The Origin and Evolution of Privacy
The seminal paper on rights to privacy in American common law, authored by Samuel Warren and Louis Brandeis, traced the evolution of a right to life from a basic set of rights to security and protections from physical harms to broader protections of what they called an ‘inviolate personality’, including the right to be let alone. The roots of inviolate personality were in Romantic thought about individuals’ struggles to assert themselves against social pressures, which Warren and Brandeis built upon, arguing that privacy is the moral basis for the law’s support of the individual’s independence, dignity and integrity as a unique and self-determining being.
Edward Bloustein expanded on this, seeing the concept of inviolate personality as the link connecting the Prosser privacy torts, Fourth Amendment constitutional protections against unreasonable searches, and Brandeis’ dissent in Olmstead (a 1928 US Supreme Court judgment that affirmed the constitutionality of wiretapping without a search warrant, which was later overturned in 1967). Bloustein argued that a breach of privacy goes beyond contingent harms such as distress and mental suffering, and is instead an intrusion into the dignity of the person. This notion of privacy as protecting the inviolate personality became a cornerstone of the evolving right to privacy.
The Meaning and Value of Privacy
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. However, with the rise of smart devices, data collection, and technological surveillance, those old worries now seem quite innocent. Recent technology has led to previously unimagined ways of obtaining information about people, observing them, listening in on their conversations, monitoring their activities and locating their whereabouts.
These technological changes have fundamentally altered social practices, as 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. At the same time, there have been radical changes in the relation between the sexes, as well as an intrusion of intimacy into the public realm through the open portrayal and display of previously private themes in (social) media. These developments suggest that the rules protecting privacy today have been driven by concerns in different political and social areas.
Philosophers and legal theorists have long debated the precise meaning and value of privacy. There is no single definition, as the concept has broad historical roots in various discourses. Descriptive accounts have attempted to describe what is in fact protected as private, while normative accounts have defended privacy’s moral value and the extent to which it should be protected. The debate has centered on whether privacy should be protected as a conventional interest, a moral right, or a legal right.
The Right to Privacy
The seminal essay by Warren and Brandeis laid the foundation for the concept of a right to privacy, which they defined as the “right to be let alone”. They argued that existing law could be used to protect the privacy of the individual, citing “political, social, and economic changes” and the recognition of the right to be left alone. Focusing on the increasing publicity enabled by the burgeoning newspaper industry and new inventions like 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 believed that the right to privacy was already part of common law dealing with the protection of one’s home, but new technology made it important to explicitly recognize this protection. 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.
Over time, the right to privacy was advanced to the status of a human right. Article 12 of the 1948 Universal Declaration of Human Rights enshrined the right to privacy, prohibiting “arbitrary interference with his privacy, family, home or correspondence”. This right was later reflected in other international treaties, such as the International Covenant on Civil and Political Rights (1966) and the European Convention on Human Rights (1950).
In Europe, the right to privacy has evolved significantly, with the German Constitutional Court’s 1983 ruling on the constitutionality of the Census Act designating the right to privacy as informational self-determination. This was followed by the European Union’s adoption of the Data Protection Directive in 1995, and later the General Data Protection Regulation (GDPR) in 2016, which imposed significant fines on companies failing to comply with data protection principles.
In the US, the most significant focus has been on decisional privacy, the right to make decisions (e.g., regarding one’s body) without interference from others. The constitutional right to privacy was first recognized in Griswold v. Connecticut (1965), which overturned convictions for distributing contraceptive-related information. This right was later used to justify a woman’s right to have an abortion in Roe v. Wade (1973). However, the 2022 Dobbs v. Jackson Women’s Health Organization decision overruled Roe v. Wade, arguing that the constitution does not recognize a right to abortion.
Critiques and Debates
Reductionist critiques of privacy have challenged the notion of privacy as a distinct concept, arguing that privacy claims can be adequately explained in terms of violations of other rights, such as property rights or rights over the person. Theorists like Judith Jarvis Thomson have suggested that the “right to privacy” is merely a cluster of other rights, and that there is no need to find a common element in these rights.
In contrast, coherentist approaches have defended privacy as having intrinsic value and a distinct moral basis. Thinkers like Thomas Scanlon have argued that we have special interests in being free from certain kinds of intrusions that cannot be reduced to other rights. The control-based approach, championed by theorists like Alan Westin and Charles Fried, has emphasized privacy as control over information about oneself, enabling the shaping of meaningful relationships and the exercise of personal autonomy.
Communitarian critiques have questioned the individualistic focus of many privacy theories, arguing that privacy should be understood in terms of community-based practices and duties rather than individual rights. Feminist theorists have criticized the classical liberal conception of privacy as a patriarchal construct that reinforces the subordination of women in the domestic sphere.
Contemporary Debates and Challenges
Contemporary debates on privacy are multifaceted, with discussions around the role of privacy in an increasingly datafied world, the relationship between privacy and security, and the social and political dimensions of privacy. The rise of new technologies, such as the Internet of Things, health apps, and mass surveillance, have raised significant concerns about informational privacy, as well as the ability to control one’s personal data and digital identity.
Theorists have also explored the concept of group privacy, arguing that privacy protections should extend beyond the individual to the level of social groups and collectives. The social dimensions of privacy have been emphasized, with scholars highlighting privacy’s role in enabling social relationships, democratic participation, and political autonomy.
Debates have also centered on the power dynamics underlying privacy, with marginalized groups being disproportionately vulnerable to privacy violations. The concept of “data colonialism” has been used to critique the exploitative and discriminatory practices of data collection and surveillance by powerful corporations and governments.
Overall, the many debates surrounding privacy demonstrate its central importance in personal, social, and political life. As technological advancements continue to transform the ways in which we interact with information and each other, the need to rethink and reinvent privacy protections becomes increasingly critical for safeguarding individual and collective freedoms.
