessig (2002) and has since been discussed by a number of authors. Arguments exist for and against the idea that the agents generating datapoints—the source of the data—have a right to claim those datapoints as private property (Schneider 2021; see also Tufekci 2015; Wu 2015).

Newell e.a. (2015) ushers in a cogent articulation and defense of privacy even when privacy seems to conflict with other important values. Recent technological developments are concerning, with implications for the moral, legal and social foundations and interrelationships between privacy, security and accountability. Katell and Moore (2016: 3) make use of a control-based definition of privacy, stating that a right to privacy is “a right to control access to, and uses of, places, bodies, and personal information”. They also write that

the ability to control access to our bodies, capacities, and powers, and to sensitive personal information, is an essential part of human flourishing or well-being. (Katell & Moore 2016: 5)

Kenneth Himma

argues that security is a more important right that always “trumps” privacy, which on his view is not an absolute or fundamental right, but merely “instrumental” to other rights. (Katell & Moore 2016: 12 and Himma 2016; both in A. Moore 2016)

Himma’s defense is based on his view that security is fundamental to survival—our most valuable duty and obligation. In contrast, responding to this view, Adam Moore defends privacy over security with multiple arguments, perhaps the most powerful of which is demonstrating “the importance of privacy as a bulwark against the tyrannical excesses of an unchecked security state” (Katell & Moore 2016: 13 and Moore 2016b). As the authors in this volume note, there is good reason to conclude that privacy, security and accountability are all morally valuable.

Over the course of the last few years (and especially between 2020 and 2023), the conflict between privacy and health, or privacy and safety, has been the topic of much discussion—particularly from the perspective of the COVID-19 pandemic. In an early attempt to develop suitable guidelines, Morley et al. (2020) have postulated that not only should privacy be protected, but also equality and fairness observed in digital contact-tracing. However, such contact-tracing apps clearly bring about a conflict between privacy and the health of people. Throughout the course of the pandemic, such contact-tracing apps were contested (see Bengio et al. 2020; Fahey & Hino 2020).

Schoeman (1984b) has pointed out that the question of whether or not privacy is culturally relative can be interpreted in different ways. One question is whether privacy is deemed valuable to all peoples, or whether its value is relative and subject to cultural differences (see Westin 1967; Rachels 1975; Allen 1988; A. Moore 2003). Another question is whether there are any aspects of life that are inherently private and not just conventionally so. There is also some literature on the different cultures of privacy in different regions of the world. A growing number of articles are concerned with privacy conceptions in China, not only due to technological developments over the last years (as detailed in Ma 2019 for a relational, Western-Eastern conception of privacy; H. Roberts 2022), but also on earlier periods in Chinese culture, for instance on Confucian and Taoist thinking (Whitman 1985; for attitudes towards healthcare, see Chen et al. 2007). Basu (2012) writes about the Indian perception of privacy, based on India’s cultural values, and offers an explanation for why their concept of privacy seems to extend beyond the often-dominating public-private dichotomy. Capurro (2005) deals with intercultural aspects of privacy, particularly with regard to differences between Japanese and Western conceptions (see also Nakada & Tamura 2005). For a perspective on the general Buddhist theory of privacy, see Hongladarom (2016). The ubuntu perspective on privacy is discussed by Reviglio and Alunge (2020).

Theorists have repeatedly pointed to the connection between the protection of privacy, understood as the protection of individual autonomy, and the protection of democracy (see Goold 2010: 38–48). Hughes, for example, speaks of privacy as a “bulwark against totalitarianism” (2015: 228), while Spiros Simitis describes the right to privacy as “a constitutive element of a democratic society” (1987: 732). Probably the best-known advocate of privacy with a view to democracy is Ruth Gavison. She argues that the protection of privacy both supports and encourages the moral autonomy of citizens, which is an essential precondition of democratic societies (Gavison 1980: 455; see also Hughes 2015: 228; Simitis 1987: 732; Solove 2008: 98–100; Schwartz 1999). There can be no democratic self-determination without the protection of privacy. Hence, government intervention for the security of citizens becomes an ideology that threatens democracy when its goal is no longer the freedom of individuals—that is, when citizens are no longer treated by the state as democratic subjects, but as objects.

Mokrosinska emphasizes privacy as a democratic value, thus strengthening that value when it comes into competition with freedom of expression and other political interests. Privacy can facilitate setting aside deep disagreements in order for political engagement in a democracy to proceed. Thus, Mokrosinska proposes a strategy for mediating between privacy and free speech when they collide (Mokrosinska 2015). Lever, in a monograph on privacy and democracy, develops a comprehensive theory and argues that privacy is in different ways essential for democracies and for the freedom, equality, and solidarity of democratic subjects (Lever 2013). From a different perspective, Stahl (2020) discusses ways in which “surveillance of intentionally public activities” should be criticized. Drawing on the theories of contextual integrity (Nissenbaum) and of the public sphere (Habermas), Stahl argues that

strategic surveillance of the public sphere can undermine the capacity of citizens to freely deliberate in public and therefore conflicts with democratic self-determination. (2020: 1)

The democratic value of privacy also plays a central role in Republicanism , since threats to privacy are always also threats to democracy. Republicans point out the value of privacy by contrasting it to liberal theories, which cannot explain the possible threat to privacy—not just the actual interference—as an encroachment on the freedom of subjects. Andrew Roberts (2015: 320) writes that for republicans, because privacy

is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.

(For a far more elaborate account along similar lines, see A. Roberts 2022; as well as Schwartz 1999)

Group privacy has entered philosophical discussion at a rather late stage, since it was only with the new forms of information and communication technology that groups could be targeted and surveilled efficiently. Research on group privacy addresses the fact that it is not individuals that are targeted by data collection and profiling practices, but rather groups of individuals who share certain relevant features. An important and influential collection of essays is that of Taylor, Floridi, and van der Sloot (2017a). Taylor et al. point out that

profiling and machine learning technologies are directed at the group level and are used to formulate types, not tokens—they work to scale, and enable their users to target the collective as much as the individual. (2017b: 1)

The book discusses divergent perspectives on what a group is, how groups should be addressed with regard to privacy, which elements of the problem can be addressed using current legal and conceptual tools, and which will require new approaches.

Especially interesting is Floridi’s argument that

groups are neither discovered nor invented but designed by the level of abstraction (LoA) at which a specific analysis of a social system is developed. Their design is therefore justified insofar as the purpose, guiding the choice of the LoA, is justified. (Floridi 2017: 83)

Floridi states that the claims that groups have rights and groups have privacy are taken together in the argument that groups can have rights to privacy, and that indeed sometimes it is only the group which has privacy and not its members. (2017: 83; see also Taylor 2017: 13–36; van der Sloot 2017: 197–224). Loi and Christen (2020) agree with Floridi’s claim that groups can have rights to privacy. However, they argue, against Floridi, for the distinction between two different concepts of privacy for groups:

The first (…) deals with confidential information shared with the member of a group and inaccessible to (all or a specific group of) outsiders. The second (…) deals with the inferences that can be made about a group of people defined by a feature, or combination thereof, shared by all individuals in the group. (Loi & Christen 2020: 207)

Loi and Christensen claim that it is the latter, the inferential notion of privacy which is the one explaining group privacy. An absolute right to this privacy, they conclude, is implausible.

Puri (2021) criticizes the conventional liberal conception of privacy that focuses excessively on the identification of the individual as inadequate in safeguarding the individual’s identity and autonomy. Puri therefore develops

a theoretical framework in the form of a triumvirate model of the group right to privacy (GRP), which is based on privacy as a social value… [he also formulates] the concept of mutual or companion privacy, which counterintuitively states that in the age of Big Data Analytics, we have more privacy together rather than individually. (Puri 2021: 477)

Interestingly, Puri (2021) connects the question of group privacy with the one of the social dimensions of privacy. However, although both discourses share the critique of individualist conceptions of privacy and are interested in more than the individual’s protection of privacy, the latter tackles a different problem. The upshot of the debates around the social dimensions of privacy is the claim that privacy is not (only) a right or need for individuals, but protects, and ought to protect relations as well. Not all relations make up a group, and privacy can, in some cases, constitute the very relation it protects, as Roessler and Mokrosinska (2013) argue. James Rachels and Charles Fried both recognized that privacy has a social value: relationships can only be protected when certain norms of privacy apply both within relationships and to relationships (Fried 1968; Rachels 1975). The various norms of informational privacy do not merely regulate the social relationships and roles that we have in life, they actually make them possible. The perspective of the individual seems insufficient to account for many of the concerns raised in debates around privacy-invasive technologies. With ever-greater frequency, privacy-invasive technologies have been argued to endanger not only individual interests, but also to affect society and social life more generally. Therefore, not only the safeguarding of individual freedoms, but also the constitution and regulation of social relationships, are essential to privacy norms (see Roessler & Mokrosinska 2015).

Following Fried (1968) and his theory describing the relational character of the protection of individual privacy, one can argue that, while endorsing norms of informational privacy which should protect individual privacy, this privacy at the same time plays an essential role in social relations. Therefore, the protection of privacy is not always and not necessarily in conflict with societal interests (Roessler & Mokrosinska 2013: 771).

In recent years, several scholars have taken important steps towards developing a social approach to privacy. Arguing that an important aspect of the significance of informational privacy is that it goes beyond the interests of the individuals it protects, these scholars have emphasized the way in which privacy enables social and professional relationships, democratic decision-making processes, and political participation. They have also stressed the necessary role of privacy for cooperation and trust within various associations, such as economic partnerships. Regan, Solove, and Nissenbaum also follow this line of thought. Famously, Regan argues that privacy is not only of value to the individual, but also to society in general. For Regan privacy is a common value, a public value, and also a collective value (1995: 213; see Regan 2015: 50; Hughes 2015). Solove claims that

[by] understanding privacy as shaped by the norms of society, we can better see why privacy should not be understood solely as an individual right… the value of privacy should be understood in terms of its contribution to society. (2008: 98, 171fn)

Solove believes privacy fosters and encourages the moral autonomy of citizens, a central requirement of governance in a democracy. Regan (1995), Solove (2008) and Nissenbaum (2010) took the first steps in analyzing the social dimensions and value of privacy in a democratic society and are now focusing on the role of privacy in political and social practice, law, media and communication, healthcare, and the marketplace.

The social dimensions of privacy also play a crucial role in the social analysis of the family. DeCew and Moore assess the public/private boundary in the family, given that family conventions are among the most crucial for this primary human socialization setting, and also given that structures in the family often are oppressive, as DeCew points out (see MacKinnon 1989).

4.7 Privacy and the Datafication of Daily Life

The issue of the datafication of daily life and its relation to privacy has been discussed from many different angles. One of the first areas of focus was “ambient intelligence” (initially analyzed by Brey 2005), and the “internet of things”, which is still very widely discussed. Wachter, for instance, writes that the

Internet of Things (IoT) requires pervasive collection and linkage of user data to provide personalised experiences based on potentially invasive inferences. Consistent identification of users and devices is necessary for this functionality, which poses risks to user privacy. (2018: 266)

She suggests guidelines for IoT developers which guarantee the protection of privacy in accordance with the GDPR, in cases such as smart homes and data gathered by Siri and Alexa (see also entries on privacy and information technology and ethics of artificial intelligence and robotics .)

Most of us spend a lot of time at work every day. It is the workplace where, in recent years, more and more employers have been observing what their employees are doing. This raises normative problems, such as the consequences of this surveillance for the autonomy of employees, as well as for the relationship between employees and, of course, the question of how much privacy one can claim at the workplace. A good overview of this topic is provided by Bhave, Teo, and Dalal (2020). Chamorro-Premuzic and Buchband (2020) demonstrate the importance of clear communications with employees explaining the reasons for, and existence of, corporate monitoring programs.

From the perspective of the datafied life, the development of commercial health apps—which have become increasingly commonplace in recent years—is particularly important. They became especially relevant given COVID-19 lockdown restrictions, when people became not only more interested in sporting activities, but also in measuring them and finding motivation through interpreting related data. Commercial health app developers have exploited this, and are often not sufficiently clear about the dangers of data collection for the protection of privacy (Sax 2021). Huckvale, Torous, and Larsen (2019) point to these dangers and explain their nature, as does Mulder (2019), who examines app providers and their marketing statements with respect to the extent to which they actually meet the requirements of the GDPR. A different, but equally important point concerns women’s health data and how the recent decision of the US Supreme Court to overturn Roe v. Wade affects the privacy of the health-data of women (see Cox 2022; the Dobbs v. Jackson Women’s Health Organization is also relevant at this point).

It is often reported that people who talk generously about their private lives in social media still claim that they regard informational privacy as a very valuable asset, and that the state has an obligation to guarantee their informational privacy protection. Observations about the online behavior of young people in particular have led theorists to use the term “privacy paradox” in recent years (Hargittai & Marwick 2016: 3737). Martin and Nissenbaum (2016), however, argue against a paradox: they present a survey with

questions that insert ranges of values for the respective parameters contextual integrity asserts as fundamental to informational standards. (Martin & Nissenbaum 2016: 217)

The argument from contextual integrity demonstrates that whether people see any given data flow as violating privacy depends on the values for five parameters: sender, recipient, data subject, transmission principle, and type of information. Martin and Nissenbaum argue that if one describes a situation in which information or data flows without specifying values for all the parameters, one is thereby offering an ambiguous description. Their study on “sensitive” information demonstrates that although people consistently rank certain types of information as more or less sensitive, their reactions vary quite significantly when the recipient is specified, e.g., health information to an advertiser versus to a physician. Thus, when people post information on social media, we can draw no conclusions about whether this means they care or do not care about privacy because they may consider it appropriate to share the information in question with friends, though not with advertisers etc. (2016: 217).

Hargittai and Marwick, on the other hand, interpret the privacy paradox differently and argue that while young adults are aware of the dangers of sharing information online, they feel that they have to “acknowledge that individuals exist in social contexts where others can and do violate their privacy” (2016: 3737). Hoffman, Lutz, and Ranzini (2016), in contrast, explain the endless sharing of personal data, while simultaneously defending the value of informational privacy, as a kind of “privacy cynicism”. In contrast, Draper and Turow analyze this attitude as “resignation” and have recently defended a theoretical framework which conceptualizes “digital resignation as a rational response to consumer surveillance” (Draper & Turow 2019: 1824).

One aspect of mass data collection concerns the possibility of self-observation: one’s own behavior can be measured comprehensively, and every quantifiable detail can be noted. The first such “lifeloggers” were Gordon Bell and Jim Gemmell. They had a grand vision of recording life as a whole, similar to the protagonists in Dave Eggers’ dystopian novel The Circle (Bell & Gemmell 2009 [2010]; see Eggers 2013 and his 2021; Lanzing 2016). As a rule, self-trackers use self-observation techniques more selectively. They are mostly concerned with data that is necessary for their health and well-being, but not with all-round self-observation.

Allen points to one of the consequences of living with a life log: she argues that life logs make memory superfluous and calls this activity a “freezing of the past” (Allen 2008: 48). This makes it impossible to change oneself. She further argues that this complete abandonment of privacy—also characteristic of social media—leads to people, especially young adults, becoming less autonomous. Allen therefore pleads for a duty to protect our own privacy (Allen 2011) and makes the case that protecting one’s own privacy should be required:

We need to restrain choice—if not by law, then somehow. Respect for privacy rights and the ascription of privacy duties must both be a part of a society’s formative project for shaping citizens… some privacy should not be optional, waivable, or alienable. (Allen 2011: 172)

Alan Westin (1967) surveyed several studies of animals, demonstrating that a desire for privacy is not restricted to humans. One of the more recent contemporary debates on privacy concerns the question of whether animals should have (a right to) privacy. Pepper (2020) defends such a right, since nonhuman animals also have an

interest in shaping different kinds of relationships with one another by giving us control over how we present ourselves to others… which grounds a right against us. (2020: 628; see also Paci et al. 2022)

Research on the relationship between privacy and knowledge—that is, on epistemological issues—is a relative newcomer to the arena of privacy debates. Fallis (2013) offers one of the first discussions of the issue, and criticizes the position that holds that “protecting privacy typically leads to less knowledge being acquired”, as well as the position that “lack of knowledge is definitive of having privacy”. He goes on to argue that

contra the defenders of the knowledge account of privacy , that someone knowing something is not necessary for someone else losing privacy about that thing. (Fallis 2013: 153)

For Kappel, it

seems obvious that informational privacy has an epistemological component; privacy or lack of privacy concerns certain kinds of epistemic relations between a cogniser and sensitive pieces of information. (2013: 179)

In his paper, Kappel aims at

[shedding] some light on the epistemological component of informational privacy [since] the nature of this epistemological component of privacy is only sparsely discussed. (2013: 179; see also the entry on privacy and information technology )

Since the publication of the essay by Warren and Brandeis, there have been enormous technological advances that have radically transformed not only the possibilities for keeping people under surveillance, but also our concepts of privacy, as well as freedom and autonomy. Opportunities for monitoring people are now available in private households, public spaces, and when surfing the Internet. The spaces of freedom in the public sphere could not exist under permanent (potential) surveillance and social control, and certainly not if we can no longer be sure about what data being collected, and into whose hands it might fall (see Julie Cohen 2008 for more on the relationship between privacy and visibility in the networked information age). If we can no longer be certain that we are not being surveilled and controlled, then we cannot even openly and self-determinedly debate potentially critical positions with others (Stahl 2016: 33–39; Rosen 2000: 207). Control and standardization (or normalization) are two sides of the same coin. In the face of increasingly pervasive data collection and digital surveillance, some authors have sought to move away from understandings of privacy that build on the notions of control over information or secrecy. Brunton and Nissenbaum, for instance, have observed a variety of practices that sought privacy through “obfuscation”, i.e., the “deliberate addition of ambiguous, confusing, or misleading information to interfere with surveillance and data collection” (2015: 1). The German sociologist Carsten Ochs suggests that these obfuscation practices correspond to a new type of informational privacy, which emerges in response to the specific challenges of a digitalized society and which he characterizes as “concealment” (“ Verschleierung ”) (2022: 496).

Brunton and Nissenbaum argue that obfuscation is a

tool particularly suited to the “weak”—the situationally disadvantaged, those at the wrong end of asymmetrical power relationships. (2015: 9)

It is useful to address the information asymmetry between those who collect data and can use it to monitor, predict and influence behaviors, and those whose data is collected and who may not even be aware of this data collection and usage (Brunton & Nissenbaum 2015: 48–51). These observations point to the relation between privacy and power, which has received significant attention in the recent literature. The erosion of privacy through data collection and processing increases the power of big technology companies and governments to influence the people whose data is collected (Véliz 2020). Privacy is also a matter of power, insofar as access to privacy is unequally distributed and marginalized groups are more vulnerable than others to privacy invasions. The legal theorist Skinner-Thompson (2021) has documented how minority communities, such as religious, ethnic or sexual minorities, are disproportionally exposed to surveillance due to a lack of legal protections of privacy.

Here, we would also like to draw attention to the computer intelligence consultant Edward Snowden, an employee at the NSA, who in 2013 published highly classified data from the NSA where he was working. These data revealed global surveillance programs by different states and the disclosure prompted many heated cultural debates in different countries, as well as international academic debates. From the beginning, one of the questions was whether Snowden had actually violated the privacy of individuals or whether the publication of state secrets should be judged differently than the publication of individual secrets; see Mokrosinska on the difference between secrecy and privacy (Mokrosinska 2020). On the general privacy issues involved in this affair, see Greenwald 2014; Rubel 2015; MacNish 2018; Lucas 2014. For the general societal debates, the Snowden revelations were significant in drawing new attention to structural forms of surveillance and possible violations of privacy.

In analyses of the new “surveillance state”, many authors discuss the different social contexts in which violations of informational privacy may in various ways coincide with restrictions of freedom. Zuboff (2019) analyses and criticizes the surveillance capitalism and the “instrumentarian power” of this surveillance state, where privacy is only seen as data and therefore as a tradable good. At the same time, she criticizes the process of transforming personal life into behavioral data and commercial products. For Zuboff, personal data is not a commodity that should be traded arbitrarily, since it is essentially constituted by human experience (see also Roessler 2015; Wang 2022). Susskind’s discussion of “future power” as the power to “scrutiny” and to “perception-control” (2018) is equally critical and pessimistic about the protection of informational privacy in the surveillance state. Similar pessimism is expressed by Harcourt (2015), who conceptualizes the decline and loss of privacy as the loss of the individual. At the same time, he calls for forms of civil disobedience in the surveillance state (2015). For the political abuse of data power, see Cadwalladr and Graham-Harrison (2018) on the so-called Cambridge-Analytica Scandal.

Specific aspects of the surveillance state are highlighted by authors using the concept of data colonialism, which brings out the persistent exploitative power inherent in datafication (Wang 2022). The term “colonialism” is connected to cruel practices of domination and exploitation in human history. As Couldry and Mejias (2019) emphasize, “data colonialism” is not used to describe the physical violence and force that was often seen in historical colonialism, but at the same time, the frame of colonialism is not used “as a mere metaphor” either. Instead, the term is used “to refer a new form of colonialism distinctive of the twenty-first century” (2019: 337), which involves a widespread dispossession and exploitation of our human lives. By using the term “data colonialism” instead of “data capitalism”, or some similar formulation, the crueler side of “today’s exposure of daily life to capitalist forces of datafication” is highlighted (2019: 337; see also Thatcher, O’Sullivan, & Mahmoudi 2016: 994).

More specifically, racist structures and colonial heritage play a constitutive role in the conceptualization of privacy. Fraser (1992) analyzed the simultaneous constitution of privacy and the public sphere, in a cogent interpretation of the hearings for the confirmation of Clarence Hill to the US Supreme Court. Race, sex and class were the determinants of the construction of privacy:

The way the struggle unfolded, moreover, depended at every point on who had the power to successfully and authoritatively define where the line between the public and the private would be drawn. It depended as well on who had the power to police and defend that boundary. (Fraser 1992: 595)

Nagel (1998a and b), meanwhile, is critical of this theory of interdependence of the concepts privacy and the public sphere, but the idea that personal privacy is deeply connected with societal and political power relations plays an important role in the literature from the last decade. There has been intensified research on the racist and colonial constructions of privacy. Couldry and Mejias (2019) generally criticize the relation between big data and the contemporary subject, while Arora (2019) argues more specifically that that many assumptions about internet use in developing countries are wrong, since they presuppose a Western conception of this use and the idea of privacy in talking about and dealing with the Global South. In her work, she analyses the real-life patterns of internet use in different countries (among them India and China) and seeks to answer questions why, for instance, citizens of states with strict surveillance policies seem to care so little about their digital privacy (Arora 2019: 717).

Translating human life into commodified data relations is not new, but rather a fact that has been critically examined by many scholars over the years. For example, Shoshana Zuboff (2019) has commented on the drive toward continually increasing data extraction as the essence of surveillance capitalism. From a different angle, Simone Browne interprets the “condition of blackness” as the key with the help of which state surveillance can precisely record and regulate the lives of subjects. Her book shows exactly how state surveillance emerged and learned from practices of colonial exploitation and slavery. Surveillance, Browne asserts,

is both a discursive and material practice that reifies boundaries, borders, and bodies around racial lines, so much so that the surveillance of blackness has long been, and continues to be, a social and political norm. (2015: 1)

Again, from the societal perspective of class and race, Bridges (2017) demonstrates in which ways the protection of personal privacy is deeply connected to class and race, and how it can be used to exacerbate the structures of social inequality. She points out that the poor are subject to invasions of privacy that can be perceived as gross demonstrations of governmental power without limits.

Over the last years, discussions have begun regarding the question of what lies “beyond privacy”. Since most big technology companies have been forced to conform to privacy laws, and even advertise their compliance, a significant question is whether a sort of “privacy-washing” is occurring, where the very focus on privacy undermines the interests which originally initiated those privacy concerns. Projects like “The Privacy Sandbox”, where Google, together with the advertisement-technology industry, developed seemingly privacy-friendly alternatives to third-party cookies, may be seen as cases of “privacy-washing”. Behind these supposedly good intentions lie fundamental questions about the future of privacy, as well as the future of the internet. For example, do we even want an internet that runs on personalized advertisements and massive data collection? Brunton and Nissenbaum are concerned that

information collection takes place in asymmetrical power relationships: we rarely have choice as to whether or not we are monitored, what is done with any information that is gathered, or what is done to us on the basis of conclusions drawn from that information. (2015: 49)

Sharon demonstrates that

in an interesting twist, the tech giants came to be portrayed as greater champions of privacy than some democratic governments. (2021: 45)

Thus, if we look back to the beginnings of informational privacy in the late nineteenth century, we can see that the apparent changes (the corporations themselves seem to care about privacy) express the very continuities of the threat to privacy. The academic and societal debates about these threats, however, make it clear that privacy has by no means lost its value and importance.

Allen, Anita L., 1988, Uneasy Access: Privacy for Women in a Free Society , (New Feminist Perspectives Series), Totowa, NJ: Rowman & Littlefield.
–––, 1989, “Equality and Private Choice: Reproductive Laws for the 1990s , edited by Nadine Taub and Sherrill Cohen”, Nova Law Review , 13(2): 625–648. [ Allen 1989 available online ]
–––, 2000, “Privacy-as-Data Control: Conceptual, Practical, and Moral Limits of the Paradigm Commentary”, Connecticut Law Review , 32(3): 861–876.
–––, 2008, “Dredging up the Past: Lifelogging, Memory, and Surveillance”, University of Chicago Law Review , 75(1): 47–74 (article 4).
–––, 2011, Unpopular Privacy: What Must We Hide? , (Studies in Feminist Philosophy), Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780195141375.001.0001
Arendt, Hannah, 1958 [1998], The Human Condition , (Charles R. Walgreen Foundation Lectures), Chicago: University of Chicago Press. Second edition, 1998.
Ariès, Philippe, 1960 [1962], L’enfant et la vie familiale sous l’Ancien Régime , (Civilisations d’hier et d’aujourd’hui), Paris: Plon. Translated as Centuries of Childhood: A Social History of Family Life , Robert Baldick (trans.), New York: Vintage Books, 1962.
De l’Empire romain à l’an mil , Paul Veyne (ed.), translated as From pagan Rome to Byzantium , 1992
De l’Europe féodale à la Renaissance , Georges Duby (ed.), translated as Revelations of the Medieval World , 1993
De la Renaissance aux lumières , Roger Chartier (ed.), translated as Passions of the Renaissance , 1993
De la Révolution à la Grande Guerre , Michelle Perrot (ed.), translated as From the fires of the Revolution to the Great War , 1994
De la Première Guerre mondiale à nos jours , Antoine Prost and Gérard Vincent (eds), translated as Riddles of Identity in Modern Times , 1998
Arora, Payal, 2019, “General Data Protection Regulation—A Global Standard? Privacy Futures, Digital Activism, and Surveillance Cultures in the Global South”, Surveillance & Society , 17(5): 717–725. doi:10.24908/ss.v17i5.13307
Basu, Subhajit, 2012, “Privacy Protection: A Tale of Two Cultures”, Masaryk University Journal of Law and Technology , 6(1): 1–34.
Bell, C. Gordon and Jim Gemmell, 2009 [2010], Total Recall: How the E-Memory Revolution Will Change Everything , New York: Dutton. Reprinted as Your Life, Uploaded: The Digital Way to Better Memory, Health, and Productivity , New York: Plume, 2010.
Bengio, Yoshua, Richard Janda, Yun William Yu, Daphne Ippolito, Max Jarvie, Dan Pilat, Brooke Struck, Sekoul Krastev, and Abhinav Sharma, 2020, “The Need for Privacy with Public Digital Contact Tracing during the COVID-19 Pandemic”, The Lancet Digital Health , 2(7): e342–e344. doi:10.1016/S2589-7500(20)30133-3
Benn, Stanley I., 1984, “Privacy, Freedom, and Respect for Persons”, in Schoeman 1984a: 223–244 (ch. 8). doi:10.1017/CBO9780511625138.009
–––, 1988, A Theory of Freedom , Cambridge/New York: Cambridge University Press. doi:10.1017/CBO9780511609114
Benn, S. I. and Gerald F. Gaus (eds.), 1983, Public and Private in Social Life , London/New York: Croom Helm/St. Martin’s Press.
Bhave, Devasheesh P., Laurel H. Teo, and Reeshad S. Dalal, 2020, “Privacy at Work: A Review and a Research Agenda for a Contested Terrain”, Journal of Management , 46(1): 127–164. doi:10.1177/0149206319878254
Bloustein, Edward J., 1964, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”, New York University Law Review , 39(6): 962–1007.
Bok, Sissela, 1982, Secrets: On the Ethics of Concealment and Revelation , New York: Pantheon Books.
Bork, Robert H., 1990, The Tempting of America: The Political Seduction of the Law , New York: Free Press.
Boyd, Danah, 2010, “Social Network Sites as Networked Publics: Affordances, Dynamics, and Implications”, in Zizi Papacharissi (ed.), Networked Self: Identity, Community, and Culture on Social Network Sites , New York: Routledge, pp. 39–58.
Brey, Philip, 2005, “Freedom and Privacy in Ambient Intelligence”, Ethics and Information Technology , 7(3): 157–166. doi:10.1007/s10676-006-0005-3
Bridges, Khiara M., 2017, The Poverty of Privacy Rights , Stanford, CA: Stanford University Press.
Brown, Wendy, 1995, States of Injury: Power and Freedom in Late Modernity , Princeton, NJ: Princeton University Press.
Brunton, Finn and Helen Nissenbaum, 2015, Obfuscation: A User’s Guide for Privacy and Protest , Cambridge, MA: MIT Press.
Cadwalladr, Carole and Emma Graham-Harrison, 2018, “Revealed: 50 Million Facebook Profiles Harvested for Cambridge Analytica in Major Data Breach”, The Guardian , 17 March 2018, News Section. [ Cadwalladr and Graham-Harrison available online ]
Capurro, Rafael, 2005, “Privacy. An Intercultural Perspective”, Ethics and Information Technology , 7(1): 37–47. doi:10.1007/s10676-005-4407-4
Chamorro-Premuzic, Tomas and Richard Buchband, 2020, “If You’re Tracking Employee Behavior, Be Transparent About It”, Harvard Business Review , 23 December 2020.
Chen, Wei-Ti, Helene Starks, Cheng-Shi Shiu, Karen Fredriksen-Goldsen, Jane Simoni, Fujie Zhang, Cynthia Pearson, and Hongxin Zhao, 2007, “Chinese HIV-Positive Patients and Their Healthcare Providers: Contrasting Confucian Versus Western Notions of Secrecy and Support”, Advances in Nursing Science , 30(4): 329–342. doi:10.1097/01.ANS.0000300182.48854.65
Citron, Danielle Keats, 2022, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age , New York: W.W. Norton & Company.
Cohen, Jean L., 1992, “Redescribing Privacy: Identity, Difference, and the Abortion Controversy”, Columbia Journal of Gender and Law , 3(1). doi:10.7916/CJGL.V3I1.2354
–––, 2002, Regulating Intimacy: A New Legal Paradigm , Princeton, NJ: Princeton Univ. Press.
Cohen, Julie E., 2008, “Privacy, Visibility, Transparency, and Exposure”, University of Chicago Law Review , 75(1): 181–201 (article 4).
–––, 2019, “Turning Privacy Inside Out”, Theoretical Inquiries in Law , 20(1): 1–31. doi:10.1515/til-2019-0002
Cornell, Drucilla, 1995, The Imaginary Domain: Abortion, Pornography and Sexual Harassment , New York: Routledge.
Couldry, Nick and Ulises A. Mejias, 2019, “Data Colonialism: Rethinking Big Data’s Relation to the Contemporary Subject”, Television & New Media , 20(4): 336–349. doi:10.1177/1527476418796632
Cox, David, 2022, “How Overturning Roe v Wade Has Eroded Privacy of Personal Data”, BMJ , 378: o2075. doi:10.1136/bmj.o2075
Craglia, M. (ed.), de Nigris, S., Gómez-González, E., Gómez, E., Martens, B., Iglesias, M., Vespe, M., Schade, S., Micheli, M., Kotsev, A., Mitton, I., Vesnic-Alujevic, L., Pignatelli, F., Hradec, J., Nativi, S., Sanchez, I., Hamon, R., Junklewitz, H., 2020, “Artificial Intelligence and Digital Transformation: early lessons from the COVID-19 crisis”, EUR 30306 EN , Luxembourg: Publications Office of the European Union. doi:10.2760/166278.
Dalla Corte, Lorenzo, 2020, “Safeguarding data protection in an open data world: On the idea of balancing open data and data protection in the development of the smart city environment and data protection in the development of the smart city environment”, PhD Thesis, Tilburg: Tilburg University.
DeCew, Judith Wagner, 1989, “Constitutional Privacy, Judicial Interpretation, and Bowers v. Hardwick”, Social Theory and Practice , 15(3): 285–303. doi:10.5840/soctheorpract198915314
–––, 1997, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology , Ithaca, NY: Cornell University Press.
–––, 2007, “The Philosophical Foundations of Privacy”, in Encyclopedia of Privacy , William G. Staples (ed.), Westport, CT: Greenwood Press, pp. 404–414.
–––, 2012, “Privacy”, in The Routledge Companion to Philosophy of Law , Andrei Marmor, New York: Routledge, pp. 584–598.
–––, 2015, “The Feminist Critique of Privacy: Past Arguments and New Social Understandings”, in Roessler and Mokrosinska 2015: 85–103. doi:10.1017/CBO9781107280557.006
–––, 2016, “Privacy and Its Importance with Advancing Technology”, Ohio Northern University Law Review , 42(2): 471–492 (article 4).
–––, 2018, “The Conceptual Coherence of Privacy As Developed in Law”, in Core Concepts and Contemporary Issues in Privacy , Ann E. Cudd and Mark C. Navin (eds.), (AMINTAPHIL: The Philosophical Foundations of Law and Justice 8), Cham: Springer International Publishing, pp. 17–30. doi:10.1007/978-3-319-74639-5_2
Diggelmann, Oliver and Maria Nicole Cleis, 2014, “How the Right to Privacy Became a Human Right”, Human Rights Law Review , 14(3): 441–458. doi:10.1093/hrlr/ngu014
Draper, Nora A and Joseph Turow, 2019, “The Corporate Cultivation of Digital Resignation”, New Media & Society , 21(8): 1824–1839. doi:10.1177/1461444819833331
Dworkin, Ronald, 1994, Life’s Dominion: An Argument about Abortion, Euthanasia and Individual Freedom , New York: Vintage Books.
Eggers, Dave, 2013, The Circle , London: Penguin Books.
–––, 2021, The Every: or At last a sense of order, or The final days of free will, or Limitless choice is killing the world , New York: Vintage Books.
Elshtain, Jean Bethke, 1981, Public Man, Private Woman: Women in Social and Political Thought , Princeton, NJ: Princeton University Press.
–––, 1995, Democracy on Trial , New York: Basic Books.
Etzioni, Amitai, 1999, The Limits of Privacy , New York: Basic Books.
–––, 2004, The Common Good , Cambridge: Polity.
Fahey, Robert A. and Airo Hino, 2020, “COVID-19, Digital Privacy, and the Social Limits on Data-Focused Public Health Responses”, International Journal of Information Management , 55: article 102181. doi:10.1016/j.ijinfomgt.2020.102181
Fallis, Don, 2013, “Privacy and Lack of Knowledge”, Episteme , 10(2): 153–166. doi:10.1017/epi.2013.13
Feldman, David, 1997, “The developing scope of Article 8 of the European Convention on Human Rights”, European Human Rights Law Review , 3: 265–274.
Floridi, Luciano, 2016, “On Human Dignity as a Foundation for the Right to Privacy”, Philosophy & Technology , 29(4): 307–312. doi:10.1007/s13347-016-0220-8
–––, 2017, “Group Privacy: A Defence and an Interpretation”, in Taylor, Floridi, and van der Sloot 2017a: 83–100. doi:10.1007/978-3-319-46608-8_5
Francis, Leslie P. and John G. Francis, 2017, Privacy: What Everyone Needs to Know , New York: Oxford University Press.
Fraser, Nancy, 1992, “Sex, Lies, and the Public Sphere: Some Reflections on the Confirmation of Clarence Thomas”, Critical Inquiry , 18(3): 595–612. doi:10.1086/448646
–––, 1996, “Rethinking the Public Sphere”, in Habermas and the Public Sphere , Craig Calhoun, Cambridge, MA: MIT Press.
Fried, Charles, 1968, “Privacy”, The Yale Law Journal , 77(3): 475–493.
–––, 1970, An Anatomy of Values: Problems of Personal and Social Choice , Cambridge, MA: Harvard University Press.
Gajda, Amy, 2022, Seek and Hide: The Tangled History of the Right to Privacy , New York: Viking.
Gatens, Moira, 1996, Imaginary Bodies: Ethics, Power, and Corporeality , London/New York: Routledge. doi:10.4324/9780203418659
–––, 2004, “Privacy and the Body: The Publicity of Affect”, in Rössler 2004: 113–132.
Gaukroger, Cressida, 2020, “Privacy and the Importance of ‘Getting Away With It’”, Journal of Moral Philosophy , 17(4): 416–439. doi:10.1163/17455243-20202987
Gavison, Ruth, 1980, “Privacy and the Limits of Law”, Yale Law Journal , 89(3): 421–471.
Gerstein, Robert S., 1978, “Intimacy and Privacy”, Ethics , 89(1): 76–81. doi:10.1086/292105
Geuss, Raymond, 2001, Public Goods, Private Goods , (Princeton Monographs in Philosophy), Princeton, NJ: Princeton University Press.
Glancy, Dorothy J., 1979, “The Invention of the Right to Privacy”, Arizona Law Review , 21(1): 1–40.
Goffman, Erving, 1959, The Presentation of Self in Everyday Life , revised edition, New York: Anchor Books.
Goldenfein, J., Green, B., & Viljoen, S., 2020, “Privacy Versus Health Is a False Trade-Off”, Jacobin , April 17.
González Fuster G, 2014, The Emergence of Personal Data Protection as a Fundamental Right of the EU, Heidelberg: Springer.
Goold, Benjamin J., 2010, “How Much Surveillance is Too Much? Some Thoughts on Surveillance, Democracy, and the Political Value of Privacy”, in Overvåking i en rettstat , D. W. Schartum (ed.), Bergen: Fagbokforlaget, pp. 38–48. [ Goold 2010 preprint available online ]
Gordon, Harold R., 1960, “Right of Property in Name, Likeness, Personality and History”, Northwestern University Law Review , 55(5): 553–613.
Greenwald, Glenn, 2014, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State , New York: Metropolitan Books/Henry Holt and London: Hamish Hamilton.
Gross, Hyman, 1971, “Privacy and Autonomy”, in Privacy: Nomos XIII , Roland Pennock and John W. Chapman (eds.), New York: Atherton Press, pp. 169–81.
Harcourt, Bernard E., 2015, Exposed: Desire and Disobedience in the Digital Age , Cambridge, MA: Harvard University Press.
Hargittai, Eszter and Alice Marwick, 2016, “‘What Can I Really Do?’ Explaining the Privacy Paradox with Online Apathy”, International Journal of Communication , 10: 3737–3757 (article 21). [ Hargittai and Marwick 2016 available online ]
Henkin, Louis, 1974, “Privacy and Autonomy”, Columbia Law Review , 74(8): 1410–1433.
Himma, Kenneth Einar, 2016, “Why Security Trumps Privacy”, in A. Moore 2016a: 145–170 (ch. 8).
Hobbes, Thomas, 1651, Leviathan , London: Crooke. Reprinted as Hobbes: Leviathan: Revised Student Edition, Richard Tuck (ed.), Cambridge: Cambridge University Press, 1996.
Hoffmann, Christian Pieter, Christoph Lutz, and Giulia Ranzini, 2016, “Privacy Cynicism: A New Approach to the Privacy Paradox”, Cyberpsychology: Journal of Psychosocial Research on Cyberspace , 10(4): article 7. doi:10.5817/CP2016-4-7
Hongladarom, Soraj, 2016, A Buddhist Theory of Privacy , (SpringerBriefs in Philosophy), Singapore: Springer Singapore. doi:10.1007/978-981-10-0317-2
Honneth, Axel, 2004, “Between Justice and Affection: The Family as a Field of Moral Disputes”, in Rössler 2004: 142–162.
Hoofnagle, Chris Jay, Bart van der Sloot, and Frederik Zuiderveen Borgesius, 2019, “The European Union General Data Protection Regulation: What It Is and What It Means”, Information & Communications Technology Law , 28(1): 65–98. doi:10.1080/13600834.2019.1573501
Huckvale, Kit, John Torous, and Mark E. Larsen, 2019, “Assessment of the Data Sharing and Privacy Practices of Smartphone Apps for Depression and Smoking Cessation”, JAMA Network Open , 2(4): e192542. doi:10.1001/jamanetworkopen.2019.2542
Hughes, Kirsty, 2015, “The Social Value of Privacy, the Value of Privacy to Society and Human Rights Discourse”, in Roessler and Mokrosinska 2015: 225–243. doi:10.1017/CBO9781107280557.013
Igo, Sarah E., 2018, The Known Citizen: A History of Privacy in Modern America , Cambridge, MA: Harvard University Press.
Inness, Julie C., 1992, Privacy, Intimacy, and Isolation , New York: Oxford University Press.
Johnson, Jeffrey L., 1994, “Constitutional Privacy”, Law and Philosophy , 13(2): 161–193.
Kappel, Klemens, 2013, “Epistemological Dimensions of Informational Privacy”, Episteme , 10(2): 179–192. doi:10.1017/epi.2013.15
Katell, Michael and Adam D. Moore, 2016, “Introduction: The Value of Privacy, Security and Accountability”, in A. Moore 2016a: 1–18.
Keulen, Sjoerd and Ronald Kroeze, 2018, “Privacy from a Historical Perspective”, in van der Sloot and de Groot 2018: 21–56. doi:10.1515/9789048540136-002
Koops, Bert-Jaap, Bryce Clayton Newell, Tjerk Timan, Ivan Skorvanek, Tomislav Chokrevski, and Masa Galic, 2017, “A Typology of Privacy”, University of Pennsylvania Journal of International Law , 38(2): 483–576.
Kupfer, Joseph, 1987, “Privacy, Autonomy and Self-Concept”, American Philosophical Quarterly , 24(1): 81–89.
Landes, Joan B. (ed.), 1998, Feminism, the Public and the Private , (Oxford Readings in Feminism), New York: Oxford University Press.
Lanzing, Marjolein, 2016, “The Transparent Self”, Ethics and Information Technology , 18(1): 9–16. doi:10.1007/s10676-016-9396-y
Lessig, Lawrence, 2002, “Privacy as Property”, Social Research , 69(1): 247–269.
Lever, Annabelle, 2012, On Privacy , London: Routledge. doi:10.4324/9780203156667
–––, 2013, A Democratic Conception of Privacy , London: AuthorHouse
Lindroos-Hovinheimo, Susanna, 2021, Private Selves: Legal Personhood in European Privacy Protection , (Cambridge Studies in European Law and Policy), Cambridge/New York: Cambridge University Press. doi:10.1017/9781108781381
Locke, John, 1690, Two Treatises of Government , London: Awnsham Churchill. New edition, Peter Laslett (ed.), Cambridge: Cambridge University Press, 1988.
Loi, Michele and Markus Christen, 2020, “Two Concepts of Group Privacy”, Philosophy & Technology , 33(2): 207–224. doi:10.1007/s13347-019-00351-0
Lucas, George R., 2014, “NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden”, Ethics & International Affairs , 28(1): 29–38. doi:10.1017/S0892679413000488
Lundgren, Björn, 2020, “A Dilemma for Privacy as Control”, The Journal of Ethics , 24(2): 165–175. doi:10.1007/s10892-019-09316-z
Ma, Yuanye, 2019, “ Relational Privacy  : Where the East and the West Could Meet”, Proceedings of the Association for Information Science and Technology , 56(1): 196–205. doi:10.1002/pra2.65
MacKinnon, Catharine A., 1987, Feminism Unmodified: Discourses on Life and Law , Cambridge, MA: Harvard University Press.
–––, 1989, Toward a Feminist Theory of the State , Cambridge, MA: Harvard University Press.
–––, 1991, “Reflections on Sex Equality under Law”, Yale Law Journal , 100(5): 1281–1328.
Macnish, Kevin, 2018, “Government Surveillance and Why Defining Privacy Matters in a Post-Snowden World”, Journal of Applied Philosophy , 35(2): 417–432. doi:10.1111/japp.12219
Mainz, Jakob Thrane and Rasmus Uhrenfeldt, 2021, “Too Much Info: Data Surveillance and Reasons to Favor the Control Account of the Right to Privacy”, Res Publica , 27(2): 287–302. doi:10.1007/s11158-020-09473-1
Marmor, Andrei, 2015, “What Is the Right to Privacy?”, Philosophy & Public Affairs , 43(1): 3–26. doi:10.1111/papa.12040
Martin, Kirsten and Helen Nissenbaum, 2016, “Measuring Privacy: An Empirical Test Using Context to Expose Confounding Variables”, Columbia Science and Technology Law Review , 18(1): 176–218.
McKeon, Michael, 2007, The Secret History of Domesticity: Public, Private, and the Division of Knowledge , Baltimore, MD: Johns Hopkins University Press.
Mead, Margaret, 1928, Coming of Age in Samoa: A Psychological Study of Primitive Youth for Western Civilisation , New York: Blue Ribbon Books.
Menges, Leonhard, 2020, “Did the NSA and GCHQ Diminish Our Privacy? What the Control Account Should Say”, Moral Philosophy and Politics , 7(1): 29–48. doi:10.1515/mopp-2019-0063
Michael, James R., 1994, Privacy and Human Rights: An International and Comparative Study, with Special Reference to Developments in Information Technology , Brookfield, VT: Dartmouth Publishing Company.
Mill, John Stuart, 1859, On Liberty , London: John W. Parker and Son.
Mokrosinska, Dorota, 2015, “How much privacy for public officials?”, in Roessler and Mokrosinska 2015: 181–201. doi:10.1017/CBO9781107280557.013
–––, 2020, “Why States Have No Right to Privacy, but May Be Entitled to Secrecy: A Non-Consequentialist Defense of State Secrecy”, Critical Review of International Social and Political Philosophy , 23(4): 415–444. doi:10.1080/13698230.2018.1482097
Moore, Adam D., 1998, “Intangible Property: Privacy, Power, and Information Control”, American Philosophical Quarterly 35(4): 365–378.
–––, 2000, “Employee Monitoring and Computer Technology: Evaluative Surveillance v. Privacy”, Business Ethics Quarterly , 10(3): 697–709. doi:10.2307/3857899
–––, 2003, “Privacy: Its Meaning and Value” American Philosophical Quarterly , 40(3): 215–227.
–––, 2010, Privacy Rights: Moral and Legal Foundations , University Park, PA: Pennsylvania State University Press.
–––, (ed.), 2016a, Privacy, Security and Accountability: Ethics, Law and Policy , London: Rowman & Littlefield International Ltd.
–––, 2016b, “Why Privacy and Accountability Trump Security”, in Moore 2016a: 171–182 (ch. 9).
Moore, Barrington Jr, 1984, Privacy: Studies in Social and Cultural History , Armonk, NY: M.E. Sharpe.
Morley, Jessica, Josh Cowls, Mariarosaria Taddeo, and Luciano Floridi, 2020, “Ethical Guidelines for COVID-19 Tracing Apps”, Nature , 582(7810): 29–31. doi:10.1038/d41586-020-01578-0
Morris, Debra, 2000, “Privacy, Privation, Perversity: Toward New Representations of the Personal”, Signs: Journal of Women in Culture and Society , 25(2): 323–351. doi:10.1086/495441
Mulder, Trix, 2019, “Health Apps, Their Privacy Policies and the GDPR”, European Journal of Law and Technology , 10(1). [ Mulder 2019 available online ]
Nagel, Thomas, 1998a, “The Shredding of Public Privacy: Reflections on Recent Events in Washington”, Times Literary Supplement , 14 August 1998.
–––, 1998b, “Concealment and Exposure”, Philosophy & Public Affairs , 27(1): 3–30. doi:10.1111/j.1088-4963.1998.tb00057.x
Nakada, Makoto and Takanori Tamura, 2005, “Japanese Conceptions of Privacy: An Intercultural Perspective”, Ethics and Information Technology , 7(1): 27–36. doi:10.1007/s10676-005-0453-1
Newell, Bryce Clayton, Cheryl A. Metoyer, and Adam D. Moore, 2015, “Privacy in the family”, in Roessler and Mokrosinska 2015: 104–121. doi:10.1017/CBO9781107280557.013
Nissenbaum, Helen, 2010, Privacy in Context: Technology, Policy, and the Integrity of Social Life , Stanford: Stanford Law Books.
–––, 2015, “Respect for Context as a Benchmark for Privacy Online: What It Is and Isn’t”, in Roessler and Mokrosinska: 278–302. doi:10.1017/CBO9781107280557.016
–––, 2019, “Contextual Integrity Up and Down the Data Food Chain”, Theoretical Inquiries in Law , 20(1): 221–256. doi:10.1515/til-2019-0008
O’Neil, Cathy, 2016, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy , London: Penguin Books.
Ochs, Carsten, 2022, Soziologie der Privatheit. Informationelle Teilhabebeschränkung vom Reputation Management bis zum Recht auf Unberechenbarkeit , Weilerswist: Velbrück Wissenschaft. doi:10.5771/9783748914877
Okin, Susan Moller, 1989, Justice, Gender, and the Family , New York: Basic Books.
–––, 1991, “Gender, the Public and the Private”, in Political Theory Today , David Held (ed.), Stanford, CA: Stanford University Press.
Olsen, Francis E., 1991, “A Finger to the Devil. Abortion. Privacy and Equality”, Dissent Magazine , Summer 1991: 377–382.
Ortner, Sherry B., 1974 [1998], “Is Female to Male as Nature is to Culture?”, in Woman, Culture and Society , Michelle Zimbalist Rosaldo and Louise Lamphere (eds), Stanford, CA: Stanford University Press, 67–87. Reprinted in Feminism: The Public and the Private , Joan b. Landes (ed.), Oxford: Oxford University Press, pp. 21–44.
Orwell, George, 1949, Nineteen Eighty-Four (1984) , London: Secker & Warburg.
Paci, Patrizia, Clara Mancini, and Bashar Nuseibeh, 2022, “The Case for Animal Privacy in the Design of Technologically Supported Environments”, Frontiers in Veterinary Science , 8: 784794. doi:10.3389/fvets.2021.784794
Parent, W.A., 1983, “Privacy, Morality, and the Law”, Philosophy & Public Affairs , 12(4): 269–288.
Pateman, Carole, 1989, The Disorder of Women: Democracy, Feminism, and Political Theory , Stanford, CA: Stanford University Press.
Pepper, Angie, 2020, “Glass Panels and Peepholes: Nonhuman Animals and the Right to Privacy”, Pacific Philosophical Quarterly , 101(4): 628–650. doi:10.1111/papq.12329
Phillips, Anne, 1991, Engendering Democracy , University Park, PA: Pennsylvania State University Press.
Pitkin, Hannah F., 1981, “Justice: On Relating Public and Private”, Political Theory , 9(3): 327–352.
Posner, Richard A., 1978, “John A. Sibley Lecture: The Right of Privacy”, Georgia Law Review , 12(3): 393–422. [ Posner 1978 available online ]
–––, 1981, “The Economics of Privacy”, American Economic Review , 71(2): 405–409.
Pozen, David E., 2015, “Privacy-Privacy Tradeoffs”, University of Chicago Law Review , 83(1): 221–247 (article 10).
Prosser, William L., 1960, “Privacy”, California Law Review , 48(3): 383–423.
Puri, Anuj, 2021, “A Theory of Group Privacy”, Cornell Journal of Law and Public Policy , 30(3): 477–538.
Rachels, James, 1975, “Why Privacy is Important”, Philosophy & Public Affairs , 4(4): 323–333.
Rawls, John, 1997, “The Idea of Public Reason Revisited”, The University of Chicago Law Review , 64(3): 765–807. doi:10.2307/1600311
–––, 2001, Justice as Fairness: A Restatement , Erin Kelly (ed.), Cambridge, MA: Belknap Press of Harvard University Press.
Regan, Priscilla M., 1995, Legislating Privacy: Technology, Social Values, and Public Policy , Chapel Hill, NC: University of North Carolina Press.
–––, 2015, “Privacy and the Common Good: Revisited”, in Roessler and Mokrosinska 2015: 50–70. doi:10.1017/CBO9781107280557.004
Reiman, Jeffrey H., 1976, “Privacy, Intimacy, and Personhood”, Philosophy & Public Affairs , 6(1): 26–44.
–––, 1995, “Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future”, Santa Clara High Technology Law Journal , 11(1): article 27.
Reviglio, Urbano and Rogers Alunge, 2020, “‘I Am Datafied Because We Are Datafied’: An Ubuntu Perspective on (Relational) Privacy”, Philosophy & Technology , 33(4): 595–612. doi:10.1007/s13347-020-00407-6
Richards, Neil, 2015, Intellectual Privacy: Rethinking Civil Liberties in the Digital Age , New York: Oxford University Press.
Richardson, Megan, 2017, The Right to Privacy: Origins and Influence of a Nineteenth-Century Idea , (Cambridge Intellectual Property and Information Law), Cambridge/ New York: Cambridge University Press. doi:10.1017/9781108303972
Roberts, Andrew, 2015, “A Republican Account of the Value of Privacy”, European Journal of Political Theory , 14(3): 320–344. doi:10.1177/1474885114533262
–––, 2022, Privacy in the Republic , London: Routledge India. doi:10.4324/9781003079804
Roberts, Huw, 2022, “Informational Privacy with Chinese Characteristics”, in The 2021 Yearbook of the Digital Ethics Lab , Jakob Mökander and Marta Ziosi (eds.), (Digital Ethics Lab Yearbook), Cham: Springer International Publishing, 9–23. doi:10.1007/978-3-031-09846-8_2
Roessler [Rössler], Beate, 2001 [2005], Der Wert des Privaten , (Suhrkamp Taschenbuch Wissenschaft 1530), Frankfurt am Main: Suhrkamp. Translated as The Value of Privacy , R. D. V. Glasgow (trans.), Cambridge: Polity, 2005.
––– (ed.), 2004, Privacies: Philosophical Evaluations , (Cultural Memory in the Present), Stanford, CA: Stanford University Press.
–––, 2008, “New Ways of Thinking about Privacy”, in The Oxford Handbook of Political Theory , John S. Dryzek, Bonnie Honig, and Anne Phillips (eds.), Oxford: Oxford University Press, pp. 694–712. doi:10.1093/oxfordhb/9780199548439.003.0038
–––, 2015, “Should personal data be a tradable good? On the moral limits of markets in privacy”, in Roessler and Mokrosinska 2015: 141–161. doi:10.1017/CBO9781107280557.013
–––, 2017a, “Privacy as a Human Right”, Felix Koch (trans.), Proceedings of the Aristotelian Society , 117(2): 187–206. doi:10.1093/arisoc/aox008
–––, 2017b [2021], Autonomie: ein Versuch über das gelungene Leben , Berlin: Suhrkamp. Translated as Autonomy: An Essay on the Life Well Lived , James C. Wagner (trans.), Cambridge, UK: Polity, 2021.
Roessler, Beate and Dorota Mokrosinska, 2013, “Privacy and Social Interaction”, Philosophy & Social Criticism , 39(8): 771–791. doi:10.1177/0191453713494968
––– (eds.), 2015, Social Dimensions of Privacy: Interdisciplinary Perspectives , New York: Cambridge University Press. doi:10.1017/CBO9781107280557
Rosen, Jeffrey, 2000, The Unwanted Gaze: The Destruction of Privacy in America , New York: Random House.
Rotenberg, Marc, Jeramie Scott, and Julia Horwitz (eds), 2015, Privacy in the Modern Age: The Search for Solutions , New York: The New Press.
Rubel, Alan, 2015, “Privacy, Transparency, and Accountability in the Nsa?S Bulk Metadata Program”, in A. Moore 2016a: 183–202 (ch.10).
Rule, James B., 2007, Privacy in Peril: How We Are Sacrificing a Fundamental Right in Exchange for Security and Convenience , Oxford/New York: Oxford University Press. doi:10.1093/acprof:oso/9780195307832.001.0001
–––, 2019, “Contextual Integrity and Its Discontents: A Critique of Helen Nissenbaum’s Normative Arguments”, Policy & Internet , 11(3): 260–279. doi:10.1002/poi3.215
Sandel, Michael J., 1982, Liberalism and the Limits of Justice , Cambridge/New York: Cambridge University Press. Second edition, 1998. doi:10.1017/CBO9780511810152
Sax, Marijn, 2018, “Privacy from an Ethical Perspective”, in van der Sloot and de Groot 2018: 143–172. doi:10.1515/9789048540136-006
–––, 2021, Between Empowerment and Manipulation: The Ethics and Regulation of for-Profit Health Apps , (Information Law Series 47), Alphen aan den Rijn, The Netherlands: Kluwer Law International B. V.
Scanlon, Thomas, 1975, “Thomson on Privacy”, Philosophy and Public Affairs , 4(4): 315–322.
Schneider, Henrique, 2021, “The Institutions of Privacy: Data Protection Versus Property Rights to Data”, SATS , 22(1): 111–129. doi:10.1515/sats-2020-0004
Schoeman, Ferdinand David (ed.), 1984a, Philosophical Dimensions of Privacy: An Anthology , Cambridge/New York: Cambridge University Press. doi:10.1017/CBO9780511625138
–––, 1984b, “Privacy: Philosophical Dimensions of Privacy”, in Schoeman 1984a: 1–33 (ch. 1). doi:10.1017/CBO9780511625138.002
–––, 1992, Privacy and Social Freedom , (Cambridge Studies in Philosophy and Public Policy), Cambridge/New York: Cambridge University Press. doi:10.1017/CBO9780511527401
Schwartz, Paul M., 1999, “Privacy and Democracy in Cyberspace”, Vanderbilt Law Review , 52(6): 1607–1702.
Shaffer, Gwen, 2021, “Applying a Contextual Integrity Framework to Privacy Policies for Smart Technologies”, Journal of Information Policy , 11: 222–265. doi:10.5325/jinfopoli.11.2021.0222
Sharon, Tamar, 2021, “Blind-Sided by Privacy? Digital Contact Tracing, the Apple/Google API and Big Tech’s Newfound Role as Global Health Policy Makers”, Ethics and Information Technology , 23(S1): 45–57. doi:10.1007/s10676-020-09547-x
Shvartzshnaider, Yan, Noah Apthorpe, Nick Feamster, and Helen Nissenbaum, 2019, “Going against the (Appropriate) Flow: A Contextual Integrity Approach to Privacy Policy Analysis”, Proceedings of the AAAI Conference on Human Computation and Crowdsourcing , 7: 162–170. doi:10.1609/hcomp.v7i1.5266
Simitis, Spiros, 1987, “Reviewing Privacy In an Information Society”, University of Pennsylvania Law Review , 135(3): 707–746.
Simko, Lucy, Jack Chang, Maggie Jiang, Ryan Calo, Franziska Roesner, and Tadayoshi Kohno, 2022, “COVID-19 Contact Tracing and Privacy: A Longitudinal Study of Public Opinion”, Digital Threats: Research and Practice , 3(3): article 25. doi:10.1145/3480464
Skinner-Thompson, Scott, 2021, Privacy at the Margins , Cambridge/New York: Cambridge University Press. doi:10.1017/9781316850350
Solove, Daniel J., 2002, “Conceptualizing Privacy”, California Law Review , 90(4): 1087–1156.
–––, 2004, The Digital Person: Technology and Privacy in the Information Age , New York: New York University Press.
–––, 2008, Understanding Privacy , Cambridge, MA: Harvard University Press.
–––, 2011, Nothing to Hide: The False Tradeoff between Privacy and Security , New Haven, CT: Yale University Press.
Stahl, Titus, 2016, “Indiscriminate Mass Surveillance and the Public Sphere”, Ethics and Information Technology , 18(1): 33–39. doi:10.1007/s10676-016-9392-2
–––, 2020, “Privacy in Public: A Democratic Defense”, Moral Philosophy and Politics , 7(1): 73–96. doi:10.1515/mopp-2019-0031
Stanley, Jay and Jennifer Stisa Granick, 2020, “The Limits of Location Tracking in an Epidemic”. ACLU White Paper, 8 April 2020, ACLU. [ Stanley and Granick 2020 available online ]
Stigler, George J., 1980, “An Introduction to Privacy in Economics and Politics”, The Journal of Legal Studies , 9(4): 623–644.
Susskind, Jamie, 2018, Future Politics: Living Together in a World Transformed by Tech , Oxford: Oxford University Press.
Tavani, Herman T. and James H. Moor, 2001, “Privacy Protection, Control of Information, and Privacy-Enhancing Technologies”, ACM SIGCAS Computers and Society , 31(1): 6–11. doi:10.1145/572277.572278
Taylor, Linnet, 2017, “Safety in Numbers? Group Privacy and Big Data Analytics in the Developing World”, in Taylor, Floridi, and van der Sloot 2017a: 13–36. doi:10.1007/978-3-319-46608-8_2
Taylor, Linnet, Luciano Floridi, and Bart van der Sloot (eds.), 2017a, Group Privacy: New Challenges of Data Technologies , Cham: Springer International Publishing. doi:10.1007/978-3-319-46608-8
–––, 2017b, “Introduction: A New Perspective on Privacy”, in their 2017a: 1–12. doi:10.1007/978-3-319-46608-8_1
Thatcher, Jim, David O’Sullivan, and Dillon Mahmoudi, 2016, “Data Colonialism through Accumulation by Dispossession: New Metaphors for Daily Data”, Environment and Planning D: Society and Space , 34(6): 990–1006. doi:10.1177/0263775816633195
Thomson, Judith Jarvis, 1975, “The Right to Privacy”, Philosophy & Public Affairs , 4(4): 295–314.
Tran, Cong Duc and Tin Trung Nguyen, 2021, “Health vs. Privacy? The Risk-Risk Tradeoff in Using COVID-19 Contact-Tracing Apps”, Technology in Society , 67: article 101755. doi:10.1016/j.techsoc.2021.101755
Tribe, Laurence H., 1990, Abortion: The Clash of Absolutes , New York: Norton.
–––, 2022, “Deconstructing Dobbs | Laurence H. Tribe”, New York Review of Books , 22 September 2022.
Tufekci, Zeynep, 2015, “What ‘Free’ Really Costs”, New York Times , New York edition, 4 June 2015, page A25. Appeared in online edition as “Mark Zuckerberg, Let Me Pay for Facebook”.
Turkington, Richard C. and Anita L. Allen, 1999, Privacy Law: Cases and Materials , (American Casebook Series), St. Paul, MN: West Group.
Veliz, Carissa, 2021, Privacy is Power: Why and How You Should Take Back Control of Your Data , London: Bantam Press.
van de Poel, Ibo, 2020, “Core Values and Value Conflicts in Cybersecurity: Beyond Privacy Versus Security”, in The Ethics of Cybersecurity , Markus Christen, Bert Gordijn, and Michele Loi (eds.), (The International Library of Ethics, Law and Technology 21), Cham: Springer International Publishing, pp. 45–71. doi:10.1007/978-3-030-29053-5_3
van der Sloot, Bart, 2017, “Do Groups Have a Right to Protect Their Group Interest in Privacy and Should They? Peeling the Onion of Rights and Interests Protected Under Article 8 ECHR”, in Taylor, Floridi, and van der Sloot 2017a: 197–224. doi:10.1007/978-3-319-46608-8_11
van der Sloot, Bart and Aviva De Groot (eds.), 2018, The Handbook of Privacy Studies: An Interdisciplinary Introduction , Amsterdam: Amsterdam University Press. doi:10.1515/9789048540136
Vincent, David, 2016, Privacy: A Short History , Cambridge/Malden, MA: Polity Press.
Volio, Fernando, 1981, “Legal Personality, Privacy and the Family” in The International Bill of Rights: The Covenant on Civil and Political Rights , Louis Henkin, New York: Columbia University Press, pp. 185–208.
Wachter, Sandra, 2018, “The GDPR and the Internet of Things: A Three-Step Transparency Model”, Law, Innovation and Technology , 10(2): 266–294. doi:10.1080/17579961.2018.1527479
Wacks, Raymond, 2010, Privacy: A Very Short Introduction , (Very Short Introductions), Oxford/New York: Oxford University Press. Second edition 2015.
Wang, Hao, 2022, Algorithmic Colonization. Automating Love and Trust in the Age of Big Data , PhD Dissertation, University of Amsterdam.
Warren, Samuel D. and Louis D. Brandeis, 1890, “The Right to Privacy”, Harvard Law Review , 4(5): 193–220.
Wasserstrom, Richard A., 1984, “Privacy: Some Arguments and Assumptions”, in Schoeman 1984a: 317–332 (ch. 14).
Weil, Gordon L., 1963, “The Evolution of the European Convention on Human Rights”, American Journal of International Law , 57(4): 804–827.
Weinstein, W.L., 1971, “The Private and the Free: A Conceptual Inquiry”, in Privacy: Nomos XIII , Roland Pennock and John W. Chapman (eds.), New York: Atherton Press, pp. 624–692.
Weintraub, Jeff Alan and Krishan Kumar (eds.), 1997, Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy , (Morality and Society), Chicago, IL: University of Chicago Press.
Westin, Alan F., 1967, Privacy and Freedom , New York: Atheneum.
Whitman, Christina B., 1985, “Privacy in Confucian and Taoist Thought”, in Individualism and Holism: Studies in Confucian and Taoist Values , Donald J. Munro (ed.), Ann Arbor, MI: University of Michigan, Center for Chinese Studies, pp. 85–100. [ Whitman 1985 available online ]
Winter, Jenifer Sunrise and Elizabeth Davidson, 2019, “Big Data Governance of Personal Health Information and Challenges to Contextual Integrity”, The Information Society , 35(1): 36–51. doi:10.1080/01972243.2018.1542648
Woolf, Virginia, 1929, A Room of One’s Own , Richmond: Hogarth Press.
Wu, Tim, 2015, “Facebook Should Pay All of Us”, The New Yorker web site , 14 August 2015. [ Wu 2015 available online ]
Young, Iris Marion, 1990, Justice and the Politics of Difference , Princeton, NJ: Princeton University Press.
–––, 2004, “A Room of One’s Own: Old Age, Extended Care and Privacy”, in Rössler 2004: 168–186.
Zuboff, Shoshana, 2019, The Age of Surveillance Capitalism: The Fight for the Future at the New Frontier of Power , New York: PublicAffairs.
International Covenant on Civil and Political Rights , 16.12.1966, United Nations, Treaty Series, vol. 999, p. 171, Art. 12. [ International Covenant available online ]
Universal Declaration of Human Rights , General Assembly resolution 217A, 10.12.1948, Art. 12. [ Universal Declaration available online ]
[CETS No. 108] Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data , ETS 108, Strasbourg, 28/01/1981. [ CETS No. 108 available online ]
[ECHR] European Convention on Human Rights , signed 1950, effective 1953, In particular, Article 8: Right to respect for private and family life. [ ECHR available online ]
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995: on the protection of individuals with regard to the processing of personal data and on the free movement of such data . [ Directive 95/46/EC available online ]
[GDPR] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1. [ GDPR available online ]
“Charter of Fundamental Rights of the European Union”, Official Journal of the European Union , 2010, 53(C83): 389–403. [ EU Fundamental Rights available online ]
BVerfG, Order of the First Senate of 15 December 1983 - 1 BvR 209/83 -, paras. 1–214. [ BVerfG available online (German with English abridged version) ]
Bowers v. Hardwick, 478 U.S. 186 (1986). [ Bowers v. Hardwick available online ]
Dobbs v. Jackson Women’s Health Organization, No. 19–1392, 597 U.S. (2022). [ Dobbs v. Jackson Women’s Health Organization opinion available online ]
Griswold v. Connecticut, 381 U.S. 479 (1965). [ Griswold v. Connecticut available online ]
Lawrence v. Texas, 539 U.S. 558 (2003). [ Lawrence v. Texas available online ]
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). [ Planned Parenthood v. Casey available online ]
Roe v. Wade, 410 U.S. 113 (1973). [ Roe v. Wade available online ]
US House of Representative, “ H.R.8152 American Data Privacy and Protection Act”, proposed 2022. [ H.R.8152 available online ]
[CCPA] California Consumer Privacy Act of 2018 , [ CCPA available online ]

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

Electronic Privacy Information Center (EPIC)

Accessibility

Support SEP

Mirror sites.

View this site from another server:

Info about mirror sites

Library of Congress Catalog Data: ISSN 1095-5054

Photo by Raghu Rai/Magnum

Privacy is power

Don’t just give away your privacy to the likes of google and facebook – protect it, or you disempower us all.

by Carissa Véliz + BIO

Imagine having a master key for your life. A key or password that gives access to the front door to your home, your bedroom, your diary, your computer, your phone, your car, your safe deposit, your health records. Would you go around making copies of that key and giving them out to strangers? Probably not the wisest idea – it would be only a matter of time before someone abused it, right? So why are you willing to give up your personal data to pretty much anyone who asks for it?

Privacy is the key that unlocks the aspects of yourself that are most intimate and personal, that make you most you, and most vulnerable. Your naked body. Your sexual history and fantasies. Your past, present and possible future diseases. Your fears, your losses, your failures. The worst thing you have ever done, said, and thought. Your inadequacies, your mistakes, your traumas. The moment in which you have felt most ashamed. That family relation you wish you didn’t have. Your most drunken night.

When you give that key, your privacy, to someone who loves you, it will allow you to enjoy closeness, and they will use it to benefit you. Part of what it means to be close to someone is sharing what makes you vulnerable, giving them the power to hurt you, and trusting that person never to take advantage of the privileged position granted by intimacy. People who love you might use your date of birth to organise a surprise birthday party for you; they’ll make a note of your tastes to find you the perfect gift; they’ll take into account your darkest fears to keep you safe from the things that scare you. Not everyone will use access to your personal life in your interest, however. Fraudsters might use your date of birth to impersonate you while they commit a crime; companies might use your tastes to lure you into a bad deal; enemies might use your darkest fears to threaten and extort you. People who don’t have your best interest at heart will exploit your data to further their own agenda. Privacy matters because the lack of it gives others power over you.

You might think you have nothing to hide, nothing to fear. You are wrong – unless you are an exhibitionist with masochistic desires of suffering identity theft, discrimination, joblessness, public humiliation and totalitarianism, among other misfortunes. You have plenty to hide, plenty to fear, and the fact that you don’t go around publishing your passwords or giving copies of your home keys to strangers attests to that.

You might think your privacy is safe because you are a nobody – nothing special, interesting or important to see here. Don’t shortchange yourself. If you weren’t that important, businesses and governments wouldn’t be going to so much trouble to spy on you.

You have your attention, your presence of mind – everyone is fighting for it. They want to know more about you so they can know how best to distract you, even if that means luring you away from quality time with your loved ones or basic human needs such as sleep. You have money, even if it is not a lot – companies want you to spend your money on them. Hackers are eager to get hold of sensitive information or images so they can blackmail you. Insurance companies want your money too, as long as you are not too much of a risk, and they need your data to assess that. You can probably work; businesses want to know everything about whom they are hiring – including whether you might be someone who will want to fight for your rights. You have a body – public and private institutions would love to know more about it, perhaps experiment with it, and learn more about other bodies like yours. You have an identity – criminals can use it to commit crimes in your name and let you pay for the bill. You have personal connections. You are a node in a network. You are someone’s offspring, someone’s neighbour, someone’s teacher or lawyer or barber. Through you, they can get to other people. That’s why apps ask you for access to your contacts. You have a voice – all sorts of agents would like to use you as their mouthpiece on social media and beyond. You have a vote – foreign and national forces want you to vote for the candidate that will defend their interests.

As you can see, you are a very important person. You are a source of power.

By now, most people are aware that their data is worth money. But your data is not valuable only because it can be sold. Facebook does not technically sell your data, for instance. Nor does Google. They sell the power to influence you. They sell the power to show you ads, and the power to predict your behaviour. Google and Facebook are not really in the business of data – they are in the business of power. Even more than monetary gain, personal data bestows power on those who collect and analyse it, and that is what makes it so coveted.

T here are two aspects to power. The first aspect is what the German philosopher Rainer Forst in 2014 defined as ‘the capacity of A to motivate B to think or do something that B would otherwise not have thought or done’. The means through which the powerful enact their influence are varied. They include motivational speeches, recommendations, ideological descriptions of the world, seduction and credible threats. Forst argues that brute force or violence is not an exercise of power, for subjected people don’t ‘do’ anything; rather, something is done to them. But clearly brute force is an instance of power. It is counterintuitive to think of someone as powerless who is subjecting us through violence. Think of an army dominating a population, or a thug strangling you. In Economy and Society (1978), the German political economist Max Weber describes this second aspect of power as the ability for people and institutions to ‘carry out [their] own will despite resistance’.

In short, then, powerful people and institutions make us act and think in ways in which we would not act and think were it not for their influence. If they fail to influence us into acting and thinking in the way that they want us to, powerful people and institutions can exercise force upon us – they can do unto us what we will not do ourselves.

There are different types of power: economic, political and so on. But power can be thought of as being like energy: it can take many different forms, and these can change. A wealthy company can often use its money to influence politics through lobbying, for instance, or to shape public opinion through paying for ads.

Power over others’ privacy is the quintessential kind of power in the digital age

That tech giants such as Facebook and Google are powerful is hardly news. But exploring the relationship between privacy and power can help us to better understand how institutions amass, wield and transform power in the digital age, which in turn can give us tools and ideas to resist the kind of domination that survives on violations of the right to privacy. However, to grasp how institutions accumulate and exercise power in the digital age, first we have to look at the relationship between power, knowledge and privacy.

There is a tight connection between knowledge and power. At the very least, knowledge is an instrument of power. The French philosopher Michel Foucault goes even further, and argues that knowledge in itself is a form of power . There is power in knowing. By protecting our privacy, we prevent others from being empowered with knowledge about us that can be used against our interests.

The more that someone knows about us, the more they can anticipate our every move, as well as influence us. One of the most important contributions of Foucault to our understanding of power is the insight that power does not only act upon human beings – it constructs human subjects (even so, we can still resist power and construct ourselves). Power generates certain mentalities, it transforms sensitivities, it brings about ways of being in the world. In that vein, the British political theorist Steven Lukes argues in his book Power (1974) that power can bring about a system that produces wants in people that work against their own interests. People’s desires can themselves be a result of power, and the more invisible the means of power, the more powerful they are. Examples of power shaping preferences today include when tech uses research about how dopamine works to make you addicted to an app, or when you are shown political ads based on personal information that makes a business think you are a particular kind of person (a ‘persuadable’, as the data-research company Cambridge Analytica put it, or someone who might be nudged into not voting, for instance).

The power that comes about as a result of knowing personal details about someone is a very particular kind of power. Like economic power and political power, privacy power is a distinct type of power, but it also allows those who hold it the possibility of transforming it into economic, political and other kinds of power. Power over others’ privacy is the quintessential kind of power in the digital age.

T wo years after it was funded and despite its popularity, Google still hadn’t developed a sustainable business model. In that sense, it was just another unprofitable internet startup. Then, in 2000, Google launched AdWords, thereby starting the data economy. Now called Google Ads, it exploited the data produced by Google’s interactions with its users to sell ads. In less than four years, the company achieved a 3,590 per cent increase in revenue.

That same year, the Federal Trade Commission had recommended to US Congress that online privacy be regulated. However, after the attacks of 11 September 2001 on the Twin Towers in New York, concern about security took precedence over privacy, and plans for regulation were dropped. The digital economy was able to take off and reach the magnitude it enjoys today because governments had an interest in having access to people’s data in order to control them. From the outset, digital surveillance has been sustained through a joint effort between private and public institutions.

The mass collection and analysis of personal data has empowered governments and prying companies. Governments now know more about their citizens than ever before. The Stasi (the security service of the German Democratic Republic), for instance, managed to have files only on about a third of the population, even if it aspired to have complete information on all citizens. Intelligence agencies today hold much more information on all of the population. To take just one important example, a significant proportion of people volunteer private information in social networks. As the US filmmaker Laura Poitras put it in an interview with The Washington Post in 2014: ‘Facebook is a gift to intelligence agencies.’ Among other possibilities, that kind of information gives governments the ability to anticipate protests, and even pre-emptively arrest people who plan to take part. Having the power to know about organised resistance before it happens, and being able to squash it in time, is a tyrant’s dream.

Tech companies’ power is constituted, on the one hand, by having exclusive control of data and, on the other, by the ability to anticipate our every move, which in turn gives them opportunities to influence our behaviour, and sell that influence to others. Companies that earn most of their revenues through advertising have used our data as a moat – a competitive advantage that has made it impossible for alternative businesses to challenge tech titans. Google’s search engine, for example, is as good as it is partly because its algorithm has much more data to learn from than any of its competitors. In addition to keeping the company safe from competitors and allowing it to train its algorithm better, our data also allows tech companies to predict and influence our behaviour. With the amount of data it has access to, Google can know what keeps you up at night, what you desire the most, what you are planning to do next. It then whispers this information to other busybodies who want to target you for ads.

Tech wants you to think that the innovations it brings into the market are inevitable

Companies might also share your data with ‘data brokers’ who will create a file on you based on everything they know about you (or, rather, everything they think they know), and then sell it to pretty much whoever is willing to buy it – insurers, governments, prospective employers, even fraudsters.

Data vultures are incredibly savvy at using both the aspects of power discussed above: they make us give up our data, more or less voluntarily, and they also snatch it away from us, even when we try to resist. Loyalty cards are an example of power making us do certain things that we would otherwise not do. When you are offered a discount for loyalty at your local supermarket, what you are being offered is for that company to conduct surveillance on you, and then influence your behaviour through nudges (discounts that will encourage you to buy certain products). An example of power doing things to us that we don’t want it to do is when Google records your location on your Android smartphone, even when you tell it not to.

Both types of power can also be seen at work at a more general level in the digital age. Tech constantly seduces us into doing things we would not otherwise do, from getting lost down a rabbit hole of videos on YouTube, to playing mindless games, or checking our phone hundreds of times a day. The digital age has brought about new ways of being in the world that don’t always make our lives better. Less visibly, the data economy has also succeeded in normalising certain ways of thinking. Tech companies want you to think that, if you have done nothing wrong, you have no reason to object to their holding your data. They also want you to think that treating your data as a commodity is necessary for digital tech, and that digital tech is progress – even when it might sometimes look worryingly similar to social or political regress. More importantly, tech wants you to think that the innovations it brings into the market are inevitable. That’s what progress looks like, and progress cannot be stopped.

That narrative is complacent and misleading. As the Danish economic geographer Bent Flyvbjerg points out in Rationality and Power (1998), power produces the knowledge, narratives and rationality that are conducive to building the reality it wants. But technology that perpetuates sexist and racist trends and worsens inequality is not progress. Inventions are far from unavoidable. Treating data as a commodity is a way for companies to earn money, and has nothing to do with building good products. Hoarding data is a way of accumulating power. Instead of focusing only on their bottom line, tech companies can and should do better to design the online world in a way that contributes to people’s wellbeing. And we have many reasons to object to institutions collecting and using our data in the way that they do.

Among those reasons is institutions not respecting our autonomy, our right to self-govern. Here is where the harder side of power plays a role. The digital age thus far has been characterised by institutions doing whatever they want with our data, unscrupulously bypassing our consent whenever they think they can get away with it. In the offline world, that kind of behaviour would be called matter-of-factly ‘theft’ or ‘coercion’. That it is not called this in the online world is yet another testament to tech’s power over narratives.

I t’s not all bad news, though. Yes, institutions in the digital age have hoarded privacy power, but we can reclaim the data that sustains it, and we can limit their collecting new data. Foucault argued that, even if power constructs human subjects, we have the possibility to resist power and construct ourselves. The power of big tech looks and feels very solid. But tech’s house of cards is partly built on lies and theft. The data economy can be disrupted. The tech powers that be are nothing without our data. A small piece of regulation, a bit of resistance from citizens, a few businesses starting to offer privacy as a competitive advantage, and it can all evaporate.

No one is more conscious of their vulnerability than tech companies themselves. That is why they are trying to convince us that they do care about privacy after all (despite what their lawyers say in court). That is why they spend millions of dollars on lobbying. If they were so certain about the value of their products for the good of users and society, they would not need to lobby so hard. Tech companies have abused their power, and it is time to resist them.

In the digital age, resistance inspired by the abuse of power has been dubbed a techlash. Abuses of power remind us that power needs to be curtailed for it to be a positive influence in society. Even if you happen to be a tech enthusiast, even if you think that there is nothing wrong with what tech companies and governments are doing with our data, you should still want power to be limited, because you never know who will be in power next. Your new prime minister might be more authoritarian than the old one; the next CEO of the next big tech company might not be as benevolent as those we’ve seen thus far. Tech companies have helped totalitarian regimes in the past, and there is no clear distinction between government and corporate surveillance. Businesses share data with governments, and public institutions share data with companies.

When you expose your privacy, you put us all at risk

Do not give in to the data economy without at least some resistance. Refraining from using tech altogether is unrealistic for most people, but there is much more you can do short of that. Respect other people’s privacy. Don’t expose ordinary citizens online. Don’t film or photograph people without their consent, and certainly don’t share such images online. Try to limit the data you surrender to institutions that don’t have a claim to it. Imagine someone asks for your number in a bar and won’t take a ‘No, thank you’ for an answer. If that person were to continue to harass you for your number, what would you do? Perhaps you would be tempted to give them a fake number. That is the essence of obfuscation, as outlined by the media scholars Finn Bruton and Helen Nissenbaum in the 2015 book of that name. If a clothing company asks for your name to sell you clothes, give them a different name – say, Dr Private Information, so that they get the message. Don’t give these institutions evidence they can use to claim that we are consenting to our data being taken away from us. Make it clear that your consent is not being given freely.

When downloading apps and buying products, choose products that are better for privacy. Use privacy extensions on your browsers. Turn your phone’s wi-fi, Bluetooth and locations services off when you don’t need them. Use the legal tools at your disposal to ask companies for the data they have on you, and ask them to delete that data. Change your settings to protect your privacy. Refrain from using one of those DNA home testing kits – they are not worth it. Forget about ‘smart’ doorbells that violate your privacy and that of others. Write to your representatives sharing your concerns about privacy. Tweet about it. Take opportunities as they come along to inform business, governments and other people that you care about privacy, that what they are doing is not okay.

Don’t make the mistake of thinking you are safe from privacy harms, maybe because you are young, male, white, heterosexual and healthy. You might think that your data can work only for you, and never against you, if you’ve been lucky so far. But you might not be as healthy as you think you are, and you will not be young forever. The democracy you are taking for granted might morph into an authoritarian regime that might not favour the likes of you.

Furthermore, privacy is not only about you. Privacy is both personal and collective. When you expose your privacy, you put us all at risk. Privacy power is necessary for democracy – for people to vote according to their beliefs and without undue pressure, for citizens to protest anonymously without fear of repercussions, for individuals to have freedom to associate, speak their minds, read what they are curious about. If we are going to live in a democracy, the bulk of power needs to be with the people. If most of the power lies with companies, we will have a plutocracy. If most of the power lies with the state, we will have some kind of authoritarianism. Democracy is not a given. It is something we have to fight for every day. And if we stop building the conditions in which it thrives, democracy will be no more. Privacy is important because it gives power to the people. Protect it.

Last hours of an organ donor

In the liminal time when the brain is dead but organs are kept alive, there is an urgent tenderness to medical care

Ronald W Dworkin

The environment

We need to find a way for human societies to prosper while the planet heals. So far we can’t even think clearly about it

Ville Lähde

Archaeology

Why make art in the dark?

New research transports us back to the shadowy firelight of ancient caves, imagining the minds and feelings of the artists

Izzy Wisher

Stories and literature

Do liberal arts liberate?

In Jack London’s novel, Martin Eden personifies debates still raging over the role and purpose of education in American life

a crowd of women dressed in black face the camera

Politics and government

India and indigeneity

In a country of such extraordinary diversity, the UN definition of ‘indigenous’ does little more than fuel ethnic violence

Dikshit Sarma Bhagabati

History of ideas

Reimagining balance

In the Middle Ages, a new sense of balance fundamentally altered our understanding of nature and society

Right to Privacy: Constitutional Rights & Privacy Laws

The right to privacy includes the right to be left alone.

The right to privacy refers to the concept that one's personal information is protected from public scrutiny. U.S. Justice Louis Brandeis called it "the right to be left alone." While not explicitly stated in the U.S. Constitution, some amendments provide some protections.

The right to privacy most often is protected by statutory law. For example, the Health Information Portability and Accountability Act (HIPAA) protects a person's health information, and the Federal Trade Commission (FTC) enforces the right to privacy in various privacy policies and privacy statements.

The right to privacy often must be balanced against the state's compelling interests, including the promotion of public safety and improving the quality of life. Seat-belt laws and motorcycle helmet requirements are examples of such laws. And while many Americans are quite aware that the government collects personal information, most say that government surveillance is acceptable.

Constitutional rights

The right to privacy often means the right to personal autonomy, or the right to choose whether or not to engage in certain acts or have certain experiences. Several amendments to the U.S. Constitution have been used in varying degrees of success in determining a right to personal autonomy:

The First Amendment protects the privacy of beliefs
The Third Amendment protects the privacy of the home against the use of it for housing soldiers
The Fourth Amendment protects privacy against unreasonable searches
The Fifth Amendment protects against self-incrimination, which in turn protects the privacy of personal information
The Ninth Amendment says that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." This has been interpreted as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The right to privacy is most often cited in the Due Process Clause of the 14th Amendment, which states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, the protections have been narrowly defined and usually only pertain to family, marriage, motherhood, procreation and child rearing.

For example, the Supreme Court first recognized that the various Bill of Rights guarantees creates a "zone of privacy" in Griswold v. Connecticut , a 1965 ruling that upheld marital privacy and struck down bans on contraception.

The court ruled in 1969 that the right to privacy protected a person's right to possess and view pornography in his own home. Justice Thurgood Marshall wrote in Stanley v. Georgia that, " If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."

The controversial case Roe v. Wade in 1972 firmly established the right to privacy as fundamental, and required that any governmental infringement of that right to be justified by a compelling state interest. In Roe, the court ruled that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, the mother's right to privacy limits state interference due to the lack of a compelling state interest.

In 2003, the court, in Lawrence v. Texas , overturned an earlier ruling and found that Texas had violated the rights of two gay men when it enforced a law prohibiting sodomy. [ Countdown: 10 Milestones in Gay Rights History ]

Justice Anthony Kennedy wrote, "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Access to personal information

A person has the right to determine what sort of information about them is collected and how that information is used. In the marketplace, the FTC enforces this right through laws intended to prevent deceptive practices and unfair competition.

The Privacy Act of 1974 prevents unauthorized disclosure of personal information held by the federal government. A person has the right to review their own personal information, ask for corrections and be informed of any disclosures.

The Financial Monetization Act of 1999 requires financial institutions to provide customers with a privacy policy that explains what kind of information is being collected and how it is being used. Financial institutions are also required to have safeguards that protect the information they collect from customers.

The Fair Credit Reporting Act protects personal financial information collected by credit reporting agencies. The act puts limits on who can access such information and requires agencies to have simple processes by which consumers can get their information, review it and make corrections.

Online privacy

Browsers and social media platforms, such as Facebook and Twitter, allow users to choose levels of privacy settings, from share everything to only share with friends to share only the minimum, such as your name, gender and profile picture. Protecting personally identifiable information is important for preventing identity theft.

The Children's Online Privacy Protection Act (COPPA) enforces a parent's right to control what information websites collect about their children. Websites that target children younger than 13 or knowingly collect information from children must post privacy policies, get parental consent before collecting information from children, allow parents to decide how such information is used and provide an opt-out option for future collection of a child's information.

Right of publicity

Just as a person has the right to keep personal information private, he or she also has the right to control the use of his or her identity for commercial promotion. Unauthorized use of one's name or likeness is recognized as an invasion of privacy.

There are four types of invasion of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. If a company uses a person's photo in an ad claiming that the person endorses a certain product, the person could file a lawsuit claiming misappropriation.

Movable boundaries

The Supreme Court approaches the right to privacy and personal autonomy on a case-by-case basis. As public opinion changes regarding relationships and activities, and the boundaries of personal privacy change, largely due to social media and an atmosphere of "sharing," the definition of the right to privacy is ever-changing.

What is Democracy?
What is Freedom?
Freedom of Assembly
Freedom of Expression
Freedom of Religion
Freedom of Speech
Freedom of the Press
The Second Amendment & the Right to Bear Arms

Sign up for the Live Science daily newsletter now

Get the world’s most fascinating discoveries delivered straight to your inbox.

Tim Sharp was Live Science’s reference editor from 2012 to 2018. Tim received a degree in Journalism from the University of Kansas. He worked for a number of other publications, including The New York Times, Des Moines Register and Tampa Bay Times, and as an editor for the Hazelden Foundation, among others.

30,000 years of history reveals that hard times boost human societies' resilience

'We're meeting people where they are': Graphic novels can help boost diversity in STEM, says MIT's Ritu Raman

Gargantuan sunspot 15-Earths wide shoots powerful X-class flare toward Earth, triggering radio blackouts

The Concept of the Right to Privacy

First Online: 15 February 2024

Cite this chapter

Sohail Aftab 26

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 109))

64 Accesses

This chapter investigates the intricate concept of the right to privacy, embarking on a profound meta-theoretical analysis that unveils the multifaceted nature of this fundamental human right. It underscores that privacy, deeply rooted in both dignity and autonomy, is more than just a legal construct—it represents a fundamental cornerstone of human rights, possessing both deontological and instrumental value. One key insight is that privacy doesn’t always hinge on the presence of demonstrable harmful consequences; rather, it stands as an inherent right with strong normative significance. This recognition of privacy as an aspect of human dignity underscores its firm deontological grounding and the need for protection, even when secondary harms may not be readily apparent.

The chapter also confronts the challenge of crafting a universally comprehensive definition for privacy. It acknowledges that privacy infringements are often context-specific, making a one-size-fits-all definition elusive. Yet, this flexibility in the concept is not a weakness but a strength, allowing it to adapt to a wide array of practical issues, particularly in the ever-evolving digital landscape where traditional notions of morality and normativity face dire challenges due to ubiquitous infringements.

Furthermore, the considerations firmly advocate for a human rights approach to the protection of privacy, one supported by moral and constitutional principles. Just as with other fundamental rights, any intrusion into privacy must be justified, especially when it collides with other essential rights like free speech. This necessitates a careful balancing act, as both the right to privacy and the right to free speech hold equal value. Even media outlets and journalists do not possess a special privilege; their conduct should be evaluated based on the nature of the speech they convey. While the framework developed in this chapter fully recognizes the inherent value of free speech, it refrains from elevating it to an absolute right. This recognition stems from the understanding that media often operates with profit maximization as a central goal, especially in today's media landscape where financial considerations are paramount. The chapter's comprehensive conceptual study lays a robust foundation for comprehending the intricate interplay between privacy and free speech, particularly within the context of media intrusions into private life. It thereby offers valuable insights for the subsequent prescriptive phase, where recommendations for privacy law protection in Pakistan and beyond will be carefully formulated.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Available as PDF
Read on any device
Instant download
Own it forever
Available as EPUB and PDF
Durable hardcover edition
Dispatched in 3 to 5 business days
Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Solove ( 2002 ), p. 1089.

Beaney ( 1966 ), p. 255.

Gerety ( 1977 ), p. 233.

Hallborg ( 1986 ), p. 176.

Moore ( 2003 ), p. 215.

Solove ( 2006 ), p. 477.

Birnhack ( 2011 ), p. 51.

Carolan ( 2011 ).

Krotoszynski ( 2016 ), p. xi.

Solove ( 2002 ), p. 1090.

Allen ( 1988 ), p. 04.

For example, Solove has categorized the concepts of privacy into six groups.

For instance, Solove has explained Warren and Brandeis approach under the “right to be alone” heading, while Judith Decew has explained it under Informational Privacy in her piece, “Privacy (Stanford Encyclopaedia of Philosophy), saying: “Warren and Brandeis thus laid the foundation for a concept of privacy that has come to be known as control over information about oneself.” and “Narrow views of privacy focusing on control over information about oneself that were defended by Warren and Brandeis.”

Warren and Brandeis ( 1890 ), p. 196.

Warren and Brandeis ( 1890 ), p. 197.

See Table 1: Shapiro and Pearse ( 2012 ), p. 1489.

Warren and Brandeis ( 1890 ), p. 195.

Warren and Brandeis ( 1890 ), p. 213.

Warren and Brandeis ( 1890 ), p. 205.

Warren and Brandeis ( 1890 ), p. 216. (Footnote omitted).

Warren and Brandeis ( 1890 ), pp. 217–218.

Warren and Brandeis ( 1890 ), pp. 193, 219.

Olmstead v. United States 277 U.S. 438 (1928) (Justice Brandeis registered his dissent which should be considered as an important appendix to his article, covering intrusion this time, which was not comprehensively discussed. The article primarily focused on the publication of private information.)

Olmstead v. United States 277 U.S. 438 (1928) 479–478

Olmstead v. United States 277 U.S. 438 (1928) P. 483: (“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”)

Letter from Roscoe Pound to William Chilton (1916) quoted in: Brandeis A Mason, ‘A Free Man’s Life’ 70 (1956), cited in: Glancy ( 1979 ). See also: Kramer ( 1989 ).

Prosser ( 1960 ), p. 384.

Posner ( 1978 ), p. 400.

See for details: Moor ( 1990 ), pp. 69–82.

Thomson ( 1975 ), p. 4. According to her approach, X-ray device does not interfere with seclusion yet capable of getting private information. On the other hand, physical assault on somebody is tantamount to not letting him alone yet this is not a privacy violation.

Parent ( 1983b ), p. 342.

Parent ( 1983a ), p. 269.

Solove ( 2002 ), p. 1105.

DeCew ( 1986 ), pp. 154–155.

Posner ( 1978 ), p. 393.

Etzioni ( 2005 ), p. 196.

Solove ( 2002 ), p. 1107.

Haag ( 1971 ), p. 149.

Rachels ( 1975 ), p. 323.

Scanlon ( 1975 ), p. 315.

Rachels ( 1975 ), p. 326.

Solove ( 2002 ), p. 1104.

Gavison ( 1980 ), p. 423. Footnote omitted.

Gavison ( 1980 ), p. 423.

Allen ( 1988 ), p. 03.

Allen ( 1988 ), p. 3.

Bok ( 1989 ), pp. 10–11.

Bok ( 1989 ), p. 12.

Parent ( 1983b ), pp. 344–346.

He terms Gavison’s approach as a unique and “the most compelling” definition that addresses some shortcomings.

Biehler et al. ( 2008 ), pp. 8–9: “It envisages privacy as an original state of secret inaccessibility. It can either be preserved in this pristine state or destroyed. Once access is allowed, the privacy interest is lost.”

Westin (1067), p. 05.

Westin (1067), pp. 4–5.

Westin (1067), p. 46.

Fried ( 1968 ), p. 482.

See: E L Beardsley, ‘Privacy: Autonomy and selective disclosure’ in J Ronald Pennock & J V Chapman eds Privacy (Nomos XIII 1971) 56–70) as cited in: Moor ( 1990 ), p. 74.

Parent ( 1983a ).

Miller ( 1971 ) . Miller defines privacy as: “the basic of an effective right to privacy is the individual’s ability to control the circulation of information relating to him.”

Lusky ( 1972 ), p. 693.

Lusky ( 1972 ), p. 697.

Lusky ( 1972 ), pp. 699–700. Likewise, Lusky also criticizes the courts for following the Westinian approach in balancing other values vis-à-vis privacy. To Lusky, balancing is not a judicial function rather it is a legislative function. The ordinary function of the courts is not to engage in balancing exercise but to “interpret and apply the legislative (or constitutional) rules that embody the results of “balancing” in the broader, non-Westinian sense”.

Lusky ( 1972 ), p. 706.

Lusky ( 1972 ), p. 693. According to Lusky ( 1972 ), p. 708: “Is it better, for our purpose, to describe our problems by use of a term connoting the underlying human value that is the object of our concern (privacy)-deferring judgment as to whether, how, and to what extent it should be accorded legal protection or should we take a short cut and adopt, as our basic term, a phrase that assumes legal protection or the need for it (right of privacy)?”

Lusky ( 1972 ), p. 709.

Parent ( 1983a ), p. 273.

Parent ( 1983b ), p. 344.

Miller ( 1971 ).

Parker ( 1973 –1974), pp. 275–276.

Parker ( 1973 –1974), p. 279. Emphasis supplied.

Parker ( 1973 –1974), p. 280.

Parker ( 1973 –1974), p. 281..

Fried ( 1968 ), p. 475.

Fried ( 1968 ), p. 477.

Fried ( 1968 ), p. 480.

Fried ( 1968 ), p. 490.

Gerstein ( 1978 ), p. 76.

Gerstein ( 1978 ), p. 77.

Gerstein ( 1978 ), p. 78.

Gerstein ( 1978 ), p. 81.

Inness ( 1996 ), p. 56.

Inness ( 1996 ), p. 95.

Solove ( 2008 ), p. 36.

Feldman ( 1994 ), p. 51.

Bloustein ( 1964 ).

A detailed exposition of Prosser’s theory is given in Sect. 3.5.1.1 .

Prosser rejects privacy as a new and independent tort which, according to him, is not based on an independent value of its own but rather a blend of four distinct torts aiming at the protection of three different interests of mental tranquility, reputation, and proprietary interest.

Bloustein ( 1964 ), p. 971.

Prosser’s four torts are: (a) intrusion; (b) public disclosure; (c) use of name or likeness and (d) false light.

Bloustein ( 1964 ), p. 979.

Bloustein ( 1964 ), p. 982. Footnotes omitted.

Bloustein ( 1964 ), p. 989.

Bloustein ( 1964 ), p. 992.

Bloustein ( 1964 ), p. 994.

Bloustein ( 1964 ), p. 995.

Bloustein ( 1964 ), p. 1000. FN omitted.

Reiman ( 1976 ), p. 26.

Reiman ( 1976 ), p. 39.

Reiman ( 1976 ), pp. 40–41. Footnote omitted.

Reiman ( 1976 ), p. 42.

Reiman ( 1976 ), p. 43.

For the following considerations see: Albers ( 2013 ), pp. 15–44.

Albers ( 2014 ), p. 214.

See for the reasons of complexity and the need for a sophisticated approach with reference to data protection regulatory mechanisms: Albers ( 2014 ).

Nissenbaum ( 2009 ).

Nissenbaum ( 2009 ), p. 11.

Nissenbaum ( 2004 ), p. 119.

Nissenbaum ( 2004 ), pp. 138, 159: “The framework of contextual integrity requires that practices be evaluated in relation to entrenched context- relative informational norms, which in turn requires characterizing them in terms of actors (subjects, senders, receivers), types of information, and principles of transmission. If a novel practice results in a departure from the patterns of flow prescribed by entrenched norms, the novel practice is flagged as a breach and we have prima facie evidence that contextual integrity has been violated. Because it invokes several parameters simultaneously and incorporates conceptual resources for resolving conflicts not found in many other theories, contextual integrity is a more sensitive instrument for identifying privacy breaches. In particular, it avoids the impossible mire into which the overworked public/private dichotomy frequently leads when applied to the messy and contingent realms of privacy.” 159.

Nissenbaum ( 2004 ), pp. 154–155.

Nissenbaum ( 2009 ), p. 06.

Nissenbaum ( 2009 ), p. 116. See for a full account of this view with reference to ICT communication, Nissenbaum ( 1998 ), pp. 559–596.

Nissenbaum ( 2009 ), p. 158.

Nissenbaum ( 2009 ), p. 133.

Nissenbaum ( 2009 ), pp. 187, 239.

Fried ( 1968 ), p. 485.

Fried ( 1968 ), pp. 486–487.

Fried ( 1968 ), p. 487. Citation omitted.

Fried ( 1968 ), p. 493.

Reiman ( 1976 ), pp. 38–39: “Privacy is a social ritual by means of which an individual's moral title to his existence is conferred. Privacy is an essential part of the complex social practice by means of which the social group recog- nizes-and communicates to the individual-that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. He must also recognize that he has an exclusive moral right to shape his destiny. And this in turn presupposes that he believes that the concrete reality which he is, and through which his destiny is realized, belongs to him in a moral sense.”

Gavison ( 1980 ), p. 423. Footnotes omitted.

Gavison ( 1980 ), p. 433.

Gavison ( 1980 ), pp. 428–429.

Gavison ( 1980 ), p. 438.

Gavison ( 1980 ), p. 436.

Gavison ( 1980 ), p. 445.

Gavison ( 1980 ), p. 467.

Gavison ( 1980 ), pp. 467–471.

Solove ( 2008 ).

Solove ( 2008 ), p. 76.

Solove ( 2008 ), p. 112.

Roger Clarke, Smart Card Technical Issues Starter Kit, Ch. 3 (April 8, 1998) as referred by Solove.

Solove ( 2008 ), p. 131.

Solove ( 2008 ), p. 141.

Solove ( 2008 ), p. 147.

Solove ( 2008 ), p. 148.

Solove ( 2008 ), p. 150.

Solove ( 2008 ), p. 152.

Solove ( 2008 ), p. 133.

Solove ( 2008 ), p. 155.

Prosser ( 1960 ), p. 406

Solove ( 2008 ), p. 156.

Solove ( 2008 ), p. 160.

Solove ( 2008 ), p. 163.

Solove ( 2008 ), p. 45.

Solove ( 2008 ), p. 46: “It is no accident that various things are referred to under the rubric of “privacy”. They bear substantial similarities to each other. The analogies between different things can be useful and instructive, for we might seek to create similar laws and policies to regulate them.”

Koops et al. ( 2016 ), p. 483, 576. Koops et al. have analyzed four prominent theoretical works on privacy in a chronological order and have pointed out their limitations. Among them are Westin ( 1967 ); Roger Clarke, Introduction to Dataveillance and Information Privacy, and Definitions of Terms, http://www.rogerclarke.com/DV/Intro.html . Accessed 26 August 2023. Allen ( 2011 ); Finn et al. ( 2013 ). According to Koops et al., a common limitation of these works is, for instance, that, “it is not always clear whether the classification is a typology, a taxonomy, or simply an enumerative list.” (p. 505). The second limitation is that these conceptions parallel discuss both privacy as a concept and the right to privacy, which confuses the normative dimension of the discussion with the positivist approach and thus most of the conceptions fail to cope with the socio-legal challenges posed by modern technological advancements.

Koops et al. ( 2016 ), p. 489.

Koops et al. ( 2016 ), p. 495.

Koops et al. ( 2016 ), pp. 490–491.

Koops et al. ( 2016 ), pp. 567–568.

Roberson v. Rochester Folding Box Co171 N.Y. 538, 64 N.E. 442 (1902) as cited in Prosser’s, William L. “Privacy” Cal. L. Rev. 48 (1960): 383. At page: 384.

Prosser ( 1960 ), p. 389.

Prosser ( 1960 ), pp. 393–396.

Prosser ( 1960 ), p. 398.

Please see Sect. 3.3.3.2 .

Davis ( 1959 ).

Davis ( 1959 ), pp. 1–3.

Davis ( 1959 ), p. 5. Footnotes omitted.

Davis ( 1959 ), pp. 7–9.

Davis ( 1959 ), p. 11.

Davis ( 1959 ), p. 13.

Davis ( 1959 ), pp. 18, 20: “The usefulness of the “right to privacy” as a jural concept can be more easily calculated if “privacy” is recognized as a condition or state achieved when other more elementary interests are safeguarded. Thus, if it is agreed that a person should not be subjected to acts causing mental suffering or emotional distress, and if it is agreed that the inherent utility of personality and circumstances ought to be above piracy or unwarranted expropriation, there arises no need to protect “privacy”. In other words, “privacy” is an interest or condition which derives from and is automatically secured by the protection of more cognizable rights.”

Davis ( 1959 ), p. 24: “[T]o gather together a number of diverse and explicit tort causes of action under general social concepts without further articulation is to undermine the administration of justice by blurring the lines between deserving and undeserving cases.”

Thomson ( 1975 ), p. 295.

For example an X-ray device which is developed for sensing the activities of a person who is unaware of it.

Thomson ( 1975 ), p. 296.

Thomson ( 1975 ), p. 296, 303: “For if we have fairly stringent rights over our property, we have very much more stringent rights over our own persons. None of you came to possess your knee in exactly the way in which you came to possess your shoes or your pornographic pictures: I take it you neither bought nor inherited your left knee. And I suppose you could not very well sell your left knee. But that isn’t because it isn’t yours to sell some women used to sell their hair, and some people nowadays sell their blood but only because who’d buy a used left knee? For if anyone wanted to, you are the only one with a right to sell yours. Again, it’s a nasty business to damage a knee; but you’ve a right to damage yours, and certainly nobody else has its being your left knee includes your having the right that nobody else but you shall damage it.”

Thomson ( 1975 ), p. 306.

Thomson ( 1975 ), p. 313.

Posner ( 1978 ), pp. 397–398.

Posner ( 1978 ), p. 399: “[A]s when a worker conceals a serious health problem from his employer or a prospective husband conceals his sterility from his fiancée.”

Posner ( 1978 ), p. 401.

Posner ( 1978 ), p. 408.

Posner ( 1978 ), p. 396.

Etzioni ( 2005 ).

Etzioni ( 2005 ), p. 18, 42: “The communitarian perspective also enters this analysis by reminding us that a given individual right cannot be used to trump all other considerations, including the common good. Obviously, limiting privacy in the case at hand benefits, not merely the child but also the community.”

Etzioni ( 2005 ), pp. 43–74.

See Ch 3 p. 81 in particular in: Etzioni ( 2005 ).

Etzioni ( 2005 ), pp. 117–120.

MacKinnon ( 1989 ), p. 194.

MacKinnon ( 1989 ), chapter 10.

MacKinnon ( 1989 ), pp. 184–185.

MacKinnon ( 1989 ), p. 187.

MacKinnon ( 1989 ), p. 188. “ The abortion right frames the way men arrange among themselves to control the reproductive consequences of intercourse. The availability of abortion enhances the availability of intercourse. ”

MacKinnon ( 1989 ), p. 191.

MacKinnon ( 1989 ), p. 193.

See for full review: Section 2.

Gerety ( 1977 ), p. 234.

Gavison ( 1991 ), pp. 456–457: “First, we need to have a clear analysis of the two competing values involved, what they are, why they are desirable, and how they relate to each other. This may require some conceptual analysis and a lot of moral and human understanding of the ways in which ideals and goals work in our lives and affect other goals that we have as individuals and a society. When we proceed to discuss conflicts between rights, values, or interests, it is crucial that we not lose sight of what we have learned in the first stage by analyzing the different values. We should remember this because situations of conflict are painful. Therefore, we have a tendency, once we have resolved the conflict as we must, to undervalue what we have given up in order to be at peace with the decision that we have adopted.”

Section 2.1 of this book (Invasive media practices).

For a detailed analysis with an American Constitutional law perspective: Emerson ( 1979 ).

Emerson ( 1979 ), p. 329.

Barendt ( 2005 ), p. 07.

Barendt ( 2005 ), p. 08.

Barendt ( 2005 ), p. 09.

Barendt ( 2005 ), p. 10.

See Barendt ( 2005 ), p. 10: Here Barendt gives the example of the statement, “the moon is made of green cheese.”

Barendt ( 2005 ), p. 11.

Barendt ( 2005 ), p. 12.

Barendt ( 2005 ), p. 14.

Barendt ( 2005 ), p. 18.

Barendt ( 2005 ), p. 20.

Barendt ( 2005 ), p. 21.

Schauer 86, as cited in: Barendt ( 2005 ), p. 21.

A detailed explanation of different approaches to ‘Balancing of human rights and its justification’ is given in Sect. 5.4.1 .

Tunick ( 2015 ), p. 95.

See Lichtenberg ( 1987 ), p. 330: ‘Foundations and Limits of Freedom of the Press’ (1987) 16 Philosophy & Public Affairs 4, 329 ( “(i) More often than not, contemporary news organizations belong to large corporations whose interests influence what gets covered (and, what is probably more central, what does not) and how.2 (2) News organizations are driven economically to capture the largest possible audience, and thus not to turn it off with whatever does turn it off-coverage that is too controversial, too demanding, too disturbing. (3) The media are easily manipulated by government officials (and others), for whom the press, by simply reporting press re- leases and official statements, can be a virtually unfiltered mouthpiece. (4) Characteristics of the media themselves constrain or influence cover- age; thus, for example, television lends itself to an action-oriented, unanalytic treatment of events that can distort their meaning or importance.”

Dawes ( 2014 ), p. 18.

Meiklejohn ( 2000 ), p. 104.

Emerson ( 1979 ), p. 331.

Emerson ( 1979 ), p. 341. Footnote omitted.

See also for example, Glancy ( 2000 ), p. 375: ‘At the Intersection of Visible and Invisible Worlds: United States Privacy Law and the Internet’ (2000)16 Santa Clara Computer & High Tech LJ 357. “Because privacy law has characteristically evolved by solving a particular type of privacy problem or by reacting to a notorious invasion of privacy, or by protecting a particular type of personal information, it is not surprising that context plays an important role in the diversity of privacy law.”

Albers M (2013) Privatheitsschutz als Grundrechtsproblem. In: Halft S, Krah H (eds) Privatheit. Strategien und Transformationen, Stutz Passau, pp 15–44

Google Scholar

Albers M (2014) Realizing the complexity of data protection. In: Gutwirth S, Leenes R, Hert PD (eds) Reloading data protection. Springer, Dordrecht, pp 213–235

Chapter Google Scholar

Allen A (2011) Unpopular privacy: what must we hide? Oxford University Press, New York

Book Google Scholar

Allen AL (1988) Uneasy access: privacy for women in a free society. Rowman & Littlefield

Barendt E (2005) Freedom of speech. Oxford University Press

Beaney WB (1966) The Right to privacy and American law. Law Contemp Probs 31:253

Article Google Scholar

Biehler H, Carolan E, Murphy C (2008) The right to privacy: a doctrinal and comparative analysis. Thomson Round Hall

Birnhack M (2011) A quest for a theory of privacy: Context and control. Jurimetrics 51 https://ssrn.com/abstract=1824533 . Accessed 25 Aug 2023

Bloustein EJ (1964) Privacy as an aspect of human dignity: an answer to Dean Prosser. N Y Univ Law Rev 39:962

Bok S (1989) Secrets: on the ethics of concealment and revelation. Vintage, New York

Carolan E (2011) The concept of a right to privacy. https://ssrn.com/abstract=1889243 . Accessed 25 Aug 2023

Davis F (1959) What do we mean by right to privacy. SDL Rev 4:1

Dawes S (2014) Press freedom, privacy and the public sphere. J Stud 15:1

DeCew JW (1986) The scope of privacy in law and ethics. Law Philosophy 05:145

Emerson TI (1979) The right of privacy and freedom of the press. Harv CR-CLL Rev 14:329

Etzioni A (2005) The limits of privacy. Basic Books Group, New York

Feldman D (1994) Secrecy, dignity, or autonomy? Views of privacy as a civil liberty. Curr Legal Probl 47:41

Finn RL, Wright D, Friedewald M (2013) Seven types of privacy. In: Gutwirth S, Leenes R, de Hert P, Poullet Y (eds) European data protection: coming of age. Springer, Dordrecht

Fried C (1968) Privacy. Yale Law J 77:475

Gavison R (1991) Too early for a requiem: Warren and Brandeis were right on privacy vs. free speech. SCL Rev 43:437

Gavison RE (1980) Privacy and the limits of law. Yale Law J 89(3):421

Gerety T (1977) Redefining privacy. Harv Civil Rights-Civil Libert Law Rev 12:233

Gerstein RS (1978) Intimacy and privacy. Ethics 89(1):76

Glancy D (2000) At the intersection of visible and invisible worlds: United States privacy law and the internet. Santa Clara Comput High Technol Law J 16:357

Glancy DJ (1979) The invention of the right to privacy. Ariz Law Rev 21:1

Haag EVD (1971) On privacy’. In: Pennock JR, Chapman JV (eds) Privacy. Nomos, XIII

Hallborg RB Jr (1986) Principles of liberty and the right to privacy. Law Philosophy 5:175

Inness JC (1996) Privacy, intimacy, and isolation. Oxford University Press

Koops BJ, Newell BC, Timan T, Skorvanek I, Chokrevski T, Galic M (2016) A typology of privacy. Univ Pa J Int Law 38:483

Kramer IR (1989) The birth of privacy law: a century since warren and Brandeis. Cath Univ Law Rev 39:703

Krotoszynski RJ (2016) Preface: privacy revisited: a global perspective on the right to be left alone. Oxford University Press

Lichtenberg J (1987) Foundations and limits of freedom of the press. Philosophy Public Aff 16(4):329

Lusky L (1972) Invasion of privacy: a clarification of concepts. Columbia Law Rev 72(4):693

MacKinnon CA (1989) Toward a feminist theory of the state. Harvard University Press

Mark T (2015) Balancing privacy and free speech: Unwanted attention in the age of social media. Routledge

Meiklejohn A (2000) Free speech and it relation to self-government. The Lawbook Exchange Ltd

Miller A (1971) The assault on privacy. University of Michigan Press

Moor JH (1990) The ethics of privacy protection. Library Trends 39:69–82

Moore AD (2003) Privacy: its meaning and value. Am Philosophical Quart 40:215

Nissenbaum H (1998) Protecting privacy in an information age: the problem of privacy in public. Law Philosophy 17:559

Nissenbaum H (2004) Privacy as contextual integrity. Wash Law Rev 79:119

Nissenbaum H (2009) Privacy in context technology, policy, and the integrity of social life. Stanford Law Books

Parent WA (1983a) Privacy, morality and the law. Philosophy Public Aff 12(4):269

Parent WA (1983b) Recent work on the concept of privacy. Am Philosophical Quart 20(4):341

Parker RB (1973-74) A definition of privacy. Rutgers Law Rev 27:275

Posner RA (1978) The right of privacy. Georgia Law Rev 12:393

Prosser WL (1960) Privacy. Calif Law Rev 48:383

Rachels J (1975) Why privacy is important. Philosophy Public Aff 4:323

Reiman H (1976) Privacy, intimacy, and personhood. Philosophy and Public Affairs 6:26

Scanlon T (1975) Thomson on privacy. Philosophy Public Aff 315

Shapiro FR, Pearse M (2012) The most-cited law review articles of all time. Mich Law Rev 110:1483

Solove DJ (2002) Conceptualizing privacy. Calif Law Rev 90(1087):1092–1126

Solove DJ (2006) A taxonomy of privacy. Univ Pa Law Rev 154:477

Solove DJ (2008) Understanding privacy. Harvard University Press

Thomson JJ (1975) The right to privacy. Philosophy Public Aff 01:295

Warren SD, Brandeis LD (1890) The right to privacy. Harv Law Rev 15:193–220

Westin A (1967) Privacy and freedom. New York Ig Publishing

Download references

Author information

Authors and affiliations.

Ministry of Information and Broadcasting, Government of Pakistan, Islamabad, Pakistan

Sohail Aftab

You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Aftab, S. (2024). The Concept of the Right to Privacy. In: Comparative Perspectives on the Right to Privacy. Ius Gentium: Comparative Perspectives on Law and Justice, vol 109. Springer, Cham. https://doi.org/10.1007/978-3-031-45575-9_3

Download citation

DOI : https://doi.org/10.1007/978-3-031-45575-9_3

Published : 15 February 2024

Publisher Name : Springer, Cham

Print ISBN : 978-3-031-45574-2

Online ISBN : 978-3-031-45575-9

eBook Packages : Law and Criminology Law and Criminology (R0)

Share this chapter

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

Publish with us

Policies and ethics

Find a journal
Track your research

louisville.edu
PeopleSoft HR
PeopleSoft Campus Solutions
PeopleSoft Financials
Business Ops
Cardinal Careers

Undergraduate
International
Online Learning

Louis D. Brandeis School of Law Library

Law Library User's Manual
Electronic Resources
The Louis D. Brandeis Collection
Law Library Home Page
The Right to Privacy
Special Collections
Guide to the Louis D. Brandeis Collection at the University of Louisville
Property Rights of the Collection
History of the Collection
Editorial Comment
How to Access the Microfilm Reels of the Louis D. Brandeis Collection
The Brandeis Family Tree
Writings about Louis D. Brandeis
Writings by Louis D. Brandeis

Originally published in 4 Harvard Law Review 193 (1890)

"It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage."

Willes, J., in Millar v. Taylor , 4 Burr, 2303, 2312.

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis . Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.

Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault. 1 Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. 2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow men, was considered and the law of slander and libel arose. 3 Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable. 4 Occasionally the law halted--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit , was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded. 5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind, 6 as works of literature and art, 7 good-will, 8 trade secrets, and trade-marks. 9

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." 10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; 11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. 12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, 13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.

Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.

Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria . Injury of feelings may indeed be taken account of, 14 in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another. 15

It is not, however, necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. 16 Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word 17 or by signs, 18 in painting, 19 by sculpture, or in music. 20 Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. 21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. 22 No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public--in other words, publishes it. 23 It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. 24 The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.

What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property; 25 and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them. 26 Yet in the famous case of Prince Albert v . Strange the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "'the publishing (at least by printing or writing) though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise." 27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy. 28

That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs. 29

The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection"; and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published." 30 But these decisions have not been followed, 31 and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed.

Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange , already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in questions, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v . Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he hear and saw, the court would not, in the king's lifetime, have permitted him to print and publish it"; and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting.

These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed--and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality. 32

If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.

It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement effort. 33 This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person--the right to one's personality.

It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.

Thus, in Abernethy v. Hutchinson , 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling."

In Prince Albert v. Strange , 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained.

In Tuck v. Priester , 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract.

In Pollard v. Photographic Co. , 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property, 34 in order to bring it within the line of those cases which were relied upon as precedents. 35

This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.

Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted. 36 Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy. 37

A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence. 38 It would, of course, rarely happen that anyone would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge lay an ordinary trespass--for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard , 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence"; but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book. 39

We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise. 40

If the invasion of privacy constitutes a legal injuria , the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation.

The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.

The right to privacy, limited as such right must necessarily be, has already found expression in the law of France. 41

It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property.

1. The right to privacy does not prohibit any publication of matter which is of public or general interest.

In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest. 42 There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law-- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se . To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.

The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn. 43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case--a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.

In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public quasi-public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation. 44

2. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.

Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committee of such assemblies, or practically by any communication made in airy other public body, municipal or parochial, or in any body quasi-public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege. 45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned. 46

3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.

The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel. 47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether. 48

4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided established also what should be deemed a publication--the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law. 49

5. The truth of the matter published does not afford a defense.

Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all. 50

6. The absence of "malice" in the publisher does not afford a defense.

Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at common law, except in rebuttal of some defense, e.g. , that the occasion rendered the communication privileged, or, under the statutes in this state and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is casually complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses.

The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:--

1. An action of tort for damages in all cases. 51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.

2. An injunction, in perhaps a very limited class of cases. 52

It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required. 53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?

Samuel D. Warren, Louis D. Brandeis

Boston, December, 1890.

1 . Year Book, Lib. Ass. , folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault.

2 . These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations.

3 . Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl. Reeves Eng. Law , 395) seems to be the earliest reported case of an action for slander.

4. Winsmore v. Greenbank, Willes, 577 (1745).

5. Loss of service is the gist of the action; but it has been said that "we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, J., in Lavery v. Crooke , 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne , 9 John. 387 (1912). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl , 3 Esp. 119 (1800); Andrews v. Askey , 8 C. & P. 7 (1837); Phillips v. Hoyle , 4 Gray 568 (1855); Phelin v. Kenderdine , 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers , 2 C. & P. 292 (1827); Black v. Carrolton R.R. Co. , 10 La.Ann. 33 (1855); Covington Street Ry. Co. v. Packer , 9 Bush, 455 (1872).

6. "The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover may be true in an early stage of society, when property is in its simple form and the remedies for violation of it also simple, but is not true in a more civilized state, when the relation of life and the interests arising therefrom are complicated." Erle, J., in J efferys v. Boosey , 4 H.L.C. 815, 869 (1845).

7. Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright 54, 61.

8. Gibblett v . Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property.

9. Hogg v. Kirby , 8 Ves. 215 (1803). As late as 1742, Lord Hardwicke refused to treat a trademark as property for infringement upon which an injunction could be granted. Blanchard v. Hill , 2 Atk. 484.

10. Cooley on Torts , 2d ed., p. 29.

11. 8 Amer. Law Reg . N.S. 1 (1869); 12 Wash. Law Rep . 353 (1884); 24 Sol. J. & Rep . 4 (1879).

12. Scribner's Magazine , July, 1890. "The Rights of the Citizen: to His Reputation," by E. L. Godkin, Esq. pp. 65, 67.

13. Marion Manola v. Stevens & Myers , N.Y.Supreme Court, New York Times of June 15, 18, 21, 1890. There, the complainant alleged that, while she was playing in the Broadway Theatre, in a role which required her appearance in tights, she was, by means of a flashlight, photographed surreptitiously and without her consent, from one of the boxes, by defendant Stevens, the manager of the "Castle in the Air" company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued ex parte , and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition.

14. Though the legal value of "feelings" is now generally recognized, distinctions have been drawn between the several classes of cases in which compensation may or may not be recovered. Thus, the fright occasioned by an assault constitutes a cause of action, but fright occasioned by negligence does not. So fright coupled with bodily injury affords a foundation for enhanced damages; but, ordinarily, fright unattended by bodily injury cannot be relied upon as an element of damages, even where a valid cause of action exists, as in trespass quare clausum fregit . Wyman v. Leavitt , 71 Me. 227; Canning v. Williamstown , 1 Cush. 451. The allowance of damages for injury to the parents' feelings, in case of seduction, abduction of a child (Stowe v . Heywood, 7 All. 118), or removal of the corpse of child from a burial-ground ( Meagher v. Driscoll , 99 Mass. 281), are said to be exceptions to a general rule. On the other hand, injury to feelings is a recognized element of damages in actions of slander and libel, and of malicious prosecution. These distinctions between the cases, where injury to feelings does and where it does not constitute a cause of action or legal element of damages, are not logical, but doubtless serve well as practical rules. It will, it is believed, be found, upon examination of the authorities, that wherever substantial mental suffering would be the natural and probable result of the act, there compensation for injury to feelings has been allowed, and that where no mental suffering would ordinarily result, or if resulting, would naturally be but trifling, and, being unaccompanied by visible signs of injury, would afford a wide scope for imaginative ills, there damages have been disallowed. The decisions on this subject illustrate well the subjection in our law of logic to common-sense.

15. "Injuria, in the narrower sense, is every intentional and illegal violation of honour, i.e. , the whole personality of another." "Now an outrage is committed not only when a man shall be struck with the fist, say, or with a club, or even flogged, but also if abusive language has been used to one." Salkowski, Roman Law , p. 668 and p. 669, n. 2.

16. "It is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends." Yates, J., in Millar v. Taylor , 4 Burr. 2303, 2379 (1769).

17. Nichols v. Pitman , 26 Ch. D. 374 (1884).

18. Lee v. Simpson , 3 C.B. 871, 881; Daly v. Palmer , 6 Blatchf. 256.

19. Turner v. Robinson , 10 Ir. Ch. 121; S. C. ib. 510.

20. Drone on Copyright , 102.

21. "Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive -- rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce.

"The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be 'For the encouragement of learning,' and using the words 'taken the liberty,' in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 695 (1849).

22. "The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not, without his consent, be published." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 694.

23. Duke of Queensbury v . Shebbeare, 2 Eden 329 (1758); Bartlett v. Crittenden , 5 McLean 32, 41 (1849).

24. Drone on Copyright , pp. 102, 104; Parton v. Prang , 3 Clifford 537, 548 (1872); Jefferys v. Boosey , 4 H.L.C.815, 867, 962 (1854).

25. "The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of the friendship affords a reason for the interference of the court." Lord Eldon in Gee v. Pritchard , 2 Swanst. 402, 413 (1818).

"Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 695.

"It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of, his correspondent." Duer, J., in Woolsey v. Judd , 4 Duer 379, 384 (1855).

26. "A work lawfully published, in the popular sense of the term, stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented, and otherwise treated, in a manner that the latter is not.

"Suppose, however -- instead of a translation, an abridgment, or a review -- the case of a catalogue -- suppose a man to have composed a variety of literary works ('innocent,' to use Lord Eldon's expression), which he has never printed or published, or lost the right to prohibit from being published -- suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does that law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also.

"By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped.

"Again, the manuscripts may be those of a man on account of whose name alone a mere list would be a matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale!" Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 693.

27. "A copy or impression of the etchings would only be a means of communicating knowledge and information of the original, and does not a list and description of the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question; they all depend upon the extent of right under the acts respecting copyright, and have no analogy to the exclusive rights in the author of unpublished compositions which depend entirely upon the common law right of property." Lord Cottenham in Prince Albert v. Strange , 1 McN. & G. 23, 43 (1849). "Mr. Justice Yates, in Millar v. Taylor , said that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Everyone, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances.

"I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion -- an unbecoming and unseemly intrusion -- an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man -- if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life -- into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 696, 697.

28. Kiernan v. Manhattan Quotation Co. , 50 How. Pr. 194 (1876).

29. "The defendants' counsel say that a man acquiring a knowledge of another's property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally or in print or writing.

"I claim, however, leaving to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property.

"It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples. . . .

"It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another -- may be not only an ideal calamity -- but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 689, 690.

30. Hoyt v. Mackenzie , 3 Barb. Ch. 320, 324 (1848); Wetmore v. Scovell , 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813).

31. Woolsey v. Judd , 4 Duer. 379, 404 (1855). "It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property, possesses such a right of property in them, that they cannot be published without his consent, unless the purpose of justice, civil or criminal, require the publication." Sir Samuel Romilly, arg., in Gee v. Pritchard , 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d ed., §1012, contra.

32. "But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt had probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interest of feeling, and to describe a substantial right of legal interest." Curtis on Copyright , pp. 93, 94.

The resemblance of the right to prevent publication of an unpublished manuscript to the well recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.

"There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, he seized by his creditors as property. McLean, J., in Bartlett v. Crittenden , 5 McLean 32, 37 (1839).

It has also been held that even where the sender's rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre v. Higbee , 22 How. Pr. (N.Y.) 198 (1861).

"The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived -- proprius -- is 'one's own.' " Drone on Copyright , p. 6.

It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal.

33. "Such then being, as I believe, the nature and the foundation of the common law as to manuscripts independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an analogous manner, there must, I suppose, be a title to analogous protection or redress." Knight Bruce, B.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 696.

34. "The question, therefore, is whether a photographer who has been employed by a customer to take his or her portrait is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertisement or otherwise, without the authority of such customer, either express or implied. I say 'express or implied,' because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative, that the photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney from making known his client's affairs, learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. In my opinion the case of the photographer comes within the principles upon which both these classes of cases depend. The object for which he is employed and paid is to supply his customer with the required number of printed photographs of a given subject. For this purpose the negative is taken by the photographer on glass; and from this negative copies can be printed in much larger numbers than are generally required by the customer. The customer who sits for the negative thus puts the power of reproducing the object in the hands of the photographer; and in my opinion the photographer who uses the negative to produce other copies for his own use, without authority, is abusing the power confidentially placed in his hands merely for the purpose of supplying the customer; and, further, I hold that the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only." Referring to the opinions delivered in Tuck v. Priester , 10 Q.B.D. 639, the learned Justice continued: "Then Lord Justice Lindley says: 'I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and, in my judgment, clearly entitled the plaintiffs to an injunction whether they have a copyright in the picture or not.' That case is the more noticeable, as the contract was in writing; and yet, it was held to be an implied condition that the defendant should not make any copies for himself. The phrase 'a gross breach of faith' used by Lord Justice Lindley in that case applies with equal force to the present, when a lady's feelings are shocked by finding that the photographer who was employed to take her likeness for her own use is publicly exhibiting and selling copies thereof." North, J., in Pollard v. Photographic Co. , 40 Ch.D. 345, 349-352 (1888).

"It may be said also that the cases to which I have referred are all cases in which there was some right of property infringed, based upon the recognition by the law of protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the person for or on whose behalf the same shall have been made or executed.

"The result is that in the present case the copyright in the photograph is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be entitled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common law right of action against the defendant for his breach of contract and breach of faith. This is quite clear from the cases of Morison v. Moat [9 Hare 241] and Tuck v. Priester [19 Q.B.D. 629] already referred to, in which latter case the same act of Parliament was in question." Per North, J., ibid., p. 352.

This language suggests that the property right in photographs or portraits may be one created by statute, which would not exist in the absence of registration; but it is submitted that it must eventually be held here, as it has been in the similar cases, that the statute provision becomes applicable only when there is a publication, and that before the act of registering there is property in the thing upon which the statute is to operate.

35. Duke of Queensberry v. Shabbeare , 2 Eden 329; Murray v. Heath , 1 B. & Ad. 804; Tuck v. Priester , 19 Q.B.D. 629.

36. See Mr. Justice Story in Folsom v. Marsh , 2 Story 100, 111 (1841):

"If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and a fortiori , if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. . . . The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. A fortiori , third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."

37. "The receiver of a letter is not a bailee, nor does he stand in a character analogous to that of a bailee. There is no right to possession, present or future, in the writer. The only right to be enforced against the holder is a right to prevent publication, not to require the manuscript from the holder in order to a publication of himself." Per Hon. Joel Parker, quoted in Grigsby v. Breckenridge , 2 Bush 480, 489 (1867).

38. In Morison v. Moat , 9 Hare 241, 255 (1851), a suit for an injunction to restrain the use of a secret medical compound, Sir George James Turner, V.C., said: "That the court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence -- meaning, as I conceive, that the court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it."

39. A similar growth of the law showing the development of contractual rights into rights of property is found in the law of good-will. There are indications, as early as the Year Books, of traders endeavoring to secure to themselves by contract the advantages now designated by the term "good-will," but it was not until 1743 that good-will received legal recognition as property apart from the personal covenants of the traders. See Allan on Goodwill , pp. 2, 3.

40. The application of an existing principle to a new state of facts is not judicial legislation. To call it such is to assert that the existing body of law consists practically of the statutes and decided cases, and to deny that the principles (of which these cases are ordinarily said to be evidence) exist at all. It is not the application of an existing principle to new cases, but the introduction of a new principle, which is properly termed judicial legislation.

But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever-changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.

"I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature." 1 Austin's Jurisprudence , p. 224.

The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule.

41. Loi Relative á la Presse . 11 Mai 1868.

"II. Toute publication dans un écrit périodique relative á un fait de la vie privée constitue une contravention punie d'un amende de cinq cent francs.

"La poursuite ne pourra être exercée que sur la plainte de la partie intéressée."

Rivière, Codes Français et Lois Usuelles , App. Code Pen., p. 20.

42. See Campbell v. Spottiswoode , 3 B. & S. 769, 776; Henwood v. Harrison , L.R. 7 C.P. 606; Gott v. Pulsifer , 122 Mass. 235.

43. "Nos moeurs n'admettent pas la prétention d'enlever aux investigations de la publicité les actes qui relèvent de la vie publique, et ce dernier mot ne doit pas être restreint à la vie officielle ou à celle du fonctionnaire. Tout homme qui appelle sur lui l'attention ou les regards du publique, soit par une mission qu'il a reçue ou qu'il se donne, soit par le rôle qu'il s'attribue dans l'industrie, les arts, le theâtre, etc., ne peut plus invoquer contre la critique ou l'exposé de sa conduite d'autre protection que les lois qui repriment la diffamation et l'injure." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pen., 20 n(b).

44. "Celui-la seul a droit au silence absolu qui n'a pas espressément ou indirectment provoqué ou authorisé l'attention, l'approbation ou le blâme." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pén., 20 n(b).

The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not entitled to the "silence absolu " which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection.

45. Wason v. Walters , L.R. 4 Q.B. 73; Smith v. Higgins , 16 Gray 251; Barrows v. Bell , 7 Gray 331.

46. This limitation upon the right to prevent the publication of private letters was recognized early:--

"But consistently with the right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom v. Marsh , 2 Story 100, 110, 111 (1841).

The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright , pp. 136-139.

47. Townshend on Slander and Libel , 4th ed., §18; Odgers on Libel and Slander , 2d ed., p. 3.

48. "But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to be immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The Rights of the Citizen: to His Reputation." Scribner's Magazine , July, 1890, p. 66.

Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange , 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.

49. See Drone on Copyright , pp. 121, 289, 290.

50. Compare the French law.

En probitant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur la vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pen., 20 n(a).

51. Comp. Drone on Copyright , p. 107.

52. Comp. High on Injunctions , 3d ed., §1015; Townshend on Libel and Slander , 4th ed., §§417a-417d.

53. The following draft of a bill has been prepared by William H. Dunbar, Esq., of the Boston bar, as a suggestion for possible legislation:

"Section 1. Whoever publishes in any newspaper, journal, magazine, or other periodical publication any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement or any statement concerning him, shall be punished by imprisonment in the State prison not exceeding five years, or by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars; provided, that no statement concerning the conduct of any person in, or the qualifications of any person for, a public office or position which such person holds, has held, or is seeking to obtain, or for which such person is at the time of such publication a candidate, or for which he or she is then suggested as a candidate, and no statement of or concerning the acts of any person in his or her business, profession, or calling, and no statement concerning any person in relation to a position, profession, business, or calling, bringing such person prominently before the public, or in relation to the qualifications for such a position, business, profession, or calling of any person prominent or seeking prominence before the public, and no statement relating to any act done by any person in a public place, nor any other statement of matter which is of public and general interest, shall be deemed a statement concerning the private life or affairs of such person within the meaning of this act.

"Section 2. It shall not be a defence to any criminal prosecution brought under Section 1 of this act that the statement complained of is true, or that such statement was published without a malicious intention; but no person shall be liable to punishment for any statement published under such circumstances that if it were defamatory the publication thereof would be privileged."

University of Louisville

2301 South Third Street

Louisville, Kentucky 40208

Regular Hours

Mon-Thur. 8am - 6pm (6pm - 9pm law student hours)

Fri. 8am - 6pm

Sat. 9am - 6pm

Sun. (1pm - 9pm law student hours)

tel 502.852.0729

fax 502.852.8906

[email protected]

Quick Links

Law Library News Blog

Law Library Intranet

Law Library FAQs

Visitor Parking

Social Media

right to privacy

Primary tabs.

There is a long and evolving history regarding the right to privacy in the United States. In the context of American jurisprudence , the Supreme Court first recognized the “right to privacy” in Griswold v. Connecticut (1965). Before Griswold , however, Louis Brandeis (prior to becoming a Supreme Court Justice) co-authored a Harvard Law Review article titled " The Right to Privacy ," in which he advocated for the "right to be let alone."

Griswold and the Penumbras

In Griswold , the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First , Third , Fourth , Fifth , and Ninth Amendments to find that there is an implied right to privacy in the Constitution . The Court found that when one takes the penumbras together, the Constitution creates a “ zone of privacy. ” The right to privacy established in Griswold was then narrowly used to find a right to privacy for married couples, regarding the right to purchase contraceptives.

Justice Harlan's Concurrence in Griswold

Additionally, it is important to note Justice Harlan's concurring opinion in Griswold , which found a right to privacy derived from the Fourteenth Amendment . In his concurrence, he relies upon the rationale in his dissenting opinion in Poe v. Ullman (1961). In that opinion, he wrote, "I consider that this Connecticut legislation, as construed to apply to these appellants , violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life."

In privacy cases post- Griswold , the Supreme Court typically has chosen to rely upon Justice Harlan's concurrence rather than Justice Douglas's majority opinion. Eisenstadt v Baird (1971), R oe v. Wade (1973) and Lawrence v. Texas (2003) are some of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras.

Extending the Right to Privacy

In Eisenstadt , the Supreme Court decided to extend the right to purchase contraceptives to unmarried couples. More importantly, however, the Court found that "the constitutionally protected right of privacy inheres in the individual, not the marital couple."

In Lawrence , the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in . . . sexual conduct." Relying upon the Fourteenth Amendment's guarantee of due process , the Court held: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime . Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Roe’s Overturning

When the Supreme Court first decided Roe v. Wade , the Court used the right to privacy, as derived from the Fourteenth Amendment, and extended the right to encompass an individual’s right to have an abortion: "This right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy." However, after the decision in Dobbs v. Jackson Women's Health Organization (2022) , the Court overturned both Roe and Casey . Consequently, the right to abortion no longer falls under the broader right to privacy. Additionally, the Dobbs opinion mentioned potentially examining Griswold and Eisenstadt in the future. While it is unclear to what extent that may have on the right to privacy in the current time; it is likely that the case law around this right will continue to evolve with more recent Supreme Court decisions.

Menu of Additional Resources

Federal material.

Fourth Amendment: Search and Seizure
First Amendment: Invasion of Privacy

Federal Judicial Decisions

Recent Right of Privacy Decisions

State Material

State Judicial Decisions

Commentary from liibulletin-ny
Search N.Y. Court of Appeals Decisions
Appellate Decisions from Other States

Other References and Resources

American Library Association
Richard Turkington & Allen-Castellitto; Privacy Law:Cases & Materials , West Group (2002)
J. Thomas McCarthy; The Rights of Publicity And Privacy , West Group (2005)
Anupam Chander, Lauren Gelman & Margaret Jane Radin; Securing Privacy in the Digital Age , Stanford University Press (2008)

[Last updated in June of 2022 by the Wex Definitions Team ]

civil rights
the Constitution
LIFE EVENTS
family & personal matters
gender, sexuality, and reproductive rights
THE LEGAL PROCESS
constitutional law
courts and procedure
individual rights
legal education and practice
wex articles
wex definitions

10 Reasons Why Privacy Rights are Important

The right to privacy is a enshrined in article 12 of the Universal Declaration of Human Rights (UDHR), article 17 in the legally binding International Covenant on Civil and Political Rights (ICCPR) and in article 16 of the Convention of the Rights of the Child (CRC). Many national constitutions and human rights documents mention the right to privacy. In the US Constitution, it isn’t explicitly stated, but experts infer it from several amendments, including the Fourth Amendment. It outlines that people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In many cases, the US Supreme Court has upheld the right to privacy. There are also many privacy laws designed to protect personal data from the government and corporations. The rise of the internet has complicated privacy laws and many believe that the law has fallen behind. In the United States, there is no central federal privacy law. The right to privacy also intersects with many other human rights such as freedom of expression, the right to seek, receive and impart information and freedom of association and assembly.

Why do privacy rights matter so much? Here are 10 reasons why:

#1. Privacy rights prevent the government from spying on people (without cause)

The government has a responsibility to protect its citizens, but it often crosses the line when it comes to surveillance. In 2013, Edward Snowden blew the whistle on the NSA’s spying program, bringing the issue of privacy into the spotlight. The balancing act between national security, freedom of expression, surveillance and privacy rights is tricky. It’s generally agreed upon that if the government doesn’t have a reason to spy on someone, it shouldn’t. No one wants to live in a Big Brother state.

#2. Privacy rights keep groups from using personal data for their own goals

When in the wrong hands, personal information can be wielded as a powerful tool. The Cambridge Analytica scandal is a perfect example of this. This organization used data taken from Facebook (without user consent) to influence voters with political ads. Privacy rights mean that groups can’t take your data without your knowledge/consent and use it for their own goals. In a time where technology companies like Facebook, Amazon, Google, and others collect and store personal information, privacy rights preventing them from using the data how they please are very important.

#3. Privacy rights help ensure those who steal or misuse data are held accountable

When privacy is recognized as a basic human right, there are consequences for those who disrespect it. While there are many “soft” examples of personal data use, like targeted ads, established privacy rights draw a line in the sand. Without these restrictions, corporations and governments are more likely to steal and misuse data without consequence. Privacy laws are necessary for the protection of privacy rights.

#4. Privacy rights help maintain social boundaries

Everyone has things they don’t want certain people to know. Having the right to establish boundaries is important for healthy relationships and careers. In the past, putting up boundaries simply meant choosing to not talk about specific topics. Today, the amount of personal information kept online makes the process more complicated. Social media can reveal a lot of information we don’t want certain people (or strangers) to know. Media platforms are obligated to offer security features. Having control over who knows what gives us peace of mind.

#5. Privacy rights help build trust

In all relationships, trust is essential . When it comes to the personal data given to a doctor or a bank , people need to feel confident that the information is safe. Respecting privacy rights builds up that confidence. Privacy rights also give a person confidence that if the other party breaks that trust, there will be consequences.

#6. Privacy rights ensure we have control over our data

If it’s your data, you should have control over it. Privacy rights dictate that your data can only be used in ways you agree to and that you can access any information about yourself. If you didn’t have this control, you would feel helpless. It would also make you very vulnerable to more powerful forces in society. Privacy rights put you in the driver’s seat of your own life.

#7. Privacy rights protect freedom of speech and thought

If privacy rights weren’t established, everything you do could be monitored. That means certain thoughts and expressions could be given a negative label. You could be tracked based on your personal opinions about anything. If privacy rights didn’t let you keep your work and home life separate, “thought crimes” or what you say off the clock could get you in trouble. Privacy rights protect your ability to think and say what you want without fear of an all-seeing eye.

#8. Privacy rights let you engage freely in politics

There’s a reason that casting your vote is done confidentially. You are also not required to tell anyone who you voted for. Privacy rights let you follow your own opinion on politics without anyone else seeing. This is important in families with differing worldviews. It also protects you from losing your job because of your political leanings. While you can’t control what people think about you because of your views, you do have the right to not share more than you’re comfortable with.

#9. Privacy rights protect reputations

We’ve all posted something online that we regret or done something foolish. It can come back to haunt us and ruin our reputations. Privacy rights help protect us and can give us the power to get certain information removed. The EU specifically addresses this with the “ right to be forgotten ” law. This lets people remove private information from internet searches under some circumstances by filing a request . Revenge porn, which is a violation of privacy, is a big example of personal data that can destroy a person’s reputation.

#10. Privacy rights protect your finances

Companies that store personal data should protect that information because of privacy rights. When companies fail to make security a priority, it can have devastating consequences. You can have your identity stolen, credit card numbers revealed, and so on. When you give your financial information to a specific entity, you are trusting them to respect your privacy rights.

Take a free course on privacy rights by top universities!

16 Inspiring Civil Rights Leaders You Should Know

15 Trusted Charities Fighting for Housing Rights

15 Examples of Gender Inequality in Everyday Life

11 Approaches to Alleviate World Hunger

15 Facts About Malala Yousafzai

12 Ways Poverty Affects Society

15 Great Charities to Donate to in 2024

15 Quotes Exposing Injustice in Society

14 Trusted Charities Helping Civilians in Palestine

The Great Migration: History, Causes and Facts

Social Change 101: Meaning, Examples, Learning Opportunities

Rosa Parks: Biography, Quotes, Impact

About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

Search Menu
Advance articles
Editor's Choice
Author Guidelines
Reviewer Guidelines
Submission Site
Open Access
About Journal of Human Rights Practice
Editorial Board
Advertising and Corporate Services
Journals Career Network
Self-Archiving Policy
Dispatch Dates
Journals on Oxford Academic
Books on Oxford Academic

Article Contents

Introduction, resistance is futile: challenging surveillance in the new national security paradigm 2001−2013, privacy in the limelight at the united nations, courting privacy—the role of public interest litigation in addressing privacy and surveillance, the way ahead, table of cases.

< Previous

The Right to Privacy in the Digital Age

Article contents
Figures & tables
Supplementary Data

Carly Nyst, Tomaso Falchetta, The Right to Privacy in the Digital Age, Journal of Human Rights Practice , Volume 9, Issue 1, February 2017, Pages 104–118, https://doi.org/10.1093/jhuman/huw026

Permissions Icon Permissions

Recent years have seen the right to privacy, particularly as it pertains to the surveillance and interception of communications, transform from a much-neglected human rights issue to the focus of multiple UN General Assembly and Human Rights Council resolutions. Since March 2015, it has been the subject of a dedicated United Nations special procedures mandate. This policy note seeks to chart the long overdue and rapid progress of the right to privacy to the top of the agendas of regional and international human rights mechanisms. In particular, the note records the role of civil society in supporting the right to privacy’s recent promotion. It identifies the status of norm development around surveillance issues and outlines the major unresolved questions confronting human rights mechanisms for the future.

Despite being a stalwart of the major international and regional human rights treaties, the right to privacy was largely neglected by United Nations human rights mechanisms for the period between the publication of the Human Rights Committee’s General Comment 16 in 1989 and a report of the Special Rapporteur on counter-terrorism and human rights in 2009—followed by another report by the Special Rapporteur on freedom of expression and opinion in June 2013. In the aftermath of these reports, and with the publication of documents leaked by National Security Agency (NSA) whistle-blower Edward Snowden, there has been a renewed interest in and focus on the right to privacy ‘in the digital age’, a euphemistic term which emerged to encapsulate the relationship between privacy, surveillance and the protection of personal data—particularly in the context of digital technologies and the internet. The last three years has seen three UN General Assembly resolutions, numerous thematic reports by UN special procedures, a report of the UN High Commissioner for Human Rights and two resolutions by the UN Human Rights Council addressing the right to privacy in the digital age. The UN Human Rights Committee has also significantly increased its attention to the right to privacy, as evidenced by a spate of concluding observations on states’ periodic reports which reference privacy-related issues. Motivated by the political will of states such as Brazil and Germany, and supported by strong civil society advocacy and litigation efforts, in March 2015 the UN Human Rights Council established a Special Rapporteur on the right to privacy ( UN Human Rights Council 2015 ). The current mandate holder, Professor Joseph Cannataci, presented his first report to the Council in March 2016 ( UN Human Rights Council 2016 ).

This policy note documents the emergence of ‘the right to privacy in the digital age’ discourse from the perspective of the human rights practitioners whose advocacy efforts have supported it. The note begins by recounting the establishment in 2012−2013 of a civil society-led soft law initiative, the International Principles on the Application of Human Rights to Communications Surveillance. It then follows the discourse through the Snowden revelations and UN General Assembly and Human Rights Council resolutions, briefly documenting some of the human rights litigation which took place alongside them. The note concludes with some reflection on the emerging normative challenges in this field and the role civil society advocates can play.

We posit that the rapid elevation of the right to privacy over the past three years would not have occurred without two key elements: the political will, created by the Snowden revelations, on the part of Germany and Brazil; and the presence of a robust and expert civil society constituency. That constituency has sought to achieve consensus on key normative issues—notably, the inherent disproportionality of mass surveillance; the bulk retention or acquisition of metadata (that is, data about a communication, such as its date, time, and duration); and the requirement for prior judicial authorization of surveillance measures. Through strategically aligned advocacy strategies, including the promotion of soft law principles and the institution of mutually reinforcing human rights litigation in American and European courts, civil society organizations have been highly effective in influencing the evolving discourse on the right to privacy in the digital age. Despite this, a number of normative challenges remain, as state laws and practice continue to depart from international standards, and domestic courts resist the more progressive interpretations of privacy adopted by regional courts.

In the previous century, as communication technologies such as the telegram, the telephone, and the mobile phone emerged, so too did government capabilities to intercept and monitor communications. While expanding state surveillance powers were often curtailed by national courts, the European Court of Human Rights addressed the relationship between surveillance and the right to privacy in a number of cases arising out of Germany and the UK throughout the 1980s and 1990s. However, the UN and its human rights mechanisms did not elaborate at any length on the human rights standards applicable to communications surveillance. With the birth of the internet, and the dramatic expansion both of the possibilities for communication and of the possibilities for state surveillance, there existed little in the way of international norms or standards applicable to government monitoring of private communications, save for the protections of the International Covenant on Civil and Political Rights (ICCPR).

As technologies advanced and the internet expanded, states around the world began expanding their legal authority and technical capacity to conduct surveillance and interception of communications. With the attacks of September 2001 in the USA, states were given new impetus and legitimacy to do so under the guise of defending against national security threats. As the availability and capabilities of digital technologies have expanded rapidly, states have easily intruded into the online realm, manipulating relationships with the private sector; mandating corporate collaboration; and exploiting vulnerabilities in technologies and gaps in outdated legal frameworks. Existing intelligence alliances and capabilities, originally deployed for military and foreign espionage efforts, have shifted focus to domestic security. The ‘war on terror’ narrative, so deeply grounded in an understanding of the dispersed nature of the terrorist threat, has facilitated a new national security paradigm in which national security protection increasingly resembles law enforcement, and vice versa.

The possibilities for communications surveillance, formerly a time- and resource- intensive task, expanded exponentially as an increasingly large share of communications (phone, text, email and internet) were transmitted digitally via fibre-optic cable. The interception of these communications became possible and affordable through technological developments. Surveillance capabilities such as voice and text analysis, which previously would have required excessive human and financial resources, became achievable through the deployment of computer analysis programs. Location tracking became a simple act of analysing the cell tower data generated by every person who carries a mobile phone. The costs of data storage rapidly declined as data processing power advanced at unimagined speeds—and the ability to deploy ‘big data’ analyses and to derive intelligence from metadata emerged.

Many of these developments occurred away from public scrutiny, but others were met with staunch resistance by civil society actors, particularly the digital rights activists with strong links to the community of technologists and engineers responsible for developing and maintaining internet infrastructure. The adoption of the European Data Retention Directive in 2006 created mandatory obligations for the retention of telecommunications metadata. The adoption of the Foreign Intelligence Surveillance Amendments Act in 2008 in the USA dramatically expanded the circumstances under which electronic surveillance could be conducted by the National Security Agency. Both of these developments drew criticism and action by civil society. Some of the first challenges to the mass surveillance, acquisition, and retention of communications were launched by organizations such as Liberty, in Liberty v. United Kingdom in 1999; Amnesty International and the American Civil Liberties Union in Clapper v. Amnesty International USA in 2008; and the Electronic Frontier Foundation in Jewel v. National Security Agency in 2008.

However, many of the efforts to inhibit and bring public scrutiny to the expansion of surveillance powers during this time were frustrated by the inability of civil society organizations to meet standing or evidentiary requirements. Broadly worded legislation gave no accurate indication of the true scope and reach of communications interception activities, many of which were taking place behind the veil of secrecy provided by national security justifications in the post-9/11 world. Even as reports emerged in 2011 of the use of mass surveillance technologies by repressive regimes in Egypt, Libya and Tunisia, democratic Western governments refused to place their own surveillance regimes under meaningful public scrutiny. Meanwhile, the centrality of digital technologies to human rights movements in those same countries during the Arab Spring revolutions brought into sharp relief for human rights defenders, journalists and protesters the critical importance of securing communications from unlawful government interference.

The emergence of drone technology for use in targeted killings in Afghanistan, Pakistan and Yemen, as part of the ‘global war on terror’, also served to highlight the unique cross-border and extraterritorial nature of digital surveillance. Advancements in ‘signals intelligence’ capabilities saw the development of intelligence sharing arrangements which enabled states to provide each other with access to data which could not be legally or technically acquired directly. Such data included location data which assisted the USA in geo-locating potential drone targets abroad.

Sensing the worsening environment for transparency around state surveillance, and having had some litigation efforts frustrated, civil society organizations, digital activists and technologists convened in Brussels in October 2012 at the behest of British-based NGO Privacy International. Privacy International was then engaged in advocacy around Britain’s Draft Communications Data Bill. This proposed legislation—which was ultimately defeated—would have dramatically expanded the UK’s surveillance powers by enabling the installation of black boxes on communications services providers’ networks to generate and retain metadata on the use of websites and third party services ( Privacy International 2012 ). Privacy International convened the meeting with funds provided by Google, which was also engaged in the UK legislative process. Meeting attendees Access and the Electronic Frontier Foundation, along with the Canadian Internet Policy and Public Interest Clinic (CIPPIC), Derechos Digitales Chile, the Centre for Internet Society−India, and the Centre for Democracy and Technology later formed a drafting committee to turn the outcome of the meeting into a set of agreed human rights standards applicable to communications surveillance. The Necessary and Proportionate Principles, a soft law standard, were finalized in early 2013, and launched officially with more than 400 supporting organizations in September 2013 ( the Necessary and Proportionate Principles 2013 ).

Yet it was another event in 2013 that catalysed the genuine momentum towards reform of human rights standards applicable to surveillance: the publication of documents leaked by NSA whistle-blower Edward Snowden, which began on 8 June 2013. This unforeseen development had the impact of catapulting the right to privacy to the top of the agenda of UN human rights mechanisms, and creating the political will necessary to garner greater attention to the human rights standards applicable to privacy.

The implications of modern forms of communications surveillance for the right to privacy had received scant attention at the UN prior to 2013. In 2009 the UN Special Rapporteur on counter-terrorism and human rights, Martin Scheinin, dedicated his annual report to the implications of counter-terrorism measures for the right to privacy, and began mapping some of the legal and policy issues arising from new forms of surveillance ( UN Human Rights Council 2009 ). Then, in 2013, the Special Rapporteur on freedom of expression, Frank La Rue, published a landmark report detailing the use of state surveillance of communications and how it affects and violates the rights to freedom of expression and privacy ( UN Human Rights Council 2013 ).

But it was only after the Snowden revelations that states began to pay attention to the human rights implications of modern communications surveillance. At the UN Human Rights Council’s 24th session in September 2013, concerns about privacy and freedom of expression were raised in plenary and during a side event convened by Privacy International and hosted by the missions of Brazil, Germany, Liechtenstein, Norway, Switzerland, Austria, Hungary, and Mexico. The political momentum gained in Geneva led Brazil and Germany, supported by a core group of governments (Austria, Liechtenstein, Mexico, Norway, and Switzerland), to present a draft resolution at the UN General Assembly. The resolution on the right to privacy in the digital age, adopted by consensus on 18 December 2013, was the first major statement by the UN on the right to privacy and surveillance, reaffirming the human rights standards that should apply to interception of communications and collection of personal data ( UN General Assembly 2013 ).

The resolution proved a significant catalyst for UN activities on privacy and surveillance, most notably by mandating the UN High Commissioner for Human Rights to draft a report on the right to privacy ‘in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale’.

In June 2014, after consultation with stakeholders, the outgoing UN High Commissioner for Human Rights, Navi Pillay, released her report on the right to privacy in the digital age ( UN Human Rights Council 2014 ). As the first detailed assessment of the human rights issues implicated by the then-recent revelations of state surveillance practices, the High Commissioner’s report represents an important contribution and contains a number of bold conclusions. Based on a thorough analysis of the jurisprudence of human rights bodies and courts (and taking into account the contributions of numerous human rights and digital rights organizations), the report clarifies that interference with privacy begins with the capture of communications, and even with the mere possibility of a communication being captured. The report states that the distinction between the content of communications and metadata is obsolete and irrelevant in the context of modern forms of communications; and that establishing whether an interference with privacy is ‘arbitrary’ or ‘unlawful’ requires the application of the principles of legality, necessity and proportionality, as previously developed in international human rights law. Further, the report establishes that, for the purpose of jurisdiction, states’ human rights obligations are engaged when the state exercises control over the digital communications infrastructure, such as when they directly tap internet cables, or when they have jurisdiction over a third party that holds the data, such as over private companies holding personal data.

As one of the major contributions by UN human rights mechanisms on how the right to privacy applies in the digital age, the report is increasingly seen as the yardstick against which to assess states’ compliance with their human rights obligations in the context of surveillance. Its conclusions are extensively referred to in subsequent reports of UN Special Rapporteurs covering, within their respective mandates, the implications of surveillance laws and practices for human rights (see UN General Assembly 2014a ).

Following the UN High Commissioner’s report, in 2014 the UN General Assembly adopted a second resolution on the right to privacy in the digital age, building on the previous one ( UN General Assembly 2014b ). Negotiations around the draft resolution—again spearheaded by Brazil and Germany—saw some governments, most notably those which were part of the Five Eyes alliance (USA, UK, Australia, Canada and New Zealand) opposed to some proposed wording, particularly around metadata, extraterritoriality and the scope of ‘unlawful’ or ‘arbitrary’ interference.

The adopted text inevitably reflects some necessary compromises on these issues. However, overall the resolution represents a further advance in the understanding (shared amongst all UN member states) of the human rights standards applicable to digital surveillance. In particular, the resolution notes how domestic laws regulating surveillance of digital communications must be publicly accessible, clear, precise, comprehensive and non-discriminatory. This clearly puts the burden on states to review their legislation on surveillance and ensure its compliance with international human rights standards. Further, the resolution states that states must respect individuals’ right to privacy, including when states require disclosure of personal data from companies. Again, this represents a significant statement in light of the existence of common practices whereby states regularly seek access to data held by large internet companies and social networks.

The proponents of the resolution intended to keep these issues firmly on the UN agenda. In order to achieve this, the resolution contained a recommendation addressed to the Human Rights Council to consider the ‘establishment of a special procedure’ on the right to privacy.

At the Council, the debate shifted to the scope of the mandate of the Special Rapporteur. In advance of the 28th session of the Council in March 2015, a group of NGOs, coordinated by Privacy International, developed a set of recommendations on the mandate of a Special Rapporteur on the right to privacy, calling for the establishment of a broad mandate to cover all aspects pertaining to the right to privacy and to provide the mandate holder with the full range of functions of other UN special procedures, including the ability to report on violations ( APC et al. 2015 ).

Negotiations centred on how much emphasis the mandate should place on digital surveillance. The text adopted by consensus gives the Special Rapporteur a broad mandate on the right to privacy, defined with reference to Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. The text also takes into account the challenges arising in the digital age, including by inviting the Rapporteur ‘to include in the first report considerations that the mandate holder finds relevant to address the right to privacy in the digital age’ ( UN Human Rights Council 2015 ).

In June 2015, the President of the UN Human Rights Council appointed Professor Joseph Cannataci as the first mandate holder. Early in the selection process, some NGOs published a checklist of qualifications and experience relevant to the selection and appointment of the Special Rapporteur ( Privacy International et al. 2015 ). The Special Rapporteur presented his first report at the 31st session of the Council in March 2016. The report outlines the main priorities of the Special Rapporteur, including a set of thematic issues, ranging from security and surveillance to the role and responsibilities of companies to protect personal data ( UN Human Rights Council 2016 ). The Special Rapporteur also presented his first report to the General Assembly at the 71st regular session on 24 October 2016 ( UN General Assembly 2016 ).

The initiatives of Brazil and Germany both at the UN General Assembly and at the UN Human Rights Council succeeded in putting the right to privacy firmly on the UN agenda and, with the establishment of the Special Rapporteur mandate, in closing a significant gap in the institutional human rights protection framework. The Special Rapporteur is expected to play a critical role in developing a substantive interpretation of the right to privacy in the digital age. He will also respond to reports of alleged violations and monitor and publicly report, in a systematic way, on states’ implementation of their international obligations in relation to the right to privacy.

Meanwhile, the Human Rights Committee is increasing its scrutiny of states parties’ surveillance laws, policies and practices for compliance with Article 17 of the ICCPR. The recommendations of the Committee are consistent in demanding that the right to privacy is respected regardless of the nationality or location of individuals whose communications are under surveillance; and that there should be judicial involvement in the authorization of surveillance measures, including regarding the acquisition of metadata (see concluding observations on Canada ( UN Human Rights Committee 2015b ), France (2015c) , the former Yugoslav Republic of Macedonia (2015d) , Namibia (2016a) , New Zealand (2016b) , Rwanda (2016c) , South Africa (2016d) , Sweden (2016e) , the USA (2014) , and the UK (2015e) ). Further, the Committee has begun addressing concerns on specific surveillance capabilities, such as indiscriminate collection of mobile phone data through the use of ‘base station investigations’ (also known as IMSI catchers or stingrays) ( UN Human Rights Committee 2015a ). The Committee has developed a significant amount of ‘jurisprudence’ that, given the current need for interpretation and guidance on this issue, could form the basis for a revised General Comment on Article 17, updating its 1988 General Comment No. 16 ( ACLU 2014 ).

The Snowden revelations have given rise to many new pieces of public interest litigation, while also reinvigorating or adding new context to ongoing litigation related to surveillance. Civil society organizations and privacy activists have played a key role in instituting and driving public interest litigation designed to unravel the revealed surveillance programmes. They have also pursued a larger aim—to propel the development and clarification of international human rights norms in the context of communications surveillance.

Advancements in human rights and constitutional law jurisprudence in this field over the past three years primarily relate to three major issues: the legality of bulk data collection and retention; the legality of mass surveillance; and the need for individualized reasonable suspicion to authorize surveillance measures.

Bulk data collection and retention

Historically, scant judicial or legislative recognition had been given to the interference with privacy created by the acquisition, retention and storage of metadata. Despite robust civil society advocacy and strategic litigation against the European Data Retention Directive, adopted in 2006, national governments and courts (with notable exceptions in Germany and Austria) approved of affording a low or non-existent level of protection to communications metadata, enabling its retention in bulk. In the aftermath of the Snowden revelations, this issue was given renewed attention, and the 2014 UN General Assembly resolution even contained a reference to the issue of metadata, noting that ‘certain types of metadata, when aggregated, can reveal personal information and can give an insight into an individual’s behaviour, social relationships, private preferences and identity’ ( UN General Assembly 2014b ). A number of recent cases in the USA, Canada, the UK, and the Court of Justice of the European Union (CJEU) have challenged the casting of metadata as deserving of lower levels of protection under the right to privacy, and have also connected data retention and the enjoyment of free expression rights.

The seminal CJEU case of Digital Rights Ireland v. Ireland , brought by the Irish NGO Digital Rights Ireland, concerned the validity of the Data Retention Directive 2006/24/EC. This Directive enabled EU member states to mandate the generation and retention of communications data for the purpose of preventing, detecting, investigating and prosecuting serious crimes. In its decision, which served to invalidate the Data Retention Directive, the Grand Chamber noted the dangers of collecting and using personal data in bulk, and concluded that the Directive ‘entails an interference with the fundamental rights of practically the entire European population’.

The invalidation of the Data Retention Directive put in doubt the legal basis in EU member states for requiring the retention of communications data. Various EU member states abandoned data retention powers, while others re-legislated for them. The UK instead enacted the Data Retention and Investigatory Powers Act 2014 (DRIPA), granting the Home Secretary authority to issue orders to communications service providers concerning the mandatory retention of communications data.

[I]f EU law requires independent approval, as we are satisfied it does, that must be put in place. It is not for us to devise the appropriate system. As to the question of what level of consideration should be given to applications involving access to data involving communications with lawyers, Members of Parliament, or journalists, that too is not for us to determine. We only observe that such cases do require special consideration. ( Davis and Others v. Secretary of State for the Home Department : 98)

The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous—by guarding the link between the information and the identity of the person to whom it relates—the user can in large measure be assured that the activity remains private. ( R. v. Spencer : 46)

The fact remains that the indiscriminate, daily bulk collection, long-term retention and analysis of telephony metadata almost certainly violates a person’s reasonable expectation of privacy. ( Klayman v. Obama : p. 26)

Mass surveillance

One of the primary normative battlegrounds in the debate around communications surveillance centres on mass surveillance, or bulk collection of data. Civil society has consistently argued that mass surveillance, because of its indiscriminate, blanket nature, inherently fails to satisfy proportionality requirements. States and intelligence services have contended that bulk collection is in conformity with human rights law provided that sufficient safeguards exist to protect against abuse.

In the view of the Special Rapporteur, the very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy. Shortly put, it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately. The very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis. ( UN General Assembly 2014a : 18)

Mass or ‘bulk’ surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate. ( UN Human Rights Council 2014 : 25)

Prior to Snowden’s revelations, human rights jurisprudence contained only a handful of cases relevant to the question of whether mass surveillance of digital communications can be made compliant with the rights to privacy or free expression. In Weber and Saravia v. Germany , the European Court of Human Rights held that the German ‘strategic monitoring’ system, through which Germany carries out the untargeted surveillance of individuals’ communications, was lawful because the legal framework contained strict minimum safeguards designed to avoid abuses of power. 1 The Court counterbalanced the intrusion into the right to privacy constituted by ‘strategic monitoring’ against the strict safeguards put in place by the German law, and found that with the benefit of a wide margin of appreciation in the context of national security matters, the German government had satisfied the requirements of proportionality in the case of strategic surveillance.

With this precedent to hand, in the case of Liberty and Others v. GCHQ , the UK’s Investigatory Powers Tribunal, a specially constituted court charged with arbitrating complaints against the intelligence and police services, considered a challenge to the UK’s mass surveillance practices. This was brought by British NGOs Liberty, Privacy International and Amnesty International, along with a number of other NGOs including the American Civil Liberties Union and a Pakistani digital rights organization, Bytes for All. In the face of the UK authorities’ refusal to confirm or deny the allegations against them by reference to claims to national security privileges, the case was heard on hypothetical facts and partly in closed hearings from which the claimants were excluded. The court concluded that UK law does permit the type of mass surveillance complained of by the claimants, and that the law is compliant with the standards set out in Weber. The court declined to adjudicate the proportionality of the mass surveillance system, nor did they engage with the facts alleged by the claimants, which establish a reach and scope of mass surveillance far beyond that complained of in Weber .

The decision is the subject of an application to the European Court of Human Rights, alongside separate parallel applications brought by civil society organizations, Big Brother Watch, English PEN and Open Rights Group v. United Kingdom , and The Bureau of Investigative Journalism v. United Kingdom . In addition, a further case has been filed, in October 2015, by the French Association de la Press Judiciaire. This application arises out of the French intelligence law (Law No. 2015-912) adopted on 24 July 2015, which, inter alia, extended the bulk collection and other surveillance powers of the French intelligence and security agencies.

In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter. ( Maximillian Schrems v. Data Protection Commissioner : 94) (citations omitted)

The requirement of reasonable suspicion is further bolstered by the Grand Chamber’s finding in Zakharov that the interception authorization (for example, the court order or warrant) ‘must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information’ ( Zakharov v. Russia : 264). These findings were made in the context of a case which concerned a different type of surveillance from that revealed by the Snowden revelations. But any suggestion that they were made in ignorance of the technical manifestations of mass surveillance should be discounted; the oral argument in the case took place in September 2014, at a time when the Court had already indicated its intention to accord priority to cases arising out of the Snowden revelations. Indeed, the Court referenced such forthcoming cases in the fact sheet it issued after the Zakharov judgment was released. Any remaining doubt is eradicated through an inspection of the multiple references to the Snowden revelations in the judgment itself.

In Szabó and Vissy v. Hungary , a case brought by Hungarian human rights activists prior to the Snowden revelations, the Fourth Section of the European Court similarly stopped short of condemning mass surveillance, the particular facts of the case not warranting such an analysis. Nevertheless, the Court opined at length on the dangers posed by new surveillance technologies. It also called into question whether the development of surveillance methods had been accompanied by a simultaneous development of legal safeguards. The Court seemed to rely heavily in this regard on the decisions of the CJEU in Schrems and Digital Rights Ireland as well as the 2013 report on privacy by the UN Special Rapporteur on freedom of expression. The Court concluded that mass surveillance practices may result in ‘particularly invasive interferences with private life’ which warrant an ‘enhance[ment]’ of the guarantees required by the extant Convention case law on the interception of communications ( Szabó and Vissy v. Hungary : 70).

These two judgments lay hospitable ground for the forthcoming UK cases, which will thrust the question of mass surveillance firmly before the European Court.

As the UN High Commissioner for Human Rights stated in her 2014 report, existing international human rights law provides ‘a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data’ ( UN Human Rights Council 2014 : 47). Applying such standards to the challenges posed by modern communications technologies is likely to remain the focus of NGOs’ engagement at the UN, in regional courts and in national litigation and advocacy.

However, while UN human rights experts and European court judgments are increasingly interpreting existing human rights standards to protect individuals’ privacy against unlawful modern communications surveillance, this increased attention on the laws and practices of intelligence agencies is also having the perverse result of pushing states towards adopting new laws or reforming existing ones in an attempt to legalize their practices which violate the right to privacy.

In this regard, Europe is a particularly telling example: France, the Netherlands, Switzerland, the UK, and Poland have all recently passed laws or introduced bills that significantly expand the surveillance powers of their intelligence and security agencies. Other governments outside Europe have been doing the same, including China, Kenya, and Pakistan ( Privacy International 2016 ).

Beyond mass surveillance, at least two other issues are gaining increased attention: encryption and computer network exploitation. As the UN Special Rapporteur on freedom of expression noted in his 2015 report, encryption and anonymity tools and services can protect and promote human rights online, particularly the right to freedom of expression and the right to privacy. Regulation of encryption remains a key policy issue among governments as they review their surveillance practices and capacity to address emerging threats to national security. Governments have adopted different responses. Recently, officials in Finland, France, the Netherlands, and the USA have all signalled that they will not seek ways to undermine encryption. Other governments have sought powers to limit or weaken encryption. The UK Investigatory Powers Act, adopted in November 2016, seeks to introduce a provision that would allow the government to impose obligations on telecommunications service providers to remove electronic protection, thereby inter alia weakening encryption. The proposal has attracted particular criticisms by companies, as well as NGOs.

Computer network exploitation, or state hacking, poses an increasing threat to the privacy of communications and personal data. Unlike more traditional forms of surveillance, such as targeted requests for users’ data or interception, the deployment of state hacking significantly threatens the privacy and the security of a potentially unlimited number of individuals who use modern forms of communication such as the internet. While some intelligence agencies may have been engaged in hacking for gathering intelligence for quite some time, recently there have been a spate of new laws attempting to legitimize these practices; most strikingly, the UK’s Investigatory Powers Act seeks to authorize both targeted and bulk computer network exploitation.

Encryption and computer network exploitation are human rights challenges which are also closely interrelated: see, by way of illustration, the ‘Apple v. FBI’ case, in which the government sought to compel Apple’s cooperation to exploit a device in order to circumvent encryption, and ultimately procured outside assistance in hacking into Apple’s product (see Lee 2016 ).

Going forward, legal actions and advocacy campaigns in the field of surveillance and privacy are likely to focus on continuing to fight mass surveillance, to protect and promote the use of encryption, and to limit and regulate state hacking. These were among the issues a group of international civil society actors discussed at a meeting in London in July 2015, which focused on the need for strategic advocacy and litigation in order to advance particular normative standards in relation to the field of surveillance and its impact on privacy and freedom of expression.

The meeting revealed a high degree of coalescence of policy positions amongst civil society actors in this field. However, it also raised questions about the potential for divergent views to emerge as to the best strategy to continue to advance human rights protections with regard to surveillance, and the limits of human rights advocacy. It is clear that some actors in this space perceive the ever-widening gap between state practice and human rights as warranting some malleability and compromise on the part of human rights advocates. That is, if limits are to be imposed on state surveillance, such limits may have to fall short of human rights principles and instead respond to the pragmatic realities of the present landscape, including the considerable financial and human resources tied up in state surveillance and intelligence infrastructure; the significant power wielded by intelligence agencies over political interests; and the persuasiveness of national security-driven policy justifications.

This is not a new conundrum for the community of civil society actors working in the field of state surveillance and police powers. In the early 1990s in the USA, for example, NGOs divided over whether to work with the US government to limit the scope and minimize the harm caused by new surveillance powers contained in the Communications Assistance for Law Enforcement Act, or to oppose the extension of powers outright, despite the unlikelihood that complete opposition would succeed. A similar difficult choice exists today for civil society actors. Should they continue to strive through advocacy and litigation for the dismantling of mass surveillance powers, despite the overwhelming political, institutional and societal commitment to such capabilities? Or should they take a ‘principled pragmatic’ approach, working with government and intelligence agencies to minimize the impact of surveillance apparatuses while accepting their premise? Should they oppose all attempts to circumvent encryption, including through forced cooperation of companies like Apple, and accept that the government may find other illicit workarounds, or should they collaborate with the private sector to ensure encryption circumvention orders are made public and their implementation scrutinized? These are some of the difficult strategy decisions faced by civil society in the future.

Meanwhile, international political will supporting further normative development around the right to privacy may appear to be waning. Does this spell the end of the right to privacy’s brief moment in the international spotlight? The authors believe not. Privacy, and all of its embodiments and implications, will continue to be the pre-eminent human rights challenge of the early twenty-first century. Recent events such as the Panama Papers leak (see Harding 2016 ) illustrate the complex relationship between secrecy and power, while also serving as a warning about the permanence and transferability of data in the digital era. The challenge will be to ensure that international and regional human rights mechanisms and civil society organizations have the expertise and capability to remain abreast of continually advancing technologies and their implications for human rights.

‘Safe Harbour’ was the 2000 European Commission decision to regulate the way that US companies export and handle the personal data of EU citizens.

At paragraph 95, the Court reiterated those safeguards that should be set out in statute law in order to avoid abuses of power: ‘the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed’ (citations omitted).

American Civil Liberties Union (ACLU) . 2014 . Privacy Rights in the Digital Age: A proposal for a New General Comment on the Right to Privacy under Article 17 of the ICCPR.

Association for Progressive Communications (APC) and other NGOs . 2015 . Call to Establish a UN Special Rapporteur on the Right to Privacy. Joint written statement to the UN Human Rights Council. A/HRC/28/NGO/13.

Harding L. 2016 . What are the Panama Papers? A Guide to History's Biggest Data Leak . The Guardian . 5 April.

Google Scholar

The International Principles on the Application of Human Rights to Communications Surveillance (the ‘Necessary and Proportionate Principles’). 2013 .

Lee D. 2016 . Apple v the FBI: A Plain English Guide . BBC News . 18 February.

Privacy International . 2012 . Towards International Principles on Communications Surveillance. https://www.privacyinternational.org/node/270 (referenced 13 June 2016).

Privacy International and other NGOs . 2015 . Call for Applications and Checklist for Selection and Appointment of the Special Rapporteur on the Right to Privacy. 9 April. https://www.privacyinternational.org/sites/default/files/checklist%20for%20Special%20Rapporteur%20on%20 the %20right%20to%20privacy.pdf (referenced 13 June 2016).

Privacy International . 2016 . Written statement at the 31st session of the UN Human Rights Council. https://www.privacyinternational.org/sites/default/files/Privacy%20International_Written.pdf (referenced 13 June 2016).

UN General Assembly . 2013 . Resolution 68/167. The Right to Privacy in the Digital Age. Adopted 13 December. A/RES/68/167.

UN General Assembly . 2014a . Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, Ben Emerson. A/69/397.

UN General Assembly . 2014b . Resolution 69/166. The Right to Privacy in the Digital Age. Adopted 18 December. A/RES/69/166.

UN General Assembly . 2016 . Report of the Special Rapporteur on the Right to Privacy, Joseph Cannataci. A/71/368.

UN Human Rights Committee . 2014 . Concluding Observations: United States of America. CCPR/C/USA/CO/4.

UN Human Rights Committee . 2015a . Concluding Observations: Republic of Korea. CCPR/C/KOR/CO/4.

UN Human Rights Committee . 2015b . Concluding Observations: Canada. CCPR/C/CAN/CO/6.

UN Human Rights Committee . 2015c . Concluding Observations: France. CCPR/C/FRA/CO/5.

UN Human Rights Committee . 2015d . Concluding Observations on the former Yugoslav Republic of Macedonia. CCPR/C/MKD/CO/3.

UN Human Rights Committee . 2015e . Concluding Observations: United Kingdom of Great Britain and Northern Ireland. CCPR/C/GBR/CO/7.

UN Human Rights Committee . 2016a . Concluding Observations: Namibia. CCPR/C/NAM/CO/2.

UN Human Rights Committee . 2016b . Concluding Observations: New Zealand. CCPR/C/NZL/CO/6.

UN Human Rights Committee . 2016c . Concluding Observations: Rwanda. CCPR/C/RWA/CO/4.

UN Human Rights Committee . 2016d . Concluding Observations: South Africa. CCPR/C/ZAF/CO/1.

UN Human Rights Committee . 2016e . Concluding Observations: Sweden. CCPR/C/SWE/CO/7.

UN Human Rights Council . 2009 . Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, Martin Scheinin. A/HRC/13/37.

UN Human Rights Council . 2013 . Report of the Special Rapporteur on the Right to Freedom of Expression, Frank La Rue. A/HRC/23/40.

UN Human Rights Council . 2014 . The Right to Privacy in the Digital Age. Report of the High Commissioner for Human Rights. A/HRC/27/37.

UN Human Rights Council . 2015 . Resolution 28/16. The Right to Privacy in the Digital Age. Adopted 26 March. A/HRC/RES/28/16.

UN Human Rights Council . 2016 . Report of the Special Rapporteur on the Right to Privacy, Joseph Cannataci. A/HRC/31/64.

American Civil Liberties Union (ACLU) v. Clapper . United States Court of Appeals, Second Circuit. No. 14-42 (2d Cir. 2015). Decided 7 May 2015.

Clapper v. Amnesty International USA . Supreme Court of the United States 133 S. Ct. 1138 (2013). Decided 26 February 2013.

Davis and Others v. Secretary of State for the Home Department . High Court of England & Wales. [2015] EWHC 2092 (Admin). 17 July 2015.

Digital Rights Ireland v. Ireland and Seitlinger and Others . Court of Justice of the European Union. Joined Cases C-293/12 and C-594/12. Judgment of the Court (Grand Chamber) 8 April 2014.

First Unitarian v. National Security Agency . United States District Court, Northern District of California. 16 July 2013.

Jewel v. National Security Agency . United States Court of Appeals, 9th Circuit. 673 F. 3d 902-2011. 29 December 2011.

Klayman et al. v. Obama . United States District Court, District of Columbia. 9 November 2015.

Liberty and Others v. United Kingdom . European Court of Human Rights. Application No. 58243/00. Judgment of 1 July 2008.

Liberty and Others v. Government Communications Headquarters (GCHQ) and Others . Investigatory Powers Tribunal [2014] UKIPTrib 13_77-H. Judgment of 5 December 2014.

Maximillian Schrems v. Data Protection Commissioner . Court of Justice of the European Union. C-362/14. Judgment of the Court (Grand Chamber) 6 October 2015.

R. v. Spencer . Supreme Court of Canada [2014] 2 SCR 212. Judgment of 13 June 2014.

Szabó and Vissy v. Hungary . European Court of Human Rights. Application No. 37138/14. Judgment of 12 January 2016.

Watson and Others . Court of Justice of the European Union. Case C-698/15. Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 28 December 2015; Judgment of the Court (Grand Chamber) in joined cases C-203/15 and C-698/15. 21 December 2016.

Weber and Saravia v. Germany . European Court of Human Rights. Application No. 54934/00. Judgment of 29 June 2006.

Zakharov v. Russia . European Court of Human Rights. Application No. 47143/06. Grand Chamber Judgment of 4 December 2015.

Email alerts

Citing articles via.

Recommend to your Library

Affiliations

Online ISSN 1757-9627
About Oxford Academic
Publish journals with us
University press partners
What we publish
New features
Open access
Institutional account management
Rights and permissions
Get help with access
Accessibility
Advertising
Media enquiries
Oxford University Press
Oxford Languages
University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

Cookie settings
Cookie policy
Privacy policy
Legal notice

This Feature Is Available To Subscribers Only

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

IAS Preparation
UPSC Preparation Strategy

Right to Privacy

The Oxford Dictionary of Law defines privacy as the “right to be left alone. The right to a private life…” Taking a cue from this definition, we can say that the right to privacy is the right to keep our personal information private. Personal information can include electronic communication, sexual orientation, professional activities and even feelings or intellect.

Privacy, as a concept, is not new. Ancient Greece was divided into Polis and Oikos – the public or political sphere, and the private or familial sphere. However, the ‘right’ to privacy is something that is more modern in nature. Although the right to privacy can include both physical privacy and privacy related to communications, with the advent of newspapers, television and the internet, the concept is now more about informational privacy. From the recent Pegasus issue to the Edward Snowden exposé- the attack on privacy comes in the form of overreaching encroachment on private communications. However, we must not forget that the right to privacy is much more than just the right to private communication.

Fundamental Rights like such, are a part of the Polity Syllabus for the civil services exam, and questions based on the same are asked under the GS Paper II of UPSC Mains.

Also, the aspirants preparing for the upcoming IAS Exam can refer to the related links given below and include them as a part of their UPSC preparation:

Right to Privacy [UPSC Notes]:- Download PDF Here

Right to privacy in the Indian context

In India, multiple cases where people have raised concerns over privacy have been registered, and the Supreme Court of the country has fairly announced judgements objecting to any violation of the citizen’s Right to Privacy. To read in detail about India and its Privacy concerns, candidates can visit the linked article.

Despite the absence of any dedicated article in the Indian Constitution, the Supreme Court of India has extended the purview of Article 21 and upheld that the right to privacy is a fundamental right too.

Right to Privacy – Article 21

Article 21 of the Indian Constitution speaks about-

Right to life
Right to personal liberty

According to this article, every person – citizens and non-citizens have the right to live and the right to have personal liberty. The state can’t deprive any person of these two rights except under procedure as prescribed by the Indian Penal Code .

Supreme Court rulings that gave a new meaning to Article 21

Although Article 21 does not speak specifically about the right to privacy, the Supreme Court of India , in various instances, extended the meaning of Article 21. There are many such SC rulings, but two of them are the most important.

a. Previous Supreme Court Rulings Against the Right to Privacy

A.K Gopalan v. The State (1950)

In this case, the petitioner argued that the search and seizure operation carried out in his property violated the provision of Right To Property, as mentioned in Article 19(1). However, the court rejected the argument regarding the right to privacy, saying that the act of police did not obstruct his right to utilise his property. The court also mentioned the caveat of ‘reasonable cause’, which gives police the power to search and seize.

Kharak Singh V. The State of UP

In this case, the petitioner argued that the nightly domiciliary visit to his home by the police violated his right to move freely across India, as enshrined by Article 19 of the Indian Constitution . The petitioner also objected to the police shadowing him. While the court agreed that the nightly domiciliary visits did violate the petitioner’s right to live a dignified and free life, it also agreed that the right to privacy was not a fundamental right, and hence surveillance of his movements did not violate the Constitution.

We mentioned these two cases because these were the first instances when the concept of the Right To Privacy was discussed in the Supreme Court.

b. Supreme Court Ruling That Upheld the Right to Privacy (Article 21 context)

Justice K.S. Puttaswamy (Retd) vs Union of India (2017)

During the hearing of a petition that challenged the constitutional validity of the Aadhar based biometric system, the Supreme Court of India unanimously agreed that the right to privacy is a fundamental right as enshrined by the Constitution. The court expanded the purview of Article 21 and said that the Right to Life and Liberty, as stated in Article 21, also included the right to privacy. Since Article 21 falls under Part III of the Indian Constitution, which deals with fundamental rights, the right to privacy thus automatically became a fundamental right after the judgement. Since then, the right to privacy has been a fundamental right in India.

Read in detail about the Puttaswamy vs Union of India case at the linked article.

Personal Data Protection Bill (2019): Precursor To Right to Privacy Act

As we said in the beginning, privacy in the modern context is more about the privacy in electronic communications and the ensuing personal data generated through such activities. The Personal Data Protection Bill, 2019 aims to localise the data processing activities of the internet platforms, which is akin to the GDPR law in Europe. A concept of ‘data fiduciary’ has emerged from this bill. The data fiduciary is the one who collects the data (like Google). It needs to establish why it is necessary to collect someone’s personal data (for example – enabling the person to sign up for an online service). The fiduciary needs to maintain transparency and the necessary encryption systems to protect personal data.

Above all, the end-user has the right to know whether her data has been processed or not. Some of the lawmakers have objected to some parts of the bill as well, the nature of which will be cleared in the coming years.

Further-Read for UPSC Exam

The subject of the Right to Privacy is one of the most important current affairs topics that encompass a wide range of concepts. We recommend that you read some more information regarding this topic for your IAS exam. Some of the resources are stated below:

The Right To Privacy Bill (2011) (Source – Chief Information Commission official website)
Maneka Gandhi Case

Furthermore, IAS exam aspirants must also carefully review the UPSC Syllabus for the Polity section as it is one of the key subjects from which questions are asked in both the Prelims and the Mains examination.

For any further details, exam updates or study material, visit BYJU’S.

Frequently Asked Questions on Right to Privacy

Q 1. does india have a right to privacy law, q 2. does the technology act (2000) protect the privacy of indian citizens, q 3. what is the right to privacy article in india, leave a comment cancel reply.

Your Mobile number and Email id will not be published. Required fields are marked *

Request OTP on Voice Call

Post My Comment

IAS 2024 - Your dream can come true!

Download the ultimate guide to upsc cse preparation.

Share Share

Register with BYJU'S & Download Free PDFs

Privacy in the Digital Age Essay

Introduction, anonymity and the internet, anonymous servers, anonymous users, advantages and disadvantages of anonymity, controversies and responses.

Bibliography

Social, economic, and technological advances have dramatically increased the amount of information any individual can access or possess. Unfortunately, this has also brought about various challenges that must be addressed 1 . Generally, information is a vital treasure in itself, and the more one has the better. Having valuable, intellectual, economic, and social information creates enormous opportunities and advantages for any individual.

Even though information is a treasure, it can also be a liability. Besides constantly seeking ways to acquire, keep, and dispose of it, users of information also want to make sure that what is seen and heard privately does not become public without their consent. In the present technologically advanced society, a number of factors have contributed to the high demand for information and hence the need for anonymity, security, and privacy.

Increased public awareness of the potential abuse of digital communication, especially the Internet is one major concern for all stakeholders. To a large extent, most Internet users are concerned about privacy and do not want all the information they send or receive over the Internet to be connected to them by name 2 .

This paper presents arguments indicating that it is critical for governments to impose restrictions on Internet privacy. According to Kizza 3 anonymity refers to the state of being nameless or having no identity.

Since it is extremely difficult for anybody to live a meaningful life while being totally anonymous, there are different types of anonymity that exist including pseudo anonymity and untraceable identity.

Pseudo anonymity is where one chooses to be identified by a certain pseudonym or code while untraceable identity implies that one is not known by any name.

For many people, anonymity is one of the biggest worries as far as using the Internet’s is concerned. The virtual world may make it easier for dissidents to criticize governments, for alcoholics to talk about their problems and for shy people to find love 4 . However, anonymity also creates room for dishonest people to pose as children in chat rooms and criminals in order to hide from law enforcers.

As such, Internet anonymity seems to cut both ways. According to proponents, preserving anonymity on the Internet may be the cornerstone of safeguarding privacy and a vital part of the constitutionally protected right to free speech. Critics have, however, argued that online anonymity permits people to affect others and not be held responsible or accountable for their actions.

In general, the use of the Internet has created room for individuals to operate in secret, without any one being able to tell who they are. In particular, the Internet provides two channels through which anonymous acts can be carried out. These are anonymous severs and anonymous users.

With advances in software and hardware, anonymity on the Internet has grown through anonymous servers. These may be full anonymity servers or pseudonymous servers. When full anonymity servers are used, it is impossible to identify the packet headers.

In the case of pseudonymous servers, pseudonyms are usually placed inside packet headers to conceal identity. In the process, the actual identity gets hidden behind a pseudonym and any packets received thereafter are relayed to the real server. Anonymity servers are able to accomplish this through the use of encryption 5 .

Other options are also used to allow users to adopt false names to hide their identity as they use the Internet. With false names, they can proceed to use message boards or participate in chat rooms without being recognized by anyone.

This has sometimes led to sensitive or highly personal information being posted to user groups, news groups, and chat rooms. In addition, popular protocols are also used to provide anonymity to the users. Generally, these protocols accept messages relayed to servers with arbitrary field information.

To some extent, anonymity may be used to curb bad behavior and to warn culprits that they are being watched. This contributes greatly to ensuring that everyone in the organization behaves appropriately. Although whistle blowers are sometimes controversial, they are reliable in a number of occasions such as when there is abuse of office and resources. Secondly, anonymity can be useful to those in charge of national security.

It may be used by underground spies to gather useful information for national defense. Where there is intimidation and fear of punishment, anonymity may be used to reveal useful information. Anonymity is also good for strengthening relationships and the security of some people 6 .

One of the disadvantages has to do with the fact that anonymity can make it easy for criminals and fraudsters to commit crime. It can also make it difficult to access information that may be useful for settling disputes.

Anonymity, according to its defenders, is a right protected by the American Constitution. In a notable 1995 case concerned with the distribution of anonymous pamphlets, the Supreme Court noted that anonymity is some form of a shield for individuals. Enshrined in law or not, the power to remain anonymous is often taken for granted by members of democratic societies.

Many authors have written controversial works using pseudonyms, politicians comment confidentially using generic titles like a spokesperson, and one of the first principles of journalism is never to divulge the identity of an anonymous source. It is important to note that anonymity is central to free speech and free speech is central to democracy.

According to Lambert 7 , anonymity can be a weapon that damages or destroys reputations. Defenders of anonymity are always concerned that the idea of anonymity on the Internet is regarded differently from any other kind of anonymity.

If the Supreme Court recognizes that anonymous books and leaflets are a justified form of free speech, the argument goes that Internet communication should be treated the same. Where anonymity is concerned, radio and television are treated differently from books because they are broadcast media.

They are not disseminated the same way and are harder to ignore. Although critics charge that Internet anonymity should be subject to special regulation, one of the basic premises of devising laws for the Internet is that they should be technologically neutral.

According to law enforcers, the Internet’s built in anonymity makes it a safe haven not just for whistle blowers and dissidents but also for criminals and terrorists. In November 2002, newspapers reported that the Pentagon had briefly considered and rejected an idea called e-DNA, which would have tagged natural Internet traffic with personalized makers.

Since human DNA is unique to every individual, DNA samples taken from crime scenes can often be used to trap criminals. In much the same way, the Pentagon’s Defense Advanced Research Projects Agency (DARPA) hoped that Internet traffic tagged with e-DNA makers would be traceable to individuals and their computers. Had the plan not been scuttled, it would have outlawed most forms of Internet anonymity.

However, if anonymity is a cornerstone for democracy, as proponents allege, it would seem to be worth going to some lengths to defend. Apparently, this would require more than passing laws to protect Internet users who want to remain anonymous.

Ultimately, the recognition of the different kinds of anonymity might be necessary, followed by the treatment of the various forms of anonymity in different ways, including legal protection for uses of anonymity that are not connected to criminal behavior.

It may also be necessary to come up with ways to distinguish between those hiding behind their anonymity to commit crime and those using it for whistle blowing purposes. The distinction will help organizations to determine if it is necessary to allow anonymity in a given situation.

Strangely enough, anonymity may be complicated or simplified through the Internet given that communication via the Internet happens secretly and determining a user’s identity can not be done with absolute certainty.

As has been discussed in this paper, anonymity has its good and bad side. If left unchecked, innocent individuals in the society will be subjected to undeserved suffering. In a number of cases, therefore, it is necessary either for a local authority or national legislatures to pass laws that regulate when and who can use anonymity legally.

In the current environment of the Internet, there are serious debates on the freedoms of individuals on the Internet and how these freedoms can be protected when dealing with people on the Internet under the cover of anonymity.

Kizza, Joseph. Ethical and Social Issues in the Information Age . Chattanooga, TN: Springer, 2010.

Lambert, Laura. The Internet: Biographies . Santa Barbara, California: ABC-CLIO, 2005.

Schwabach, Aaron. Internet and the Law: Technology, Society, and Compromises. Santa Barbara, California: ABC-CLIO, 2006.

1 Joseph Kizza, Ethical and Social Issues in the Information Age . (Chattanooga, TN: Springer, 2010), 23.

2 Aaron Schwabach, Internet and the Law: Technology, Society, and Compromises. (Santa Barbara, California: ABC-CLIO, 2006), 45.

3 Joseph Kizza, Ethical and Social Issues in the Information Age . (Chattanooga, TN: Springer, 2010), 24.

4 Laura Lambert, The Internet: Biographies . (Santa Barbara, California: ABC-CLIO, 2005), 53.

5 Joseph Kizza, Ethical and Social Issues in the Information Age . (Chattanooga, TN: Springer, 2010), 31.

6 Laura Lambert, The Internet: Biographies . (Santa Barbara, California: ABC-CLIO, 2005), 61.

7 Laura Lambert, The Internet: Biographies . (Santa Barbara, California: ABC-CLIO, 2005), 65.

Chicago (A-D)
Chicago (N-B)

IvyPanda. (2020, January 21). Privacy in the Digital Age. https://ivypanda.com/essays/privacy-in-the-digital-age-essay/

"Privacy in the Digital Age." IvyPanda , 21 Jan. 2020, ivypanda.com/essays/privacy-in-the-digital-age-essay/.

IvyPanda . (2020) 'Privacy in the Digital Age'. 21 January.

IvyPanda . 2020. "Privacy in the Digital Age." January 21, 2020. https://ivypanda.com/essays/privacy-in-the-digital-age-essay/.

1. IvyPanda . "Privacy in the Digital Age." January 21, 2020. https://ivypanda.com/essays/privacy-in-the-digital-age-essay/.

IvyPanda . "Privacy in the Digital Age." January 21, 2020. https://ivypanda.com/essays/privacy-in-the-digital-age-essay/.

Organizational Ethics: Encouraging Whistle-blowing within Organizations
Whistle-Blowing and Leadership
Freedom of Expression on the Internet
Demonstrations and Protests
What Are Human Rights?
Media Ethics and Law – Free Expression
Immigrants and Human Rights
Oppression of Women’s Rights Affects the Economy of the Middle East

Board of Trustees
Property Rights
Equality and Opportunity
Separation of Powers
Amicus Briefs
Legislation
Supreme Court
Sword&Scales Magazine
Dissed Podcast
Student Opportunities
Submit A Case

Explaining the Fourth Amendment : What counts as persons, houses, papers, and effects?

“The text of the Fourth Amendment reflects its close connection to property,” Justice Antonin Scalia once wrote for the Supreme Court. This vital part of our Constitution secures Americans against unreasonable searches and seizures and is referred to often in popular culture as a privacy right.

But the way it protects privacy is by securing private property . Specifically, the Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” In the context of this language, Justice Scalia’s language appears to ring true. But how can old-fashioned private property principles protect Americans from the high-tech threats posed by government surveillance practices today? This article will focus on what “persons,” “houses,” “papers,” and “effects” mean, tackling each in turn, and examining how they stack up against the increasingly sophisticated ways that cities, bureaucrats, police officers, and even municipal code inspectors investigate Americans in the 21st century.

Jump to a section:

Part I: Persons

Part ii: houses, part iii: papers.

Part IV: Effects

————————————————–

E.g. bodies, clothes, bags, faces, DNA, behaviors.

The traditional person

“What’s a person?” might seem like a silly question on its face, but it has generated quite a bit of work for constitutional scholars, lawyers, judges, and politicians. The Fourth Amendment protects “the right of the people to be secure in their persons ” against “unreasonable searches and seizures.”

Let’s begin with first principles. Humans, obviously, are persons, so we know that it includes our physical bodies. Thus, when a police officer tackles and handcuffs a fleeing robber, he has “seized” the criminal’s “person.” When you’re pulled over by a police officer, you’re clearly not free to leave, so your person has been seized there as well.

For centuries, courts have also held that the “person” extends to the clothes you are wearing and the articles you are carrying with you. I once litigated an assault & battery case where a woman had grabbed a necklace off her husband’s neck. The court—rightfully—ruled it an assault & battery, even though there was no evidence of any hitting or punching, because her husband’s “person” extended to the necklace he was wearing. Consider the line often heard during courtroom dramas where a cop reports that a key piece of evidence was found “on his person.” This is the conventional legal meaning of “person” and it’s the one the courts follow when considering whether a person has been searched or seized by the government in a constitutional sense.

DNA, technology, and personas

During the ancestry craze of the early 2000s, DNA testing became cheap enough that Americans rushed by the thousands to upload a sequenced sample of their saliva into a semi-public database. Since then, DNA databases have been used to catch high-profile criminals, like the Golden State Killer . While the officers involved in that famous arrest didn’t resort to ordering the database to turn over data, the case raised an important question in many concerned legal minds: What if they did? Is our DNA part of our “person” for constitutional purposes?

There’s no question that your skin cells belong to you until you shed them. Same goes for saliva. But what happens when you toss the plastic cup you drank from at a barbecue in the park and a police officer fishes it out of the trash? Is that still your “person,” or merely abandoned property? Notably, there’s no constitutional protection under the Fourth Amendment for abandoned property. The courts generally view the seizure of such items to be valid without much scrutiny. The Supreme Court, for its part, has applied constitutional scrutiny to the question of whether a suspected criminal in custody can have his fingerprints taken or his mouth swabbed for DNA. The first clever criminal to argue that searching a database using DNA violated the Fourth Amendment lost . However, the Court did not flatly rule that people do not have a Fourth Amendment interest in their DNA, so it is conceivable that someone else might yet prevail in such a lawsuit. Because DNA is the biological blueprint for our person, there can be little doubt it is a part of that property interest that comprises each person’s inalienable right to self-ownership.

Indeed, self-ownership is the foundation for the Fourth Amendment’s defense of “persons.” So, if the Fourth Amendment protects our bodies, the clothes we’re wearing, and the DNA inside our bodies—to admittedly varying extents as recognized by the courts—what about our faces?

Most of our phones these days can scan our faces instead of asking for a password. Cameras with sophisticated algorithms can identify unique faces and track the patterns of our movements. The Chinese government has turned this practice into a literal science in a manner that would make even Orwell’s Big Brother cringe. Can the U.S. government do the same? “Maybe” is the best answer we have from the courts today.

In one case litigated by the ACLU against the City of Baltimore , the U.S. Court of Appeals for the Fourth Circuit ruled that a city program to track the movements of its citizens by an integrated program of aerial surveillance and street cameras likely violated the Fourth Amendment because of an argument often referred to as “mosaic theory.”

The mosaic theory draws from a line of Supreme Court cases that focus on whether people have a “reasonable expectation of privacy” against government surveillance, typically when their persons or behaviors are involved. It admits that a person does not have an expectation of privacy in any single piece of data that tells the government where they were or what they were doing at any singular point in time. But, when a surveillance program—like facial recognition or GPS-tracking—collects a larger sample of data, for a more extended period of time, it reveals a great deal of private information that warrants constitutional protection. Lawyers, scholars, and the Supreme Court itself continue to grapple with this mosaic theory.

Because the Court has taken a hard right turn toward property principles and Originalism, it remains to be seen whether and how the theory can be squared with the Fourth Amendment’s enumeration of property interests. But if our “person” includes more than our bodies, there is an argument to be made that it extends to our “persona.” Indeed, intellectual property law has recognized for quite some time that people’s likenesses are their property, as are the fruits of their labor. Most of the proponents of the mosaic theory tend to be liberals, and its detractors are mostly conservatives. This is somewhat ironic when it’s considered that the idea that you have some inalienable property interest in your person and the fruits of your actions and labors—perhaps, in some sense, to include the collection of your movements—is a quite Lockean idea. Perhaps we should call this the “persona” theory rather than the “mosaic” theory…

E.g. homes, businesses, outbuildings.

What is a house? It’s obviously a place where you live. But the Fourth Amendment’s text is interpreted based on what its words meant in 1791 when it was ratified. If we consider that “house” was more commonly used as a verb at that time and many non-dwelling buildings even contained the word house (and do still today), that question is not as clear as it may first have appeared. Consider ware houses , Ebenezer Scrooge’s counting house , and the poor houses of the 18th century.

Whenever the Court is unsure of what a word in the Constitution might include, they look to history. Here, it’s very instructive.

Houses are structures

In the 1760s, British customs officials searched and rummaged through people’s houses and businesses in an arbitrary and far-reaching bid to enforce crushing tax laws in desperate—and often politically motivated—attempts to find smuggled goods. They didn’t have specific warrants but relied on “writs of assistance” and “general warrants” that let them search anywhere they wanted without cause—and even force others to help them!

James Otis, a great pre-revolutionary lawyer in Boston, delivered an impassioned five-hour-long argument in Paxton’s Case arguing that these writs and warrants were invalid and unlawful. Importantly, he argued the case on behalf of a collection of Boston merchants whose warehouses and businesses had been searched. The Supreme Court loves citing James Otis’ argument in Paxton’s Case , which John Adams—who was sitting in the courtroom that day—would later refer to as the first step toward American independence. Because this case was the rallying banner for what would eventually become the Fourth Amendment, it only makes sense that the term “houses” would be interpreted to include businesses as well as homes. And indeed it has.

What about regulations?

Today, it seems that there is an increasing number of regulations for just about anything you can conceive of. You want to replace a window in your home? Get a permit. You want to practice massage therapy? Get a license. You want to own a falcon? Get a license. Increasingly. these permits and licenses are issued with strings attached—strings that say your home or business can be searched without a warrant.

So what does the Fourth Amendment say about these searches of “houses”? Well, the Supreme Court clarified in the 1960s that, even though regulatory searches don’t specifically look for evidence of crime, they still have to follow the warrant requirement because you don’t lose your Fourth Amendment rights in property just because you’re using that property for an activity the government has chosen to regulate. For certain heavily regulated industries that pose a danger to society and have a long history of close government supervision, the courts have dispensed with the warrant requirement and replaced it with looser standards.

The exception from the warrant requirement was originally intended to apply to industries like nuclear power, firearms, and underground mines, but unfortunately the regulators have run away with the doctrine, applying it to everything from convenience stores that happen to sell cigarettes (so, most of them) to horse racing and dog training. Much of the expansion of this doctrine took place during a period when the Supreme Court was focused on “privacy interests” rather than property principles and was premised on the theory that your “reasonable expectation of privacy” is diminished in property that’s being used for an activity the government has chosen to regulate.

This theory violates the idea that the Constitution’s protections for liberty are locked in place and superior to mere legislation. With the Supreme Court’s return to evaluating Fourth Amendment cases using property principles rather than privacy interests, it is likely to be pared back in the coming years.

When we think about the meaning of “papers,” we might be inclined to think about a physical stack of documents. The Supreme Court has said that business records, diaries, and files of all sorts are “papers.” Digging a bit further into the history of Fourth Amendment, some of the famous lawsuits that took place in England around the time of the American Revolution involved political dissidents who had their houses searched for seditious articles they had printed under pseudonyms that were critical of the King—a big no-no back then! Such documents, of course, are papers within the meaning of the Constitution.

More recently, the Supreme Court ruled in 2015 that the City of Los Angeles couldn’t force hotel owners to turn over their guest registries without a warrant under the guise of business regulation.

The third-party doctrine

From the 1970s until about 2012, the Court used to determine whether someone had standing to challenge a search or seizure of their records based on whether they had a “reasonable expectation of privacy” in the documents’ contents. Personal emails, of course, are protected under this framework. But documents kept by a third-party service-provider, like bank records, were not considered to be sufficiently private under the Fourth Amendment because you accept the risk that the service provider might turn around and share them with someone else. Today, it would be pretty unlikely to consider that your bank will just hand your records to some passerby who wanders into the building and requests them. Nonetheless, this rule—called the “third-party doctrine”—still survives today.

Digital records

Questions increasingly arise over how our 18th-century Bill of Rights applies to new technologies that might not have been conceived by the Founders. Usually, however, there is some analogous technology or practice that can be examined to see how, for example, a politician’s twitter page might be considered a “public forum” akin to a town square under the First Amendment, or an electronic diary entry might be a “paper” within the meaning of the Fourth Amendment. But as we continue to store our papers in “digital” form with electronic service providers like telephone companies, email servicers, and app developers, this raises some weighty questions about whether we retain a “reasonable expectation of privacy” in them—after all, we did share the data with a third party! Here, the Supreme Court has come halfway to answering the question in a way that is unsatisfying to everyone.

In Carpenter v. United States , the Court ruled in 2018 that cell phone users have a “reasonable expectation of privacy” in the location data passively shared with telecommunications companies, but it refused to overrule the older third-party-doctrine cases, leaving that legal rule in a bit of a limbo space. Justice Neil Gorsuch, who wrote a dissenting opinion in Carpenter , had an interesting idea, though. His dissent, which truly reads more like a concurrence, took the position that the third-party doctrine must be overruled as there is no way to square that rule with what the majority opinion said about retaining an expectation of privacy in cell-site records. And he was probably right. After all, one of the principal cases that created the third-party doctrine came out of the 1970s and said that you have no expectation of privacy in the phone numbers you call because those numbers are shared with the switchboard operators who connect different phone lines together (also… passively).

The fascinating germ of Gorsuch’s opinion, however, is rooted in property customs and principles. While lamenting that the attorneys never raised this argument, he discussed how the Court might find that a person has a customary or positive property-related or contractual interest in the records kept by a telephone or other business, and therefore they would have standing to challenge the collection of those records by the government without a warrant. This is similar to the Court’s analysis of whether a police officer exceeded the common-law solicitation license when he deployed a drug dog to a home’s doorstep.

Customs and practices are often helpful in determining whether a search or seizure trespasses on a person, house, paper, or effect, and could prove quite useful in future cases at the Supreme Court—if only one can preserve those arguments and make them effectively.

What we can learn from the dot-com boom

In the early 2000s, the World Wide Web was brand new—at least in the global commercial sense in which we experience the internet today. eBay was a brand-new service and it had many competitors. One particular dispute that arose between eBay and a company called Bidder’s Edge can teach us a lot about how the courts might evaluate Fourth Amendment cases involving digital “papers” today. eBay was only one of several person-to-person selling platforms and the same items would often be posted on multiple websites. Enter Bidder’s Edge.

Bidder’s Edge was a company that aggregated data from several websites like eBay. Bidder Edge programmed its search bots to crawl to websites like eBay, scrape data from them, and bring it back so that the company could tell its users what the current bid was on various websites for a particular item—say, a baseball glove, for example. At that time, internet companies used a standard set of code to instruct the bots sent out by search engines and other websites about what data they were allowed to scrape off. Think of it as a digital “No Trespassing” sign: “You can have this stuff, but go no further .” Bidder’s Edge programmed its bots to ignore that instruction, which was against the customs of the internet at that time.

So what did the court do when eBay sued Bidder’s Edge? It dusted off its property treatise and applied the law of trespass! This is likely the approach Justice Gorsuch, and many other lawyers, judges, and scholars would like to see employed in digital search cases under the Fourth Amendment. It’s certainly a lot more straightforward and predictable in its outcome than asking whether there’s a socially reasonable expectation of privacy… Again, property principles save the day—and protect privacy rights better than a test actually based on privacy.

Part IV: Effects

The courts consider any moveable property to be “effects,” including cars, bags, purses, and other containers. Thus, when a police officer pulls you over, he’s seizing you and your car and all the stuff inside your car. Whether he can search your vehicle or the containers within it turns on one of the Fourth Amendment’s warrant exceptions for vehicles.

But one thing that an adroit reader might have picked up on at this point is the fact that “persons, houses, papers, and effects ” doesn’t appear to include land . Does this mean that government agents can brazenly traipse across your front yard and through your forested tracts, hopping fences as it goes? According to the U.S. Supreme Court’s most recent rulings on this question, the answer is “yes.”

Because the Fourth Amendment does not say “possessions” or “property” the way some state constitutions do, the federal courts have interpreted it not to include land under a doctrine called “open fields.” If an officer is standing in an “open field” rather than your house or curtilage—the area immediately surrounding the home—then he’s theoretically not effecting a search or seizure. However, it remains an open question whether officers do engage in searches or seizures under the Fourth Amendment when they, for example, take a soil sample or leave something behind—like a camera. That’s for a couple of reasons.

First, there is a property principle called “trespass on the case,” which applies when someone does something on your property that owes itself to the initial trespass. Consider for a moment that a bandit entered your property without permission, in clear view of your no-trespassing signs, and then dumped toxic waste. The waste he left behind is a trespass on the case. The same rule might apply to the camera (“effect”) that a game warden left on your property when he entered without permission. It might not be your effect in the first instance, but it’s violating your property rights in ways that might just result in a Fourth Amendment event. Second, if the government is taking an animal or sample from your land, then it’s not just searching or seizing your land anymore. Instead, the clump of dirt or the frog it seized is a “chattel” or “effect,” and the common law property principles that exist in the background of the Fourth Amendment and inform its meaning treat those items as your property because they were on your land.

These theories have yet to reach and be considered by the U.S. Supreme Court, but there is little doubt that they will make it there someday soon.

The course of Fourth Amendment case law might be meandering, but it has returned to a more predictable path recently.

The U.S. Supreme Court’s pivot away from privacy interests and toward property interests means that we should examine more closely what Founding-era equivalents to modern “persons, houses, papers, and effects” might have looked like and whether and how they were subject to search in the early days of our Republic. Further, there is reason to be optimistic that this return to Originalism and property principles will better safeguard property and privacy for future generations.

Related Cases

Relaxing massage experience with a cozy massage table

Local government wields unannounced, warrantless search power over private businesses and home practitioners

Vondra v. city of billings, related articles.

Without property rights, we drift further down “The Road to Serfdom”

March 21, 2024 | by brittany hunter.

This unknown colonial lawyer helped spark the American Revolution and paved the way for American property rights

March 18, 2020 | by daniel woislaw.

Find anything you save across the site in your account

The Hidden-Pregnancy Experiment

By Jia Tolentino

An illustration of a pregnant woman looking at her iPhone as it connects to the data points around her.

Shortly after I became pregnant with my second child, in the fall of 2022, I decided to try a modest experiment. I wanted to see whether I could hide my pregnancy from my phone. After spending my twenties eagerly surveilling and sharing the details of my life online, I had already begun trying to erect some walls of technological privacy: I’d deleted most apps on my phone and turned off camera, location, and microphone access for nearly all of the ones that I did have; I had disabled Siri—I just found it annoying—and I didn’t have any smart devices. For the experiment, I would abide by some additional restrictions. I wouldn’t Google anything about pregnancy nor shop for baby stuff either online or using a credit card, and neither would my husband, because our I.P. addresses—and thus the vast, matrixed fatbergs of personal data assembled by unseen corporations to pinpoint our consumer and political identities—were linked. I wouldn’t look at pregnancy accounts on Instagram or pregnancy forums on Reddit. I wouldn’t update my period tracker or use a pregnancy app.

Nearly every time we load new content on an app or a Web site, ad-exchange companies—Google being the largest among them—broadcast data about our interests, finances, and vulnerabilities to determine exactly what we’ll see; more than a billion of these transactions take place in the U.S. every hour. Each of us, the data-privacy expert Wolfie Christl told me, has “dozens or even hundreds” of digital identifiers attached to our person; there’s an estimated eighteen-billion-dollar industry for location data alone. In August, 2022, Mozilla reviewed twenty pregnancy and period-tracking apps and found that fifteen of them made a “buffet” of personal data available to third parties, including addresses, I.P. numbers, sexual histories, and medical details. In most cases, the apps used vague language about when and how this data could be shared with law enforcement. (A 2020 FOIA lawsuit filed by the A.C.L.U. revealed that the Department of Homeland Security had purchased access to location data for millions of people in order to track them without a warrant. ICE and C.B.P. subsequently said they would stop using such data.) The scholar Shoshana Zuboff has called this surveillance capitalism , “a new economic order that claims human experience as free raw material for hidden commercial practices of extraction, prediction, and sales.” Through our phones, we are under perpetual surveillance by companies that buy and sell data about what kind of person we are, whom we might vote for, what we might purchase, and what we might be nudged into doing.

A decade ago, the sociology professor Janet Vertesi conducted a more rigorous form of the hidden-pregnancy experiment. Using an elaborate system of code words and the anonymous browser Tor, she managed to digitally hide her pregnancy all the way up to the birth of her child. In an article about the experience, for Time , she pointed to a Financial Times report, which found that identifying a single pregnant woman is as valuable to data brokers as knowing the age, gender, and location of more than two hundred nonpregnant people, because of how much stuff new parents tend to buy. She also noted that simply attempting to evade market detection—by, for example, purchasing stacks of gift cards in order to buy a stroller—made her and her husband look as though they were trying to commit fraud.

I wasn’t going to do anything so strict or elaborate. I’d allow myself to text and send e-mails about my pregnancy, and to talk about it with my phone nearby. I assumed that, eventually, it would notice; I’d just wait and see when a diaper ad popped up on Instagram. I liked the idea of establishing a buffer zone between my psyche and the object that most closely monitors it. I found it almost shocking to remember that this was possible.

Pregnancy tends to erode both your freedom and your privacy. Past a certain point in your second trimester, strangers will begin reaching toward your stomach and telling you about the real difference between boys and girls. But I had eluded this during my first pregnancy, because COVID hit before I started showing. In the months that followed, I began to feel the difference between witnessing something and surveilling it, and to recognize that the most pleasurable moments in my life had occurred out of the reach of any oversight. I had felt then an almost psychedelic sense of autonomy; time was dilating, and the slow bloom inside me was beyond anyone’s reach. I wanted to see if I could feel anything like that again.

During pregnancy, and in the early days of parenthood, one is both the object and the conductor of intense surveillance. Last year, the artist and filmmaker Sophie Hamacher co-edited an anthology of writing on the subject, called “ Supervision ,” which was published by M.I.T. Press. “As I became absorbed with tracking and monitoring my child,” Hamacher writes in the preface, “I was increasingly aware that I was a subject of tracking and monitoring by others: advertisers, medical professionals, government entities, people on the street. I began to wonder about the relationship between the way I watched her and the ways we were being watched.” Surveillance encompasses both policing and caretaking, Hamacher notes. In practice, its polarized qualities—“beneficial and harmful, intimate and distanced”—intertwine. Baby monitors use technology developed for the military. Many contemporary models run on CCTV.

Most American households with young children use baby monitors or trackers; two recent surveys put market penetration at seventy-five and eighty-three per cent, respectively. (Both surveys were conducted by companies that make these devices.) And there are now countless other ways that technology will help you to observe and scrutinize your child: nanny-cam Teddy bears, G.P.S. stroller accessories, scales that track your baby’s weight over time, disks that can be affixed to diapers and which will notify you if your baby rolls onto his stomach while he’s asleep. Increasingly, such products use A.I. to detect signs of distress. “The need to know whether a child is safe and well is perfectly natural, which makes the nature of such surveillance appear innocent,” the writer and scholar Hannah Zeavin notes in “Family Scanning,” one of the essays in “Supervision.” But, she adds, “these technologies conceal the possibility of false positives, disrupted emergency services, and of collaboration with state forces—wittingly or unwittingly—all in the name of keeping children safe.” As a general rule, these devices don’t lead to better outcomes for the babies they monitor. More often—like social media, which promises connection as a salve for the loneliness created by social media—parenting tech exacerbates, even calls into existence, the parental anxieties that it pledges to soothe.

This has become a common pattern in contemporary life. Nearly a fifth of U.S. households are estimated to use doorbell cameras, many of them from Ring, the Amazon-owned company that has expanded its reach through police partnerships and a dedicated app that encourages users to post footage of strangers. Ring cameras haven’t made neighborhoods measurably safer, but they have made users measurably more paranoid, and placed more people, sometimes with grave outcomes, in contact with the police. Until recently, police could readily access surveillance footage from the Ring network without a warrant by posting requests on the app. It also gave its own employees and third-party contractors “ ‘ free range ’ access” to view and download videos from users’ homes.

In 2015, the company Owlet started selling a two-hundred-and-fifty-dollar Smart Sock, which monitored babies’ heart rates and oxygen levels, and alerted parents if these figures were abnormal. Although the company insists that it has made clear that the product is not intended to “treat or diagnose” sudden infant death syndrome—and there is no evidence that it reduces the risk of SIDS occurring—such devices are sometimes referred to as “ SIDS monitors.” But, in 2017, an opinion piece in the Journal of the American Medical Association cautioned physicians against recommending the product. “There are no medical indications for monitoring healthy infants at home,” the authors wrote. The device, they noted, could “stimulate unnecessary fear, uncertainty, and self-doubt in parents about their abilities to keep their infants safe.” The following year, a study in the same journal found “concerning” inaccuracies in oxygen readings. When Owlet went public, in February, 2021, the company had a valuation of more than a billion dollars; later that year, the F.D.A. issued a warning letter that the Smart Sock wasn’t an authorized medical device, and the company pulled it off the market. A million units had already been sold. The following year, Owlet launched a new version, called the Dream Sock, which would receive F.D.A. approval. Most of the reviews for the Dream Sock exude profound gratitude. Parents write about the peace of mind that comes from knowing the baby is being constantly monitored, about not knowing what they would do if the device didn’t exist.

Surveillance capitalism, Zuboff writes, “aims to impose a new collective order based on total certainty.” But little is certain when it comes to babies. The control that we feel when we’re engaged in surveillance almost always proves illusory, though the control, or at least the influence, that others exert on us through surveillance is real.

It is not a coincidence that Roe v. Wade, a ruling grounded in the right to privacy, was overturned at a time when privacy in the U.S was on its conceptual deathbed. There are other legal principles that might have served as a stronger foundation for abortion rights: the right to equal protection, or the right to bodily integrity. As Christyne Neff wrote, in 1991, the physical effects of an ordinary pregnancy and delivery resemble those of a severe beating—flesh lacerated, organs rearranged, half a quart of blood lost. Can the state, she asked, rightfully compel a person to undergo this?

Since Roe fell, two years ago, fourteen states have claimed that power in absolute terms, banning abortion almost completely. Two states have successfully passed abortion-vigilante laws, which confer the power of carceral supervision on the public. Indiana’s attorney general has argued that abortion records should be publicly available, like death records; Kansas recently passed a law that would require abortion providers to collect details about the personal lives of their patients and make that information available to the government. Birth control and sex itself may be up next for criminal surveillance: the Heritage Foundation , last year, insisted, on Twitter, that “conservatives have to lead the way in restoring sex to its true purpose, & ending recreational sex & senseless use of birth control pills.”

For many women in America, pregnancy was a conduit to state surveillance long before the end of Roe. Poor women, especially poor nonwhite women, are often drug-tested during pregnancy, and sometimes during labor and delivery, without their informed consent. Women who take drugs during pregnancy have been charged with child abuse or neglect, including in cases in which the drugs were legal; women who have miscarried after taking drugs have been charged with manslaughter, even homicide, even when no causal link was proved. Sometimes this happens because the woman in question had responded to billboards and service announcements promising to help pregnant people who are struggling with substance use. In multiple states, women have been taken into custody when the safety of the fetus was called into question. “To be pregnant and poor in the United States is to play a game of roulette with one’s privacy, presumed confidential relationship with medical providers, and basic constitutional and medical rights,” the law professor Michele Goodwin writes in “ Policing the Womb ,” from 2020.

Goodwin describes the case of a woman in Iowa named Christine Taylor, who, in 2010, as a twenty-two-year-old mother of two, was accused of attempted feticide after she fell down the stairs while pregnant. Part of the evidence cited by the police was that she reportedly told a nurse that she hadn’t wanted the baby. (Ultimately, prosecutors decided not to press charges.) The carceral surveillance of pregnancy entails the criminalization of ambivalence, the inspection of these innermost desires. But the deepest truths about motherhood seem to me to be rooted in conflicting, coexisting emotions: nightmare and rapture in the same moment during labor, the love and despair that box each other at night in the weeks that follow, the joy of cuddling my nine-month-old undergirded by the horror of knowing that other babies are starving and dying in rubble. Before I had my first child, I had badly wanted to get pregnant. I had planned for it, prepared for it, hoped for it. Still, when I saw the positive test result, I cried.

My modest experiment went surprisingly smoothly. Because I’d had my first child not long before, this time I didn’t need to buy anything, and I didn’t want to learn anything. I smooth-brained my way to three months, four months, five; no diaper ads. I called up a lawyer and data-privacy specialist named Dominique Shelton Leipzig to get her perspective. Globally, she told me, we generate 2.5 quintillion bytes—that’s eighteen zeroes—of data per day. “The short answer is, you probably haven’t hidden what you think you have,” she said. I told her about the rules I’d set for myself, that I didn’t have many apps and had bought nothing but prenatal vitamins, and that Instagram did not appear to have identified me as pregnant. She paused. “I’m amazed,” she told me. “If you didn’t see any ads, I think you might have succeeded.” I congratulated myself by instantly dropping the experiment and buying maternity pants; ads for baby carriers popped up on my Instagram within minutes.

I had felt little satisfaction hiding from the ad trackers—if anything, I’d only become more conscious of how much surveillance I was engaged in, as both subject and object, and how much more insidious the problem was becoming. We rarely have a clear understanding of what we’re doing when we engage in surveillance of ourselves or others. Life360, an app that’s used by more than sixty million people and is marketed as an easy way to track your child’s location via their smartphone, was found in 2021 to be selling raw location information to data brokers. (The company said it now sells only aggregate data.) In a Pew survey from 2023, seventy-seven per cent of Americans said they had very little to no trust in how social-media executives handle user data, and seventy-one per cent were concerned about how the government uses it. In another survey, ninety-three per cent of Americans said they wouldn’t buy a doorbell camera if it sold data about their family. People just want to be safer. I had wanted security, too, and affirmation—and I had wanted to be a writer. I had disclosed so much of my life to people I’ll never know.

My husband and I had not bought a baby monitor for our first child, a choice that satisfied his desire to not buy things and my desire to insist that certain aspects of experience are fundamentally ungovernable. But shortly after the second child was born she developed eczema, and started scratching her sweet, enormous cheeks in her sleep. One morning, my husband went to her and found that she’d clawed her face open, leaving blood smudged all over her sleep sack and smeared all over her face. “We need a video monitor!” I wailed, already Googling options. “We need to buy a video monitor today.”

We didn’t buy one, but for weeks I regretted it and second-guessed myself. And I surveilled the baby with technology in other ways all the time. In the early weeks, I relied on an app to tell me how much milk she’d drunk and how many soiled diapers she’d had that day—activities that I myself had witnessed just hours before. I felt like a Biblical angel with a thousand eyes, somehow unable to see anything. I took pictures because I knew I would have no memory of the precise contours of this exact baby in a month. When she didn’t seem hungry enough, I panicked, obsessing over every feed.

“What’s the line between pathological self-surveillance and care for a newborn? Is there one?” Sarah Blackwood, an English professor at Pace University, asks, in “Supervision.” Blackwood contrasts the “fantasy of efficiency and sterility” built into parenting tech with the “psychic state of watchfulness so many mothers find themselves in”—a state that is “metastatic, fecund, beyond.” One afternoon, my husband took the baby from me: she was sobbing, and I was incoherently frantic, trying to get her to eat. She was O.K., he told me; she’d eat when she needed to. But I know what’s good for her, and it’s my job to make her do it, I thought, furious. Around the fringes of my consciousness, I felt a flicker of understanding about how this idea that everything was controllable had become so ubiquitous, how we had confused coercion with care. ♦

New Yorker Favorites

The day the dinosaurs died .

What if you started itching— and couldn’t stop ?

How a notorious gangster was exposed by his own sister .

Woodstock was overrated .

Diana Nyad’s hundred-and-eleven-mile swim .

Photo Booth: Deana Lawson’s hyper-staged portraits of Black love .

Fiction by Roald Dahl: “The Landlady”

By signing up, you agree to our User Agreement and Privacy Policy & Cookie Statement . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

By Roz Chast

By Bruce Headlam

The Avant-Garde Is Back on the Launchpad

By Helen Shaw

By Louisa Thomas

Supporting Sponsor:

The Atlantic ’s Guide to Privacy

SEPTEMBER 12, 2023

In 2023, digital privacy is, in many ways, a fiction: Knowingly or not, we are all constantly streaming, beaming, being surveilled, scattering data wherever we go by Charlie Warzel . Companies, governments, and our fellow citizens know more than we could ever imagine about our body by Yael Grauer , our shopping habits by Ian Bogost , even our kids by S. Matthew Liao and Claudia Passos Ferreira . The question now isn’t how to protect your privacy altogether—it’s how to make choices that help you draw boundaries around what you most care about. Read on for our simple rules for managing your privacy, and get a list of personalized recommendations.

Written by Ellen Cushing

Illustrated by Somnath Bhatt

Three simple rules for managing your privacy

Think concretely. Rule 1

The more you conceptualize the internet as a real place, the more intuitive it becomes. Consider physical analogues to your online behavior as much as possible: You may be perfectly comfortable reading a newspaper or watching a movie in public, but you’d probably think twice before sharing your private medical information or details about your love life with a stranger. By that same logic, you may want to focus on protecting health and dating data more than on safeguarding less intimate information.

Share narrowly. Rule 2

Much of your online privacy is out of your control. But you do have power over how much personal information you willingly share with companies and the world. Don’t share anything publicly on social media that you wouldn’t want being seen by your boss, your parents, or your children. Think twice about giving online retailers your zip code or birth date in exchange for a onetime discount. Your personal information is valuable to other people; don’t give it away for cheap.

Don’t panic. Rule 3

“Not all hope is lost,” William Budington, a senior staff technologist at Electronic Frontier Foundation, told me. “There are things you can do to protect your privacy by 85, 90, 95 percent that will not add much friction to your life.” Much of the discourse about privacy and personal security can be quite extreme, suggesting that if you don’t take certain steps, you’re asking to be hacked; that anyone who doesn’t buy X or do Y is an idiot; that the only way to live responsibly online is to apply so many restrictions that any benefit new technologies offer is outweighed by all that self-imposed inconvenience. This isn’t just alienating; it’s incorrect. As experts I spoke with repeatedly told me, privacy is not a product. It’s not one-size-fits-all. It’s not binary: safe or unsafe, exposed or protected. It’s a lifestyle, a process, a series of decisions—the particular set of trade-offs (of time, of money, of inconvenience) you are willing to make based on your own circumstances, needs, desires, fears, and resources. Before you read on, think through how much friction you’re willing to introduce into your life in the name of privacy and security, and think about what you want technology to do for you. In 2023, it’s impossible to protect yourself from every conceivable threat, so focus on the likely ones.

Your privacy plan

Want to take action?

Click the statements that apply to you and you’ll get a personalized list of recommendations.

+ I just want to cover my bases.

Search yourself.

You may be surprised by what you see when you type your (or your child’s) name into a search engine—a three-year-old wedding registry full of photos and identifying details, a professional website you’d forgotten you made, marathon results with your name and birthday, a public school directory with your kid’s photo. Where possible, update these pages to remove or password-protect information that you don’t want to be public. If the page allows a login but you’ve forgotten your password, try resetting it; if that doesn’t work, or someone else maintains the site, look for a contact page and try emailing the site administrator or customer support.

Assess the damage.

If you’ve ever filled out an online form or made an account on a website, chances are good that data have been exposed in a hack. Have I Been Pwned? is a database of these breaches, searchable by phone number and email address. Once your information has been taken, you can’t get it back—but you should definitely search your results page for the word password and update the compromised ones everywhere they were used. Yes, that means resetting your login credentials on any site where you might have used the same password: You wouldn’t want someone getting into your bank account just because it shares a password with some fly-by-night website you made an account on years ago.

Use private browsing—or better yet, a trackless browser.

Most desktop and mobile internet browsers offer private browsing—sometimes called “incognito” or “private” mode—which essentially scrubs your history from the device itself. This is a great tool when using a shared or public computer. But it doesn’t hide your browsing or search history from websites, internet-service providers, advertisers, system administrators (like your employer), or subpoena-empowered authorities. A privacy-focused browser—such as DuckDuckGo, Ghostery, Brave Browser, or Tor—prevents your activity from being stored locally and minimizes this second type of tracking.

Audit your apps.

Many browser extensions and phone apps are designed to suck up your data. The information absorbed can include the ads you click or your precise location while using the app, but it can also mean your photo roll, contacts, microphone and camera use, keystrokes, private messages, IP address, device type, and even your behavior (such as sites visited) outside the app. This information can be used to make the service work better—for example, a food-delivery app might use your location to tell you what’s available nearby—but some apps, especially free ones, also make money by selling your data to advertisers, data brokers, or the government. The good news is that you can manage access to your data by going to your phone’s privacy and security menu and looking for “Safety Check” (on an iPhone) or “Permissions Manager” (on Android). Go through app by app and disable any permissions that seem overreaching. (You may decide that you’re happy manually entering your address when you want takeout.) Pay special attention to what you’ve allowed apps to do “in the background” (that’s a slightly obfuscatory way of describing apps’ tracking you even when you’re not using them) and anything that makes reference to “third parties” (that can be another term for data brokers). Then do the same with your browser extensions. And if you’re not using an app or extension regularly, just delete your account and remove it from your device entirely.

Consider a burner email address.

Use a free service to set up a second email address and use it every time you set up a new social-media account, shop online, or otherwise interact with brands, not people. Your primary inbox will be clearer of junk, and companies will have a harder time tracking you.

Protect your devices.

Any device that can be protected—your computer, phone, tablet, router—should be. On your phone, face or fingerprint ID is good enough for most people, though, of course, using either means turning over your biometric information to a tech giant. A PIN or password is even more secure—the more characters the better.

Start changing your online passwords.

Be NICE: The best passwords are N ew (not reused between sites), I mpersonal (don’t include birthdays, addresses, names, etc.), C omplex (contain lots of special characters and mixed-case letters), and E xtensive (at least 8 characters). From now on, whenever you enter a password, check to see if it meets these requirements—and if it doesn’t, change it. Do the same with your security questions: The answer to “Where were you born?” (which is easy to figure out based on public information) should be gibberish, as though it were another password field.

Get a password manager. If strong passwords are the key to online security, a password manager is the key to keeping track of all those strong passwords without losing your mind. These work by storing all of your passwords in a single password-protected vault that connects with your phone and computer browser—so as long as you know that one master password, every other username and password will autofill as you travel around the web.

Enable two-factor authentication.

Two-factor is an extra layer of security standing between you and bad actors. It works by sending a unique, instantly generated code (or other prompt) to your phone or email when you try to log into an account, which you then enter in addition to a password. The result is that if, say, someone has your password but doesn’t have access to your phone itself, they won’t be able to get into your bank account. Turn this on wherever you can, and when possible use an app like Authy or Google Authenticator to do it (instead of text messages, which are more vulnerable to hackers).

Focus on what matters most.

Remember: The internet is real life. Think about what information you’re most protective of—not so you can panic, but so you can prioritize. Now think about which websites, gadgets, and apps have that information, look at their privacy policies, and see what permissions you can revoke. Privacy Not Included , a project by the nonprofit Mozilla Foundation, offers plain-English assessments of the privacy policies for hundreds of companies, focusing especially on high-stakes arenas such as wearables; dating, prayer, fertility, and mental-health apps; and kids’ products.

Make a date with digital privacy.

You’re already in a much better position than you were before—congratulations! But policies and regulations change, so after you’ve done all this, set a reminder for a year or so from now to update your devices and spin through the preferences in your apps. Now that you’ve laid the groundwork, it shouldn’t take long.

+ I’m worried about protecting my children’s online privacy.

Don’t post photos of your kids.

If you are worried about your children’s online privacy, the best thing you can do is not post photos of them publicly—especially in “permanent” spaces like your Facebook feed and Instagram grid, as opposed to Stories—and ask the other adults in their life to do the same. If you’re looking for a more private way to share with far-flung friends and family, Google’s and Apple’s photo apps both support invitation-only group albums.

Look at their permissions.

Kids’ products are subject to different regulations than those aimed at adults, but those regulations are poorly enforced—and besides, older kids may be using apps not subject to those regulations in the first place. Check Privacy Not Included for summaries of the privacy policies of many popular toys and games .

Teach your children digital literacy.

Walling your kids off from technology entirely is a lost cause—if they’re not playing Minecraft and Roblox at home, they’re probably using ed-tech products at school. So in the same way you’d teach them how to manage their finances or their hygiene, talk to your kids (in an age-appropriate way!) about what happens to the information they put online. Younger kids should understand the difference between public and private, and older ones should be aware that as soon as they share a photo or send a message, it can be disseminated without their permission and seen by people beyond their intended recipient. The app Do Not Track Kids blocks tracking and offers cartoon-assisted lessons about privacy, and the National Cybersecurity Alliance has tips for parents on its website.

+ I message a lot and am worried about my private communications getting leaked.

Download an encrypted messaging app and enable disappearing messages.

Not all messaging apps are truly private. Look for a service that is end-to-end encrypted (such as Signal, Whatsapp, and iMessage), meaning unreadable to cell carriers, hackers, and the messaging companies themselves. Additionally, many messaging services, including Slack and Signal, allow you to set messages in specific conversations to disappear after a certain amount of time. Note that just because an app offers “disappearing” messages doesn’t mean that they’ll necessarily actually disappear from the app’s servers—they may be invisible to users but might still remain unencrypted and vulnerable to subpoena or hackers.

+ I’m an early adopter.

Think twice before doing direct-to-consumer genetic testing.

The entire premise of these companies is, after all, to collect personal health information—and all information is theoretically vulnerable to hackers as soon as it leaves your possession. (Many of these companies also comply with subpoenas, meaning law enforcement agencies could also theoretically get access to your information in the service of solving crimes.) If you do use one of these services, make sure to spin through the privacy permissions and see what you’re giving away.

Rethink your smart speaker.

And your smart lightbulbs, and your smart toothbrush, and your smart security camera, and so on. Internet-connected “smart” devices work by constantly collecting and storing highly intimate data, and that information is not always private by default. Some security-camera companies share information with police departments; depending on your settings, your smart speaker may use your voice data—including coughs, snores, baby gurgles, and barks—to sell you more products. You may want to consider exchanging some of your devices for analog versions, or just selectively unplugging the ones you have.

Don’t focus too much on TikTok.

TikTok is owned by ByteDance, a Chinese tech conglomerate that is theoretically subject to the country’s draconian surveillance infrastructure, and that stores some U.S. user data on Chinese servers. But its data-collection policies are largely in line with those of its American counterparts, and in congressional testimony, its leadership has denied sharing user information with the Chinese government. So, in other words, there are good reasons to delete TikTok—and there’s also evidence that, despite its country of origin, it’s not much worse than other social-media apps, which also collect a mountain of data about you. This is an area where you should employ what information technologists call your “threat model”: a holistic consideration of who might realistically benefit from your data, and how they might realistically get it. If you have reason to believe Beijing is particularly interested in you, your work, or what you do on your phone—say, you’re a dissident, journalist, or U.S. government employee—you may want to delete TikTok out of an abundance of caution. But if you’re none of these things, given what we currently know, it’s probably fine to opt out of this particular category of anxiety.

Treat AI chatbots like social media.

That is, keep in mind that companies have access to whatever you type into their programs, even if it’s not being posted anywhere publicly.

Turn off tracking on your TV.

These days most TVs are “smart”: internet-enabled in order to link up with streaming services. That means they collect all kinds of data about your viewing habits for the purposes of targeting ads. You can learn how to disable this by searching online for the name of your TV with “turn off automatic content recognition.” And if you don’t need to use voice commands, you can also disable (or cover) the microphone.

Beware the no-name device.

As a general rule of thumb, says the Electronic Frontier Foundation’s Budington, companies you’ve never heard of have less of a reputational risk when it comes to compromising your privacy or security—so when buying tech devices, it’s best to stick to well-known brands.

+ I really don’t like the idea of my likeness being publicly available.

Be careful who you share intimate photos with.

Disappearing messages and encrypted apps are useful tools, but the truth is that once a photo or video leaves your phone, there’s no failsafe way to stop it from being shared. So be very careful about who you send sensitive material to—if it gets out, the person you sent it to could be why.

Cover your webcam.

It’s rare, but if your computer has been compromised, hackers may be able to remotely turn your camera on and surveil you. You can buy covers online, but a Post-it works just fine.

+ I want to limit how much advertisers can track me.

In addition to using a trackless browser, keeping an eye on your app permissions, and being judicious about smart-home devices (see “I just want to cover my bases” and “I’m an early adopter” above), you can …

Disable personalized ad tracking.

If you’ve ever gotten an eerily specific ad, you probably have personalized ad tracking to thank. This is the means by which companies assign a specific profile to your device and use it to amass a dossier of all your online behavior. You can limit this tracking by making sure your mobile ad ID is disabled—find directions by typing the name of your device’s operating system followed by “disable mobile ad ID” into a search engine—and by installing a tracker-blocking browser extension such as Disconnect or Privacy Badger on your computer. You can also change how some individual websites decide which advertisements to serve you—here are instructions in Facebook , Google , and X ; elsewhere, look for terms like interest-based advertising in a site’s privacy and/or preferences section.

Reject cookies (within reason).

Cookies are site-specific tracking: Some are necessary to make the website work better, for example by saving your login credentials, shipping information, or cart content. Other cookies don’t do much beyond observing your online behavior to help advertisers target you. Recent legislation has led websites to ask for your permission to store cookies—you’ve probably seen one of these fine-print-laden pop-ups before. Note that this is an area where privacy is pretty much directly in tension with usability, so consider the costs and benefits: If you click “Accept all,” you’re giving the site permission to collect as much information as it likes—but if you accept none, you may experience glitches. Accepting only essential cookies allows you to consent to much more limited data collection.

Clear your cookies every once in a while.

Despite this recent legislation, “cookies are still the No. 1 way people are tracked,” according to the EFF’s Budington. If you allow cookies even occasionally, make a point of deleting them regularly—think of it like rinsing off all the privacy dirt you accumulate via a life lived online. You can search for browser-specific instructions online, and even set a calendar reminder to do this on a regular basis.

Opt out of tracking across sites.

Visualize your personal information like a chain. The goal of data collection is to build a robust and detailed profile of your habits and interests, which means information gathered from an individual website or app becomes more valuable when it’s pieced together with similar data from other apps or websites. Recent versions of Apple’s and Google’s operating systems require apps to ask for your permission to do this; saying no breaks the chain with minimal effects on your experience. (On Apple, you can universally reject app tracking by turning off “allow apps to request to track” in the tracking subsection of your privacy settings.)

Opt out of data sharing from companies.

Many companies’ privacy policies allow them to share your information with third parties for marketing purposes; for example, a streaming service might sell your viewing habits to a company that will then serve you ads based on your interests. Simple Opt Out summarizes these policies for many major companies, and directs you to where you can opt out. Otherwise, you can scan a company’s privacy policies for words such as partner , affiliate , third party , advertising , and personalization .

Avoid linking services.

Remember, your information is more useful when it’s part of a chain. For example, if you use your Amazon Prime account to get discounts at Whole Foods, the company now knows not just what you buy online but when and where and how you shop offline. Similarly, connecting to services using your Google account allows them to request access to your calendar or Drive. Unlinking your accounts (or not linking them in the first place) breaks the chain.

+ I want to protect my location data.

Manage your phone’s location services.

Your mobile phone is with you at all times, and may be beaming your location to your phone’s manufacturer as well as third parties. Some amount of location tracking is manifestly helpful—for example, for weather and delivery apps—but it’s unlikely you’ll want every app tracking your location all the time, even when you’re not using it. You can manage these permissions in your phone’s privacy settings.

Be careful about location-based fitness apps.

Apps such as Strava and Nike Run Club use your precise location to track workouts. Check your settings to make sure you’re not sharing more than you mean to.

If you want to be really careful, use paper maps.

Of course, mapping apps work by tracking your location—but depending on what settings you’ve enabled, they may also store it. You can manage Google’s ability to store your location here, and if you’re going to a particularly sensitive location—say, a hospital, Army base, health clinic, or shelter—you can always use a paper map (or one accessed in incognito mode and printed out).

Don’t share your location on social media.

Apps such as Instagram, X, and BeReal allow you to share your location when you post. In some cases, this is something you opt into with each new post; in others, it’s a setting you can toggle. In either case, be thoughtful about sharing your precise location, and bear in mind that even private social-media posts can and do get screenshotted.

+ I’m a big social-media user.

Make your social-media accounts private.

Look at all of your accounts—including the ones you’re no longer active on!—and make sure that your sharing settings are set to friends only.

Audit your friends lists.

Run through your friends lists on social media and defriend anyone who you wouldn’t want knowing your updates. Don’t worry; most apps don’t notify people when they’re unfriended.

Delete old posts.

At this point, many of us have been on social media for well more than a decade—long enough to share a lot. One night when you’re feeling nostalgic, go through from the beginning and delete any posts you wouldn’t want showing up at the top of your feed today. If you still want access, you can always download or screenshot posts before you delete them.

Change up your usernames on social media.

If you reuse the same usernames, or a version of them, on multiple sites, hackers or curious people can daisy-chain them together to find accounts you may not want surfaced.

Define “social media” expansively.

Many apps that we might not consider social networks have social functions—and all the attendant privacy considerations. For example, if your Venmo account is set to public, anyone can see who you’re paying and what you’re paying them for. Depending on how you’ve configured your settings, your Spotify followers may be able to see what you’re listening to. Many fitness apps allow users to broadcast their stats and location. If an app’s settings menu includes words like sharing or activity , you may be revealing more than you intend to.

+ I’m worried about hackers.

Consider deleting yourself.

Search databases collect data from public records and sell it to users, typically for a subscription fee. Many of these sites contain highly personal information, including home address, age, and family members’ names, which can be used by hackers to sneak past security questions, and by regular creeps to be creepy. Companies such as DeleteMe scrub these databases, for a fee.

Install HTTPS everywhere.

This browser extension from the Electronic Frontier Foundation encrypts—scrambles, basically—your communication with major websites, so people can’t eavesdrop on what you do and where you go online.

Actually update your software.

Yes, this is annoying! But software updates tend to include security fixes and bug patches. Make sure you have automatic updates enabled on your phone, laptop, and smart-home devices, and make sure to reboot your devices every once in awhile if you tend to keep them on. Make sure to also enable automatic app updates on your phone and computer.

Securely back your computer up.

This is especially important for people who store photos and other priceless personal information—backing your computer up won’t prevent other people from getting their hands on your data, but it will mean you won’t lose it forever if your computer is stolen, wiped, or lost. The easiest way to do this is with an online backup service like BackBlaze or IDrive that automatically backs up your files to a password-protected website (just make sure that password’s really, really good).

+ I want to help create a more private world.

Think about paying more for your internet.

Targeted advertising is why so much of the internet is free. When you pay—for apps, for news ( ahem ), for streaming—you are in some small way lessening these companies’ dependence on tracking you to pay the bills.

Fight for better privacy laws.

Mihir Kshirsagar, who runs a clinic at Princeton’s Center for Information Technology Policy, likens privacy incursions to air pollution: “Of course, we should all be thinking about what kinds of cars we drive and how we live, but we need infrastructure to help protect us.” Privacy shouldn’t be merely a personal responsibility; it should also be a public one. If anything you’ve read here has you particularly concerned, read up on the law and contact the people or groups who have power to change it. Note that this may be your state, not your congressperson or senator. According to Kshirsagar, states have been more active on privacy matters than the federal government.

You may opt out or contact us anytime.

Zócalo Podcasts

Zócalo An ASU Knowledge Enterprise Digital Daily

What Can Sankofa Teach Us?

The popular african symbol—which means ‘return to your past’—continues to guide and inspire the black diaspora.

Over the last few decades, the African American community has embraced Sankofa—a concept that calls for people to reach back to move forward. Scholar Christel N. Temple writes about the power and promise of the Adinkra symbol. Image of the Sankofa Village Community Garden in Pittsburgh, Pennsylvania; courtesy of Yasmine Abbas, Penn State.

by Christel N. Temple | May 9, 2024

This essay publishes alongside tonight’s Zócalo and Destination Crenshaw event, “How Do You Grow a Rose From Concrete?” Register here to join the program live in-person at Crenshaw High School or virtually online at 6 p.m. PT.

Affixed on jewelry, tattoos, fabric, and home decor, and even in the pattern of wrought-iron fences in places like Washington, D.C., and Savannah, Georgia, is a heart-shaped symbol with curly circles at the top and bottom, almost like the mirroring of two S’s to make a heart.

It is one version of the popular Adinkra symbol Sankofa .

Sankofa literally means “return to your past” or “go back and fetch it.” It can also mean “it is not taboo to go back and fetch it,” which is useful as an apology (e.g., “I invoke Sankofa and wish to go back and correct what I did at yesterday’s meeting when I incorrectly accused you of wrongdoing”).

Also commonly symbolized by the outline of a bird whose head and beak are pointed backward, toward its tail, often with an egg either in the beak or nestled in the tail, Sankofa has become a cultural phenomenon. It gives a name to the African diaspora’s concerns for heritage, legacy, authenticity, and dignity—in the U.S. and beyond.

Sankofa belongs to a communication system called the Adinkera, or Adinkra, which comes from present-day Ghana and Ivory Coast—key West African regions from which African Americans’ ancestors came.

After Ghana’s independence from Britain in 1957, the country’s first prime minister, Kwame Nkrumah, instituted a national policy to revive and celebrate the Adinkra system, particularly the concept of Sankofa. Nkrumah also welcomed the descendants of enslaved Africans to repatriate, or at least visit, the nation. Martin Luther King Jr., Maya Angelou, Malcolm X, and many other artists, activists, and culturally curious African Americans began making trips to Ghana in the late 1950s, where they would have likely encountered Adinkra symbols and philosophies. Scholarship around the Adinkra started to become more visible stateside, too, beginning in 1983 with the publication of Ivory Coast anthropologist Georges Niangoran-Bouah’s The Akan World of Gold Weights .

The concept of Sankofa resonates with core aspects of African American culture and life. The ideas of “return” and “back-to-Africa” anchor African American nationalist thought. Even more pervasive in Black people’s consciousness is the endearment of Africa as a homeland. By reflecting folk narratives presenting flight as self-emancipation and escape from enslavement and oppression, Sankofa embodies a sense of love, affection, respect, and sacred remembrance that affirms African American cultural uniqueness and celebrated difference. The principle of Sankofa is a reminder that “flight” and “return” go hand in hand. Just as peace can only come from knowing one’s legacy as well as the healing power of cultural memory.

Ethiopian filmmaker Haile Gerima’s 1993 resistance-themed feature film Sankofa helped introduce the proverb to a wider audience. The multi-award-winning independent film begins in contemporary times, with a culturally unaware African American model doing a photoshoot on the same Ghana beach where the historic Elmina enslavement fort still stands. The model then travels through time to the enslavement past and discovers the sacredness of how her ancestors survived through revolts and sacrifice. Rich in themes of communalism, revolt, Pan-Africanism, and intellectual agency, Sankofa is a revolutionary vision of enslavement courage. In the years since its release, it has attracted a cult and cultural following.

The Sankofa cultural explosion continues in high schools and colleges today. In Black Studies classes, teachers introduce Sankofa to newer generations through the film and as an example of African philosophy. For many, it is a new and inspirational experience that reinforces the educational goals of historical recovery and presents the rich intellectual tradition of the African world. In practices of Black psychology, Sankofa grounds wellness and renewal in ancient wisdom. And in literary analysis, Sankofa is a paradigm that asks readers to map the ways characters of African descent travel and explore heritage homelands. This travel is often multidirectional and involves not just Africa, but also the Americas, the Caribbean, and even Europe.

But Sankofa is most visible outside of academia, in the explosion of businesses, schools, and community engagement projects that have embraced the name “Sankofa.” Represented by familiar icons (a heart, a bird) rather than some of the less familiar geometric shapes in the Adinkra, Sankofa holds immediate, recognizable visual appeal. While community institutions may not necessarily have a deep understanding of Sankofa’s precise Adinkra meaning, Sankofa has also been embraced by some as a general African/Black legacy concept that communicates that they are proud agents of a global heritage.

Consider just a sampling: Sankofa Kitchen (Dallas); Sankofa Arts Lounge (Dallas); Sankofa Research Institute (Houston); Sankofa Village for the Arts (Pittsburgh); Sankofa African and World Bazaar (Baltimore); Sankofa Church (Atlanta); Sankofa Community Discount Card (Atlanta); Sankofa Initiative (Jacksonville); Sankofa Creations Spalon (Jacksonville); Sankofa Jazz Festival (Miami); and Sankofa Soul, the sponsor of music festivals in St. Lucia, Curacao, Brooklyn, and Coney Island.

For hundreds of years, African Americans have used everything from storytelling to art to religion to keep their heritage alive in a hostile U.S. In 1991, African American archaeologists even discovered Sankofa symbols in a colonial-era African burial ground during a high-rise construction project in lower Manhattan; that site is now a national monument . Such relics from the past, like the Akan gold weights that fueled commerce for 500 years, show the depth and longevity of the ancient traditional West African roots of African Americans.

The knowledge imparted by African ancestors—an inheritance forcibly taken away, though never completely lost—has endured, yet African Americans revel in the more recent awareness of the vast Adinkra system because it is specific amidst a cultural history that largely has been a generic remembrance.

Imagine the possibilities for cultural reclamation and enrichment if the African American and diasporic communities continue to utilize not just Sankofa but the wealth of philosophies shared within the entire Adinkra system. Because among its symbols lie universal wisdom around the human capacity to heal, to repair, to renew, and to return.

Send A Letter To the Editors

Please tell us your thoughts. Include your name and daytime phone number, and a link to the article you’re responding to. We may edit your letter for length and clarity and publish it on our site.

(Optional) Attach an image to your letter. Jpeg, PNG or GIF accepted, 1MB maximum.

By continuing to use our website, you agree to our privacy and cookie policy . Zócalo wants to hear from you. Please take our survey !-->

Get More Zócalo

No paywall. No ads. No partisan hacks. Ideas journalism with a head and a heart.

IMAGES

Right to Privacy Essay
(PDF) The Right to Privacy: Part I
Right to Privacy Essay
Essay On Internet Privacy
Most Important Topics for Essay Writing
(PDF) Need for a comprehensive legislation on Right to Privacy

VIDEO

ULTRAKILL 4-1 ANY% 9.639
The American Privacy Rights Act
MP/MLA Ki Activities Hongi Track ?😱 #LawWallah #RightToPrivacy #PW
Right To Privacy Subject To Reasonable Restrictions: FM Arun Jaitley
Essay on Right to Education || Right to Education || Essay on Right to Education in English
10 line on myself /10 line essay on myself in English/@padhaipur15

COMMENTS

The Right to Privacy: Personal Freedom in The Digital Age
The right to privacy is the right to be left alone, to keep one's personal information and life choices free from unwanted intrusion or surveillance. It encompasses the right to control one's personal data, maintain confidentiality in communications, and make autonomous decisions about one's body and lifestyle. At its core, the right to privacy ...
The Right to Privacy
The right to privacy involves rules governing the collection and handling of personal data (such as credit information and medical records), the protection of physical autonomy (including the right to control personal matters), the right to limit access to oneself (for example, controlling communication and intrusion into domestic and work ...
Chapter 22: The Right of Privacy
The right of privacy—the right to be left alone, as Justice Louis Brandeis once defined it—is fundamental to our understanding of freedom, but nowhere does the Constitution mention it. When Congress submitted the Bill of Rights to the people for ratification in 1789, privacy was not listed as a liberty that required protection from government.
Privacy
The right to privacy gives an individual, ... It was in that essay that, for the first time, the right to be left alone was described as a constitutional right to privacy, in the sense that information about a person is worthy of protection even when it involves something that occurs in public (see §1.2).
Privacy matters because it empowers us all
Forget about 'smart' doorbells that violate your privacy and that of others. Write to your representatives sharing your concerns about privacy. Tweet about it. Take opportunities as they come along to inform business, governments and other people that you care about privacy, that what they are doing is not okay.
Right to Privacy: Constitutional Rights & Privacy Laws
The right to privacy refers to the concept that one's personal information is protected from public scrutiny. U.S. Justice Louis Brandeis called it "the right to be left alone." While not ...
The Right to Privacy (article)
Some decades later, in a highly cited article of his own, Melville B. Nimmer described Warren and Brandeis' essay as "perhaps the most famous and certainly the most influential law review article ever written", attributing the recognition of the common law right of privacy by some 15 state courts in the United States directly to "The Right to ...
The Concept of the Right to Privacy
Ernest Van Den Haag defines privacy as, the exclusive access of a person (or other legal entity) to a realm of his own. The right to privacy entitles one to exclude others from (a) watching, (b) utilizing, (c) invading (intruding upon, or in other ways affecting) his private realm. 39.
PDF The right to privacy in the digital age
When the right to privacy and other human rights are at odds, the proportionality principle is the main legal tool used to balance the different human rights. Then, a balancing test needs to be made, which is based on the principle of proportionality. This usually concerns interferences of the State into the rights
The Right to Privacy
The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise. 40.
right to privacy
Wade, the Court used the right to privacy, as derived from the Fourteenth Amendment, and extended the right to encompass an individual's right to have an abortion: "This right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's ...
10 Reasons Why Privacy Rights are Important
The right to privacy is a enshrined in article 12 of the Universal Declaration of Human Rights (UDHR), article 17 in the legally binding International Covenant on Civil and Political Rights (ICCPR) and in article 16 of the Convention of the Rights of the Child (CRC). Many national constitutions and human rights documents mention the […]
PDF The Right to Privacy Samuel D. Warren; Louis D. Brandeis Harvard Law
The Right to Privacy Samuel D. Warren; Louis D. Brandeis Harvard Law Review, Vol. 4, No. 5. (Dec. 15, 1890), pp. 193-220. Stable URL: http://links.jstor.org/sici?sici ...
Privacy Essay Topics (50 Ideas!)
After learning about the information that has come to light, students need the opportunity to explore their own thoughts and feelings on this important issue. These 50 new journal prompts offer students the chance to think about their own right to privacy, the government's motives for surveillance, and the ramifications of wide-scale public ...
The Right to Privacy Essay
The only thing the constitution doesn't directly give us, is our right to privacy, and our right to privacy has been a big concern lately courtesy of the National Security Agency (NSA).(#7) Although our constitution doesn't necessarily cover the privacy topic, it does suggest that privacy is a given right.
Essay on Right to Privacy
Invasion of their privacy by the media and social media users is unethical. The right to privacy is one of the fundamental rights that individuals have fought hard to have. Various policies have been dropped due to privacy issues. Celebrities should hence enjoy their right to privacy as enshrined in the Constitution.
The Right to Privacy in the Digital Age
Abstract. Recent years have seen the right to privacy, particularly as it pertains to the surveillance and interception of communications, transform from a much-neglected human rights issue to the focus of multiple UN General Assembly and Human Rights Council resolutions. Since March 2015, it has been the subject of a dedicated United Nations ...
Right to Privacy and Data Protection Under Indian Legal Regime
Privacy has emerged as a basic human right across the globe and in India too it has been recognized as a Fundamental Right under Article 21 of the Indian Consti
Right to Privacy
The right to privacy is the ability of an individual to keep their personal information and private life out of the public domain. The principle of privacy is essential to human dignity and the protection of our autonomy, dignity, and personal identity. It is a fundamental right that has been recognized by the Constitution of many countries ...
The Right to Privacy in India as a Fundamental Right [UPSC Notes]
Supreme Court rulings that gave a new meaning to Article 21. Although Article 21 does not speak specifically about the right to privacy, the Supreme Court of India, in various instances, extended the meaning of Article 21.There are many such SC rulings, but two of them are the most important.
Privacy in the Digital Age
Unfortunately, this has also brought about various challenges that must be addressed 1. Generally, information is a vital treasure in itself, and the more one has the better. Having valuable, intellectual, economic, and social information creates enormous opportunities and advantages for any individual. We will write a custom essay on your topic.
Explaining the Fourth Amendment: What counts as persons, houses, papers
This vital part of our Constitution secures Americans against unreasonable searches and seizures and is referred to often in popular culture as a privacy right. But the way it protects privacy is by securing private property. Specifically, the Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers ...
Right to Privacy Essay
Article12 of the Universal Declaration on Human Rights and Article17 of the International Covenant on Civil and Political Rights provides for the right of privacy. India is rapidly developing into a digital economy, so cybersecurity and privacy have been an issue now, i.e.,
PDF Essay On: Right to Privacy: It'S Sanctity in India
Appropriately therefore, in furtherance of this theory in his work "Essay concerning human understanding" John Locke introduces the concept of 'Tabula Rasa' which meant that the mind of the individual was a dean state and individuals were free to author ... Right to privacy is one such right which has come to its existence after ...
The Hidden-Pregnancy Experiment
It is not a coincidence that Roe v. Wade, a ruling grounded in the right to privacy, was overturned at a time when privacy in the U.S was on its conceptual deathbed. There are other legal ...
Three Simple Rules for Protecting Your Data
Three simple rules for managing your privacy. Think concretely. Rule 1. The more you conceptualize the internet as a real place, the more intuitive it becomes. Consider physical analogues to your ...
What Can Sankofa Teach Us?
This essay publishes alongside tonight's Zócalo and Destination Crenshaw event, "How Do You Grow a Rose From Concrete?" Register here to join the program live in-person at Crenshaw High School or virtually online at 6 p.m. PT.. Affixed on jewelry, tattoos, fabric, and home decor, and even in the pattern of wrought-iron fences in places like Washington, D.C., and Savannah, Georgia, is a ...

The Right to Privacy: Personal Freedom in The Digital Age

Table of contents

Cite this Essay

Related Essays

Still can’t find what you need?

Related Essays on Freedom

Related Topics

Get Your Personalized Essay in 3 Hours or Less!

Chapter 22: The Right of Privacy

“The Right to Be Let Alone”

Various Guarantees Create Zones of Privacy

Bibliography

1.1 The History of Conceptualizing the Private Sphere

2. Critiques of Privacy

3. Meaning and Value

3.3 Normative Approaches

4. Contemporary Debates

4.7 Privacy and the Datafication of Daily Life

Support SEP

Privacy is power

Right to Privacy: Constitutional Rights & Privacy Laws

Constitutional rights

Access to personal information

Online privacy

Right of publicity

Movable boundaries

Sign up for the Live Science daily newsletter now

Most Popular

The Concept of the Right to Privacy

Cite this chapter

Access this chapter

Author information

Rights and permissions

Copyright information

About this chapter

Download citation

Share this chapter

Originally published in 4 Harvard Law Review 193 (1890)

right to privacy

Griswold and the Penumbras

Justice Harlan's Concurrence in Griswold

Extending the Right to Privacy

Roe’s Overturning

Further Reading

Menu of Additional Resources

Federal Judicial Decisions

State Material

Other References and Resources

10 Reasons Why Privacy Rights are Important

#1. Privacy rights prevent the government from spying on people (without cause)

#2. Privacy rights keep groups from using personal data for their own goals

#3. Privacy rights help ensure those who steal or misuse data are held accountable

#4. Privacy rights help maintain social boundaries

#5. Privacy rights help build trust

#6. Privacy rights ensure we have control over our data

#7. Privacy rights protect freedom of speech and thought

#8. Privacy rights let you engage freely in politics

#9. Privacy rights protect reputations

#10. Privacy rights protect your finances

You may also like

16 Inspiring Civil Rights Leaders You Should Know

15 Trusted Charities Fighting for Housing Rights

15 Examples of Gender Inequality in Everyday Life

11 Approaches to Alleviate World Hunger

15 Facts About Malala Yousafzai

12 Ways Poverty Affects Society

15 Great Charities to Donate to in 2024

15 Quotes Exposing Injustice in Society

14 Trusted Charities Helping Civilians in Palestine

The Great Migration: History, Causes and Facts

Social Change 101: Meaning, Examples, Learning Opportunities

Rosa Parks: Biography, Quotes, Impact

Article Contents

The Right to Privacy in the Digital Age

Bulk data collection and retention

Mass surveillance

Email alerts

Affiliations

This Feature Is Available To Subscribers Only

Right to Privacy