Parent, William A.

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Santa Clara University School of Law

Santa Clara High Technology Law JournalVolume 11 | Issue 1 Article 4January 1995Privacy: A Brief Survey of the ConceptualLandscapeWilliam A. ParentFollow this and additional works at: http://digitalcommons.law.scu.edu/chtljPart of the Law CommonsThis Symposium is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara High Technology Law Journal by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationWilliam A. Parent, Privacy: A Brief Survey of the Conceptual Landscape, 11 Santa Clara High Tech. L.J. 21 (1995).Available at: http://digitalcommons.law.scu.edu/chtlj/vol11/iss1/4PRIVACY: A BRIEF SURVEY OF THECONCEPTUAL LANDSCAPEWilliam A. ParenttPrivacy is a notoriously elusive concept. And the family of con-cepts to which it belongs is extraordinarily rich in complexity. Sur-veying this complexity will serve to underscore the philosophicaldifficulties that attend serious discussions about the nature and valueof privacy. Giving a rough conceptual overview of the notions com-monly associated with privacy may enable us to think more clearlyabout each one of them and about their relationships with one another.I also hope that this introduction will help to isolate those conceptsmost relevant to the implementation of IVHS.One of the oldest definitions of "privacy" identifies it with thecondition of being let alone. Warren and Brandeis propose this char-acterization in their "The Right to Privacy"' and Justice Brandeis'well-known dissent in Olmstead v. U.S.2 argues that the right to be letalone is our most valued entitlement. Several other legal scholars ad-vocate this broad view of privacy. Posner, for instance, claiins thatone sense of privacy is captured by the concept of seclusion and seclu-sion serves our interest in being left alone.'Unquestionably, privacy and being let alone are close relatives,but should they be equated? Suppose that individual B hits A. B hasnot let A alone. What do we gain in conceptual clarity, though, bysaying that B has invaded A's privacy? Are there not other conceptswhich more perspicaciously describe B's action against A, like assaultand harassment? Of course if B had followed his assault by searchingthe dazed A's wallet and finding out that A was in psychotherapy fordepression, then we would have compelling reason to accuse B of aninvasion of privacy.Another popular conception of privacy identifies it with the con-trol of information about oneself. Thus, Alan Westin maintains thatprivacy is the claim of individuals, groups or institutions tO determineCopyright 1995 by the author.f Assocfate Professor of Philosophy, Santa Clara University, Santa Clara, California.1. Samuel D. Warren and Louis B. Brandeis, The Right to Privacy, 4 HARv. L. REv. 193,195, 205 (1890).2. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).3. RicHARD PosN.R, THE EcoNMomcs OF JUSTICE 272 (1981).22 COMPUTER & HIGH TECHNOLOGY LAW JOURNALfor themselves when, how, and to what extent information about themis communicated to others.' And Richard Wasserstrom, in discussingthe Daniel Ellsberg case (where members of the so called "Plumbers'Squad" broke into the office of former defense department employeeEllsberg's psychiatrist searching for embarrassing information abouthim) writes: "here, it seems to me, the root issue captured by the ideaof privacy is that of control that an individual will be able to maintainover information about himself or herself."'But is it just any kind of information about someone whose ac-quisition diminishes her privacy? Should we say that anytime I walkor eat in public my privacy is thereby compromised?To remedy this difficulty some have suggested that privacy bedefined as the control over personal information about ourselves.6But consider the following case. A person is comatose. His doctorand family refuse to allow anyone to see him. They do this to safe-guard his privacy; yet no comatose person can control personal infor-mation about himself.Maybe privacy is better conceived as the control over access tooneself?. On this view, privacy is understood to function like a bound-ary process whereby people can make themselves accessible to othersor close themselves off.7But, again, it would seem that individuals in a coma can mean-ingfully be said to have privacy - when others make them cognitivilyinaccessible to others - even though they themselves lack control oversuch access. And there is also the scenario in which A invents a pow-erful X-ray device that enables her to look through walls. A pointsthis device towards my home but declines to use it. Since she enjoysthe power to discover virtually everything I am doing in my home itcannot truly be said that I retain control over personal informationabout myself vis-a-vis A with respect to actions done in my home.Nevertheless A does not actually invade my privacy until she activatesthe device.For those who believe that the concepts of privacy and access areintimately related, the connection may be thought to be correctly cap-tured by defining the former as the limitation of access to oneself. I4. ALAN F. Wmwn, PRIVACY AND FREEDOM 7 (1970).5. Richard Wasserstrom, The Legal and Philosophical Foundation of the Right to Pri-vacy, Bio MEDicAL Ermcs 109, 110 (Thomas Mappes and Janc Zembaty, eds. 1981).6. Charles Fried, Privacy, 77 YALE L. J. 475, 483 (1968); Hyman Gross, Privacy andAutonomy, in NoMos XIII: PRiVACY 169, 170 (J. Roland Pennock and John W. Chapman, eds.,1971.)7. See Irwin Altman, Privacy Regulations: Cultually Universal or Culturally Specific?33 THE J. oF Soc. Issus 66, 67 (1977).[Vol. 11THE CONCEPTUAL L4NDSCAPEbelieve that this is roughly how Anita Allen conceives of privacy.'Ruth Gavison endorses it as well,9 as does Jeffrey Reiman in his essayfor this volume."Access" is ambiguous. It sometimes means physical contact orproximity but it is also used to connote the acquisition of knowledgeabout a person. The difficulty with definitions of "privacy" in termsof making physical contact is that we have more accurate terms withwhich to describe this behavior, including trespass and the loss of re-pose. Defenders of privacy as the limitation on cognitive access con-front the following problem. A taps B's phone and overhears severalof B's conversations thereby uncovering some intimate details abouthim. Official constraints, though, have been placed on A's snooping -e.g. she must get prior authorization from a judge. So there are limitsof A's cognitive access to B. But do we want to say that under thesecircumstances B retains his privacy?In response to the above counter examples I proposed the follow-ing characterization of privacy. It is the condition of a person's hav-ing undocumented personal information about herself not known toothers.10 Undocumented information consists of all facts about some-one that are not part of the public record and as such available forpublic inspection. "Personal information" designates facts either thatmost people in a given culture choose not to reveal about themselves(except to close friends, family, counselors, etc.) or about which aparticular person is especially sensitive and which therefore he doesnot choose to reveal about himself (except to close friends, family,etc.).One difficulty with my account is. its implication that a person'sdiscovering an obscure fact about my life that is publicly available in,say, old newspapers does not constitute a loss of privacy for me evenif the discovery is published again and millions of people read aboutit.Two more recent conceptions of privacy merit brief mention. Ju-lie Inness defines it as the person's having control over their entirerealm of intimate decisions, including decisions about physical accessto oneself, cognitive access to oneself, and intimate behaviors." Inti-macy in turn, is conceived as a function of motivation from love, lik-ing, or care.8. ANrrA L. AuLaN, UNEAsY Accss 3 (1988).9. Ruth Gavison, Privacy and the Limits of the Law 89, YALE L. J. 421, 428 (1980).10. William A. Parent, Recent Work on the Concept of Privacy, 20 Am. PmL. Q. 341,346-347 (1983); William A. Parent, A New Definition of Privacy for the Law, 2 L. Am PriM_ 305,306-09 (1983).11. JUE C. INNSS, PRIVACY, INTIMACY, AM ISOLATION 7 (1992).1995]24 COMPUTER & HIGH TECHNOLOGY LAW JOURNAL [Vol. I But could not a person have this kind of control without havingmuch privacy because, for instance, her every move at home is beingmonitored by the use of powerful snooping technology without herknowledge? And might not our comatose patient have a good mea-sure of privacy despite his total lack of autonomy with regard to inti-mate matters?Ferdinand Schoeman suggests that privacy be conceived as thesystem of norms which facilitate personal expression within domainsofprivate life. 2 But we have once again to ask whether it isn't possi-ble for us to have little or no privacy notwithstanding the presence ofsuch norms. Thus someone might be stealthily observing me expres-sing myself in bed under a system of laws that encourages suchexpression.Perhaps we should begin to suspect that Schoeman's definition,like several of the others we have examined, confounds privacy withthe closely related but distinct idea of liberty?Schoeman's proposal brings to mind one of the conceptions ofprivacy that the Supreme Court now embraces. Mr. Justice Stevenscharacterizes it as independence in making certain kinds of importantdecisions.3 In an earlier case Mr. Justice Brennan formulated it thus:If the right to privacy means anything, it is the right of the individ-ual, single or married to be free from unwarranted government in-trusion in the matters so fundamentally affecting a person as thedecision whether to bear or beget a child.14But does not the intrusion that concerns the Court in cases involvingthe criminal prohibition of contraception and abortion have essentiallyto do with liberty or freedom of choice and not privacy?The second conception of privacy mentioned by Stevens pertainsto the disclosure of personal matters.'5 It is the privacy at stake inmany Fourth Amendment cases. It is also the second of William Pros-ser's four privacy torts 6 and is certainly one of the values imperiled incases like Sidis v. F-R Publishing Corp. 17Prosser maintains that "the law of privacy comprises four distinctkinds of invasion of four different interests of the plaintiff - whichinterests have almost nothing in common except that each represents12. FaEmR~N D. SCHOEMAN, PRIVACY AM SOCLAL FREEDOM 19 (1992).13. Whalen v. Roe, 429 U.S. 589, 599 (1977).14. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).15. Whalen, 429 U.S. at 606.16. William L. Prosser, Privacy 48 CAi. L. REv. 383, 392-98 (1960).17. See 113 F. 2d 806 (2d Cir. 1940). Discussed in Prosser's essay, id., 392-93 and 397.THE CONCEPTUAL LANDSCAPEan interference with the right of the plaintiff to be let alone."18 Inaddition to the disclosure wrong there is intrusion upon the plaintiff'sseclusion or solitude, or into his private affairs. This tort is exempli-fied by the case of a young man who intruded upon a woman givingbirth. The woman did not know the intruder and was very disturbedby his uninvited presence.19But should we describe every instance of this kind as a privacyinvasion? If a soundtrack disturbs my peace or repose do we needalso to condemn it in privacy terms? What do we gain in conceptualclarity by doing so?The third of Prosser's torts is publicity that places the plaintiff ina false light in the public eye.20 Yet privacy, one would think, quitedistinctively concerns certain kinds of facts that are known about aperson. A taxi driver who sues because a: photograph of his face waspublished in an article on the cheating propensities of cab drivers2should articulate his grievance on grounds of libel and defamation, notprivacy.Prosser's fourth tort is appropriation for the defendant's advan-tage of the plaintiff's name or likeness.22 However, since this form ofappropriation does not involve finding out personal facts about indi-viduals mustn't one question whether it has anything to do with pri-vacy properly conceived? Should not cases like Pollark v.Photographic Corp., in which a photographer took plaintiff's pictureand put it on sale without her consent, be handled instead under theright of property? And if the gravamen of petitioner's complaint con-cerns the perception of her choice, then ought not it be stated in thelanguage of liberty rather than privacy?Two additional concepts in the privacy family come fromSupreme Court search and seizure analyses. The first is that of plainview and it essentially means that "the Fourth Amendment providesprotection to the owner of every container that conceals its contentsfrom plain view and doesn't otherwise unmistakably reveal its con-tents."23 This doctrine would seem to offer some legal protection tooccupants of automobiles who, for example, have tinted windows.The second Fourth Amendment privacy concept is that of openfields. In Mr. Justice Holmes' words: "The special protection ac-18. Prosser, supra note 16, at 389.19. Id. The case is DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881).20. Id. at 398-401.21. Peay v. Curtis Pub. Co., 78 F.Supp. 305 (D.D.C. 1948).22. Prosser, supra note 16, at 401-07.23. United States v. Ross, 456 U.S. 798, 822-23 (1982).1995]26 COMPUTER & HIGH TECHNOLOGY LAW JOURNALcorded -by the Fourth Amendment to the people in their persons,houses, papers, and effects' is not extended to the open fields. Thedistinction between the latter and the house is as old as the commonlaw."'24 That individuals may not legitimately demand privacy for ac-tivities conducted out of doors in places cognitivily accessible to thepublic would seem to have direct implications for the implementationlVHS.The final concept in the privacy family deserving of brief men-tion makes a conspicuous appearance in the Warren and Brandeis es-say. They write: The principle which protects personal writings andall other personal productions, not against theft and physical appropri-ation, but against publication in any form, is in reality not the principleof private property, but that of an inviolate personality."'  JeffreyReiman uses similar language in his more recent defense of privacy:Privacy is a social ritual by means of which an individual's moraltitle to his existence is conferred. Privacy is an essential part of thecomplex social practice by means of which the social group recog-nizes - communicates to the individual - that his existence is hisown. And this is a precondition of personhood.6So I conclude with two queries: Is privacy indeed necessary toprotect, or even an essential component of, our moral inviolability?;and does IVHS in any way pose a threat to that privacy andinviolability?24. Hester v. U.S., 265 U.S. 57, 59 (1924). See also Oliver v. U.S., 466 U.S. 170 (1984).25. Privacy, supra note 1, at 205.26. Jeffery Reiman, Privacy, Intimacy, and Personhood 6 Pim. An Put. AFi., 26, 39(1976).[Vol. I11

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