Privacy and Justification (original) (raw)
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Law and Philosophy, 2010
This paper presents an argument for the value of privacy that is based on a purely negative concept of freedom only. I show that privacy invasions may decrease a person’s negative freedom as well as a person’s knowledge about the negative freedom she possesses. I argue that not only invasions that lead to actual interference, but also invasions that lead to potential interference (many cases of identity theft) constitute actual harm to the invadee’s liberty interests, and I critically examine the courts’ reliance on a principle of ‘no harm, no foul’ in recent data breach cases. Using a number of insights from the psychology of human belief, I also show that the liberal claim for protection of privacy is strengthened by the observation that often the privacy invader cannot be held responsible for the influence on the invadee’s negative freedom.
There is widespread disagreement about the terms in which privacy ought to be defined and consequently about the scope of the concept. It is said to lack coherence, leading some to question its value for practical reasoning. In this essay I argue that disagreement about privacy is, at least in part, a manifestation of disagreement about more general moral-political values that the concept of privacy is invoked to serve. Commitment to these values will lead not only to differing views on the value of privacy, but also as to the terms in which it ought to be defined. Locating accounts of privacy in political theory will e
A Democratic Right to Privacy: Political or Perfectionist?
Representation, 2011
In his important book, Democratic Rights, Corey Brettschneider argues that democracy is best understood in terms of three core values (equality of interests, political autonomy, and reciprocity), and legitimacy in terms of public reason and inclusion. I focus here on how Brettschneider treats a range of difficult conflicts involving a right to privacy. These treatments rest heavily on a Rawlsian standard of reasonableness, which I elaborate in a way that highlights the strength of Brettschneider’s approach. I then suggest that the distinction Brettschneider draws between perfectionist and political values seems less important to his approach than he avers: the attractiveness of his political liberalism relies on certain comprehensive liberal commitments.
Privacy and Republican Freedom
Privacy is a condition that serves various ends, valuable it is said, because it: is a pre-requisite for human flourishing and well-being; 1 enables one to exercise dominion over a realm of intimate decisions; 2 is a pre-condition of autonomous agency; 3 protects individuals against the misuse of personal information; 4 is integral to the proper functioning of a democracy; 5 enables subjects to develop and determine for themselves the nature of their social relationships; 6 is essential for securing respect for human dignity, 7 and so on. Notwithstanding differing emphasis when it comes to explaining the value of privacy, most of these accounts are developed -to greater and lesser degrees and in more and less explicit ways -within a framework of liberal values.
Privacy and Conformity: Rethinking “The Right Most Valued by Civilized Men”
Touro law review, 2017
In December 1890, soon after The Right to Privacy, 1 which Louis D. Brandeis penned with his former law partner Samuel D. Warren, appeared in the Harvard Law Review, Brandeis wrote to his fiancée, Alice Goldmark: Of course you are right about Privacy and Public Opinion. All law is a dead letter without public opinion behind it. But law and public opinion interact-and they are both capable of being made.. .. Our hope is to make people see that invasions of privacy are not necessarily borne-and then make them ashamed of the pleasure they take in subjecting themselves to such invasions.. .. The most perhaps that we can accomplish is to start a backfire, as the woodsmen or the prairie men do. 2 Given Brandeis' comments on privacy and public opinion, it seems safe to surmise that Goldmark had remarked on the public's seemingly insatiable appetite for gossip; implying, perhaps, that a relatively cerebral article such as The Right to Privacy could not
Reconstructive Tasks for a Liberal Feminist Conception of Privacy
William and Mary Law Review, 1999
Law. This Essay is a revised version of a paper presented at the conference "Reconstructing Liberalism," sponsored by The Institute of Bill of Rights Law and the William and Mary Department of Philosophy, held at The College of William & Mary School of Law, April 3-4, 1998. I am indebted to conference participants for helpful comments, and especially to Cynthia Ward, Kathryn Abrams, Katherine Franke, and my co-panelists Anita Allen and Neal Devins. Jim Fleming gave valuable comments on several drafts. I also benefitted from helpful discussion with my colleagues Eric Freedman and Norm Silber. Thanks to Suzanne Mikos, Bram Weber, and law librarian Connie Lenz for valuable research assistance, and to Hofstra University School of Law for generous research support.
WHY PRIVACY MATTERS? Surveillance and the Private Life
HA: The Journal of the Hannah Arendt Center, 2016
To ask the question of why privacy matters, it is important to recognize the ways in which we simply do not value privacy. Everyday we sign up for websites and offer up private information for free. We fret about government surveillance, but willfully subject ourselves to physical and virtual security checks. In short, while we say that privacy matters, our actions suggest otherwise. There are three reasons why we are willfully and willingly losing our privacy. First, privacy is inconvenient. Second, privacy is dangerous. And third, privacy is anti-democratic. Taken together, these reasons show that while we talk about the fact that we like our privacy and want to preserve our privacy, most of us are actually quite happy to give it up. I want to ask the question of what privacy is by looking at the last and perhaps only great political thinker who set privacy at the center of her thinking: Hannah Arendt. Arendt writes about privacy in nearly all her many books and essays. Privacy is part of the core of her thought. Despite this, it is largely overlooked in discussions of Arendt’s work. And so I want to try to articulate for you what is privacy for Hannah Arendt, why it matters. And what I’m going to suggest is that there is a reason that most Arendt scholars ignore her approach to privacy; this is because Arendt’s defense of privacy leads to some very uncomfortable and difficult conclusions.
The meaning of privacy has been frequently disputed in the philosophical and legal literature since Warren and Brandeis first argued for it as a distinct and important personal and social value. Nevertheless, while the meaning of privacy is held to be vague, there is general agreement that Warren and Brandeis were correct in their assessment of its value. Theorists of democracy, on the other hand, have been ambivalent towards the realm of the private. This paper interrogates the intersection between privacy and democracy, questioning the place of privacy as a distinctly democratic value. Introduction My concern in this paper is with the place a right to privacy has in a normative account of democracy. 1 One difficulty with my topic is that both privacy and democracy are highly contested ideas and so I am liable to become entangled in too many matters of definition. I am going to attempt to evade this problem by offering an account of privacy that addresses, I think, the essential worry that advocates of privacy express and one that is not overly controversial. This will not be a full definition of privacy but a partial one suited to my purposes here. With this account in hand I will then show how three alternative views of democracy place different values on privacy. I will end by arguing that only what I call full deliberative democracy requires a right to privacy as a central part of its democratic vision and, consequently, offers a democratic argument for the right to privacy. Although many countries, states, and international organisations have or advocate for a right to privacy, the idea that privacy is valuable is by no means universally accepted. Some have argued that privacy is a dated notion incompatible with modern technology, while others have argued for its limited value. I think it is important at the beginning to distinguish between what privacy amounts to and what its value is. What we value about privacy will change according to how we understand it. However, there is no easy way to say what privacy means, as is evident in the extensive philosophical and legal literature on just this topic, beginning in 1890 with Warren and Brandeis's law journal article called the " Right to Privacy ". There they argued that the right to privacy was a right to be " let alone " (Warren and Brandeis 1890, 205) and free from the invasion of the " sacred precincts of private and domestic life " (Warren and Brandeis 1890, 196). This definition of privacy has some obvious flaws. It is neither a necessary nor a sufficient condition for privacy. It confuses solitude with privacy and, as Judith Thomson notes, I can fail to let you alone by dropping a brick on your head, but in doing so I have not violated your privacy (Thomson 1975, 295). Nevertheless, it does capture one aspect of what privacy means by pointing to the idea of limited or restricted access as an important part of its definition. For the purposes of this paper, however, I will focus on a second feature of privacy that has less to do with encroachment into personal domains and more to do with restrictions on what other people and institutions know about a person. On this account, one is in a state of privacy with respect to a piece of information to the extent that others are not in a cognitive relationship with it. In other words, the fewer people who know some fact about me, the more private that information is. If no-one else knows it, then it is absolutely private.
The Right to Privacy: A Discourse-Theoretical Approach
Ratio Juris, 1998
The relative importance of the right to privacy in constitutional democracies is reconsidered on the basis of discourse theory. To this end the author does not regard privacy as an aim in itself but as a provider of freedom, and concentrates on the key role that freedom plays in discourse-theoretical constructions of constitutional democracies. That this century has witnessed an impressive growth in people's demands for the protection of their privacy seems uncontroversial; that public power often leaves these demands unheeded seems equally uncontroversial. Public power, including the power of courts, is often reluctant to give privacy a priority on the scales of interests deserving constitutional protection as fundamental rights, particularly when privacy is compared with other interests with which it often collides, such as free speech, national security or public order. This article will argue that privacy does deserve a high position, and that the failure in granting it is related to two misapprehensions concerning privacy and the role it plays in constitutional democracies. I will deal with these two misapprehensions separately.