(Part One)Computers didn't kill privacy.
Facebook CEO Mark Zuckerberg didn't kill privacy.
So who killed privacy? We all did, of course. Accidentally, perhaps.
Or maybe, like the fairies in Peter Pan, privacy only lived as long as we continued to believe in it.
—Simon Chesterman – Dean of the National University of Singapore Faculty of Law
The notion of privacy is not a modern one. It dates back to earliest times. The reasons we choose to limit our contact with others have expanded from preferring to defecate or copulate away from prying eyes to refusing to disclose irrelevant details about ourselves on applications forms that only a few years ago potential employers considered it their right to ask for. But then again everything’s more complex these days. Take pockets. Nowadays no one thinks of pockets as anything significant but once they were. Once the only way you could really keep anything private was by keeping it on your person:
In the 1700’s, people would see symbolic and associated meanings in objects that the modern person finds completely neutral. For example, putting a letter into one’s pocket was at the time a very intimate gesture, which was a way of feeling and showing great affection. Since pockets were so close to the body—on the skin, actually, since underwear was not common—they usually caught the scent of their owner. Furthermore, reaching for a woman’s pocket meant that the hand was to be put under the slits of the skirt and close to her pelvic area. Therefore accessing them was thought very intimate, even when performed by the woman herself. – Pockets and (female) privacy: the 18th century compared with today, I Am No Pickpocket
The problems people’s desire for privacy cause are nothing new. In eighteenth-century England privacy wasn’t merely thought of as a problem but as an actual threat. Women reading alone and people hiding their true thoughts from one another in conversation generated fears of uncontrollable fantasies and profound anxieties about insincerity. People hid behind common rules of etiquette to mask their innermost feelings. There was no TV: gossip was a major source of entertainment and without privacy to invade where would be the fun in that?
Times change. With the establishment of a national postal service in the late 18th century, photography’s ability to capture intimate moments and the growth of the tabloid newspaper industry—whose raison d'être is to make private things public—the establishment began to crumble. Secrets were no longer safe in pockets or lockets or even behind closed doors.
Privacy regulation in Continental Europe is derived from 17th and 18th century laws of honour and insult which is where we find a marked difference between how privacy laws were drawn up in the States as opposed to Europe. ‘The Right to Privacy’ which was written in 1890 and is regarded as probably the most influential law-review article ever written, was produced as a direct response to what its authors regarded as an unprecedented assault against privacy by the news media. Prior to this a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Privacy and confidentiality are not the same thing although, of course, they are related. Here, though, we notice the difference between how Americans at that time viewed privacy compared to their Continental cousins: when an American was looking for a bit of me time what they were in fact saying was “leave me alone,” whereas, in Europe, an individual seeking some privacy was actually demanding people’s “respect”; the difference between liberty on the one hand and dignity on the other. Neither, of course, fully encompasses the concept of privacy.
It’s noteworthy that only a hundred years earlier when the US Bill of Rights was drafted the only mention of anything like privacy was in the Fourth Amendment which explicitly affirms 'the right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures'. Anything other than that wasn’t obviously thought to be worth legislating against. It wasn’t until the UN Charter of 1948 that the word ‘privacy’ started to get the kind of attention it deserves with the Universal Declaration of Human Rights:
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. – Article 12
The question is: what exactly does ‘privacy’ mean in this context? It’s only after this that academics really started to take an interest in coming up with a universal definition of privacy. Prior to that it was mainly of interest to novelists and philosophers.
In 1967 Alan Westin identified four types of privacy. He was actually a Professor of Public Law and not a psychologist as I’d expected when I first started researching this subject. Why would lawyers be interested in privacy? I thought. I can be terribly naïve. Anyway in his book Privacy and Freedom he defined these four types:
- solitude: the state of being free from observation of others
- intimacy: the state of being with another person but free from the outside world
- anonymity: the state of being unknown even in a crowd
- reserve: the state in which a person employs psychological barriers to control unwanted intrusion
By 1970 N.J. Marshall had proposed two additional categories in addition to Westin’s original four: Not Neighbouring (combining negative attitudes towards neighbours and little or no involvement with neighbours) and Seclusion which dealt with the visual and auditory seclusion provided by the home and a tolerance for being alone. (Can’t find much about her online.)
In 1975 Irwin Altman, an environmental psychologist, put forward his privacy regulation theory to account for the fact that people’s need for privacy and their levels of privacy varied and should vary:
According to Altman, if we effectively control the openness and closedness of self to others (i.e., make ourselves more or less available to others) in response to our desire and the environment, we can function better in society than those who cannot. In order to regulate our privacy (i.e., social interaction) successfully, we need to use a variety of behavioural mechanisms such as verbal, paraverbal and non-verbal behaviour, environmental mechanisms of territoriality and personal space, etc. By combining these behavioural mechanisms (i.e., techniques), we can effectively express our desired privacy level to others in order to achieve the optimum level of privacy. – Wikipedia
And in 1979 psychologist Darhl Pedersen looked again at the various classifications of privacy, expanding Westin’s original four to six types by adding one and splitting one:
b1. intimacy with familyb2. intimacy with friendse. isolation (as a way of life to differentiate it from temporary solitude)
I personally think that intimacy should be split between social and sexual especially these days when people have friends with benefits.
In turn Pedersen identified several privacy function factors—reasons why people sought privacy—and noted that there was both commonality and uniqueness of the factors across the six kinds of privacy. Westin had proposed four factors: personal autonomy, emotional release, self-evaluation and limited and protected communication. Pedersen’s alternatives were contemplation, autonomy, rejuvenation, confiding, creativity, disapproved consumptions, recovery, catharsis, and concealment. Others have offered slightly different breakdowns.
In their book, The Private Me, published in 1980, June and William Noble noted a shift in the perception of privacy amongst Generation Me, a general devaluation of the need for privacy:
Among examples of modern devaluations in privacy, Noble and Noble noted that until the late twentieth century, diaries, letters and biographies were regarded as private legacy bequeathed by the deceased to family, and chart the growth of straight autobiography as distinct from the novel as fictionalized autobiography. They deplore compulsive self-disclosure (glamorised as candour) and over-disclosure, not only because it becomes boring, but also because it looks for sympathy as against creating intimacy or developing self-awareness. Reticence, on the other hand, encourages limited or protected communication, while privacy keeps emotions and acts from being trivialised: What is important is kept private (for example, lovemaking)...
Noble and Noble emphasized the link between privacy and power: Privacy allows or asserts power, and power confers privacy. Privacy in modern America has become a luxury, indicating status; lack of privacy among the poor and in the workplace leads to stress, and lack of assertiveness means that important boundaries cannot be established. Privacy is resisted by calling it "selfishness"; shyness in modern America is regarded as synonymous with worthlessness but can be seen instead as sensitivity and perceptiveness.
It’s also interesting to note that “most researchers on privacy are located in the United States and focus on contemporary U.S. experience; relatively little has been produced about other modern societies.” I don’t think one needs read too much into that though.
In 1983 a new term appeared on the block: informational self-determination. The term was coined by the German Federal Constitutional Court and it reflects Westin’s broad definition of privacy which was:
The right of the individual to decide what information about himself should be communicated to others and under what circumstances.
The German court went on to say that privacy is not only an important fundamental right but also a precondition to a democratic society.
In 1984 Ruth Gavison, an Israeli Law professor, streamlined her definition of privacy reducing it to three basic elements:
− Solitude: control over one’s interpersonal interactions with other people.− Confidentiality: control over other people’s access to information about oneself.− Autonomy: control over what one does, i.e., freedom of will.
Gavison also emphasised the role of control in privacy management, and that genuine control requires both an abundance of options to choose from and the power to ensure that one’s choice is respected by others.
In 1997, in her book In Pursuit of Privacy: Law, Ethics, and the Rise of Technology the philosopher Judith DeCew proposed that privacy is best understood as cluster concept covering interest in control over:
- information about oneself,
- access to oneself, both physical and mental, and
- one's ability to make important decisions about family and lifestyle in order to be self-expressive and to develop varied relationships
These three interests are related because in each of the three contexts threats of information leaks, threats of control over our bodies, and threats to our power to make our own choices about our lifestyles and activities all make us vulnerable and fearful that we are being scrutinized, pressured or taken advantage of by others. Privacy has moral value because it shields us in all three contexts by providing certain freedom and independence — freedom from scrutiny, prejudice, pressure to conform, exploitation, and the judgment of others.
But the matter has still not been resolved. Daniel J. Solove ’s 2008 book, Understanding Privacy , attempts to characterise and understand the complex and contradictory modern views and approaches to privacy. He settles on six general principles:
- the right to be let alone — Samuel Warren and Louis Brandeis’ famous formulation of the right to privacy;
- limited access to the self — the ability to shield oneself from unwanted access by others;
- secrecy — the concealment of certain matters from others;
- control over personal information — the ability to exercise control over information about oneself;
- personhood — the protection of one’s personality, individuality, and dignity; and
- intimacy — control over, or limited access to, one’s intimate relationships or aspects of life.
I doubt even this can be considered a definitive definition.
Things have moved on quite a bit since Westin’s original conception of privacy appeared in print. There was no Internet and nothing like the degree of surveillance that there is today. Words like ‘dataveillance’ never existed—Roger Clarke coined that one in the 1980s—and GPS meant “Got It, Played It, Sent It” as well as seventy-one other things that have nothing to do with tracking people. Technology has changed everyone’s focus. Echelon is a covert global satellite network said to have the ability to intercept all phone, fax, and e-mail messages in the world. That’s scary. I walked down the town yesterday. Christ knows how many security cameras I appeared on. Personally I don’t get too uptight about them and as far as the Internet goes I still retain a high level of control about what people get to know about me. The bottom line is that I don’t have to go online if I don’t choose to and I don’t have to leave the privacy of my flat if I don’t want to. I have that freedom still. When I’m walking outside I’m not being ‘me’ though. Even now I’m not being ‘me’. I’m wearing a social mask, a persona to use Jung’s term (‘persona’ means ‘dramatic character’ or ‘mask’). In Race and Culture Robert Park said:
It is probably no mere historical accident that the word person, in its first meaning, is a mask. It is rather recognition of the fact that everyone is always and everywhere, more or less consciously, playing a role… It is in these roles that we know each other; it is in these roles that we know ourselves.
According to Erving Goffman (who wrote The Presentation of Self in Everyday Life), the persona involves dramatic ways to convey behaviour and particular impressions. Being oneself is attached to a performance, the basic purpose being to manipulate in order to attain a desirable outcome. That’s nothing new. We’ve known that since Shakespeare wrote As You Like It. My friend Vito also tells me that in The Merry Wives of Windsor he also wrote: “Fie! Privacy? Fie!” Make of that what you will but we thought it was interesting. The point I’m making is that if we imagine that privacy has somehow been eroded away in the 21st century then we need to think again. Solitude may be harder to achieve especially in some cities where overcrowding is becoming a problem but, telepaths excepted, no one can read our minds yet and that’s where we set the levels of how private we choose to be.
Privacy is dead, get over it – Scott McNealy, CEO of Sun Microsystems in 2001
All the above makes thought-provoking reading. Privacy clearly involves far more that merely being left alone in a physical sense. I think my own need for privacy is a functional privacy. Writing, for me, requires complete focus and any outside influence is potentially dangerous. I work in a bubble. I need that bubble to function. One of the questions they always ask you at interview is whether you work better on your own or as a part of a group. I can work as a part of a group but the fact is that even as a part of a group I tend to work on my own within the bounds of that group dynamic; allocate me my duties, give me my timeframe, my budget, the tools to do the job and leave me alone to get on with it.
Privacy is clearly not a simple thing and it looks like a more appropriate expression for how I am is a ‘rather reserved chappie’ as opposed to suggesting that I’m simply a ‘private person’. At least as far as my writing goes. It’s all semantics. Reserve is rooted in Georg Simmel’s concept of “mental distance”: the combination of “reciprocal reserve and indifference” that is exhibited during social interaction to “protect the personality.” There are other times when I do want to physically isolate myself from others and fade into blissful anonymity. I can do that in the real world except where my writer’s world intersects with that real world; thankfully most of my writer’s world is a virtual one or at least a cerebral one.
I see privacy as valuable. I said that at the start of this essay but it was this quote from Charles Fried that helped me make sense of what I was really saying when I said that I valued my privacy:
It is my thesis that privacy is not just one possible means among others to insure some other value, but that it is necessarily related to ends and relations of the most fundamental sort: respect, love, friendship and trust. Privacy is not merely a good technique for furthering these fundamental relations; rather without privacy they are simply inconceivable. They require a context of privacy or the possibility of privacy for their existence.
There are things that I have told my wife that I have told no one else; secrets I have shared. They were private things ergo they became valuable things. I’ve given her a lot of presents over the years, things one could place a monetary value on—flowers, chocolates, jewellery—but personal things have a sentimental value, impossible to quantify. How do you feel when you friend says, “Can I tell you a secret?” It is one way in which we measure our friendships. If nothing was private what would I have to share? And it works the other way too. By not wanting to know everything I’m thinking and doing my wife shows her respect for my privacy and confers value on it. The exchange rate fluctuates but private things are never valueless or worthless. How could they be when every experiences costs us and sometimes dearly?
James Rachels, Why Privacy is Important
Michael Boyle, A Shared Vocabulary for Privacy
Valerie Steeves, Reclaiming the Social Value of Privacy
Bonnie S. McDougall, Concepts of Privacy in English
Alexander Rosenberg, Privacy as a Matter of Taste and Right
Leysia Palen and Paul Dourish, Unpacking “Privacy” for a Networked World
Knowing more about privacy makes users share less with Facebook and Google – A SimplicityLabTM Consumer Research Survey
There are also a whole host of short articles relating to the legal definition of privacy here.
 Warren and Brandeis, ‘The Right to Privacy’, Harvard Law Review, Vol. IV, December 15, 1890, No. 5
 Alan Westin, Privacy and Freedom
 Ruth Gavison, ‘Privacy and the Limits of Law’, in F. Schoeman ed. Philosophical Dimensions of Privacy: An Anthology, p.346
 Kristopher Nelson, ‘Daniel Solove’s six general types of privacy’, in inpropriapersona.com, Summer 2011