Privacy

Bonnie McDougall. New Dictionary of the History of Ideas. Editor: Maryanne Cline Horowitz. Volume 5. Charles Scribner’s Sons, 2005.

The English words private and privacy come from the Latin privatus, meaning “withdrawn from public life, deprived of office, peculiar to oneself,” and the generally negative sense is continued into the early understanding of the English word private, whose first recorded appearance goes back to 1380. The substantive privacy is not recorded until 1450, and its further meanings of “personal relationships,” and then “intimacy” and “confidential relationships” developed even later in succeeding centuries. By the end of the nineteenth century, privacy had begun to refer to legal and political rights, associated with modernity and advanced civilization, and attributed relatively or very high value. These associations were not transferred to private in its meanings of selfish interests or property rights or access. Near-synonyms for private as a descriptor in English in other contexts include individualpersonalfamiliarfamilydomesticsecretconfidentialsecureinnerinterior, and intimate; an Elizabethan equivalent term for privacy avant la lettre is contemplation.

Many European languages do not have exact equivalents of the terms private and privacy. In Dutch, for example, the words eigen (cognate with “own”) and openbaar (cognate with “open”) are used with reference to property or access where English would use “private” and “public.” Swedish has a close equivalent for private (privat), but not for privacy. The Finnish words related to privacy, such as yksitisasia (“private or intimate affairs”), yksityinen (“private as opposed to public”) and yksityisyydensuoja (“private data protection”) are derived from the word yksi meaning “one” or “single.” Despite this etymological diversity, few English-speakers would wish to claim on linguistic grounds that concepts of privacy in the Netherlands, Sweden, or Finland are radically different from those held in the United Kingdom or United States.

Producing an adequate definition of privacy is one of the most intractable problems in privacy studies. A University of Edinburgh Ph.D. dissertation by Katherine J. Day, Perspectives on Privacy: A Sociological Analysis (1985), listed more than a hundred examples. One of the oldest definitions remains influential: Samuel Warren and Louis Brandeis’s 1890 declaration that privacy is the right of the individual to be left alone. However, its negativity and stress on the individual as the locus of privacy have had unfortunate consequences.

Alan F. Westin’s 1967 definition of privacy is the most commonly cited, but strictly speaking his is not so much a definition as a two-tier description of privacy states and privacy functions. Julie Inness’s 1992 attempt combines the aspects of control over access and the intimate nature of privacy in a three-fold definition, but it requires further definition of what is meant by “intimate” and fails to cope with non-intimate instances of privacy.

Ruth Gavison highlighted the difficulty of legal definitions of privacy in 1980, and Raymond Wacks further explored the issue in 1989. Wacks concluded that the term was so overladen with assumptions and ambiguous in terms of its use that conceptual coherence was an unreachable target. The proliferation of definitions and their unsuitability for legal purposes have therefore led some legal scholars to avoid the term privacy in formulating laws for its protection. It is highly unlikely, however, that the term will disappear from common use, since most people are content to muddle along with an imperfect but workable understanding.

The volume of studies on privacy has increased tremendously since the 1970s, especially in the United States, and their geographical spread has become wider. These studies address new topics, including celebrity privacy for political and other public figures and privacy rights in international human rights law. Developments in advanced technology, such as electronic storage and DNA testing, have added increasing urgency to the debate, while overt and covert surveillance has become the major concern of Internet sites on privacy issues.

Debates on privacy are conducted on all levels. Personal, governmental, and commercial interests are all engaged, and academic arguments are informed by perspectives from almost every discipline in the humanities and social sciences, including philosophy, politics, geography, law, economics, sociology, social policy, anthropology, literature, language, and history. Journalists and the general public profess an intuitive understanding of what constitutes privacy, but decades of research suggest that there is a wide range of meanings even within a nation-state or common language. Within given communities, variations in attitudes can be related to age, gender, economic and social standing, and ethnic origin, but significant variations can also be found among individuals where these factors are roughly the same. Nevertheless, modern societies share an understanding that privacy is intelligible as a concept among the population at large and, as such, should be explicitly protected by law or custom as a valuable or even essential attribute of civilized life.

Privacy also appears in popular journalism and academic studies as a component of subjects that range across human experience, such as a sense of self; gender and body; private space and family life; intimacy and exclusion; and the impact of globalization on local and communal identity. Privacy studies tend to focus on one or more of the following aspects: (a) a sense of privacy, as experienced by people from different countries, times, and backgrounds; (b) distinctions between public and private realms; (c) rights of privacy in national and international law; (d) the role of advanced technology in privacy protection and intrusion; (e) the functions and values of privacy.

A Sense of Privacy

The existence of a sense of privacy across different cultures and times is frequently asserted or denied on little evidence. One of the most influential studies to encourage the belief that a sense of privacy is specific to the modern Western world was The Civilizing Process: The History of Manners and State Formation and Civilization (originally published as Über den Prozess der Zivilisation in 1939) by Norbert Elias (1897-1990). Elias did not take privacy as his subject, but his comments on shame, embarrassment, delicacy, and modesty are frequently quoted by writers on privacy. His work examines the process by which a code of polite manners was formulated and disseminated between the sixteenth and eighteenth centuries in Europe, starting with the publication of De civilitate morum puerilium (On civility in children) by Desiderius Erasmus (1466?-1536) in 1530. Erasmus dealt with the changing etiquette of familiar and social life, ranging from snot (how to handle a handkerchief before and after blowing one’s nose) to urination (someone inadvertently seen urinating should not be greeted).

A large part of polite manners focused on how to accord personal space (physical or mental) to individuals (or groups of people) in which to carry out desirable or necessary activities without embarrassment to themselves or to onlookers. Elias did not assume that privacy as a goal of etiquette was unique to Europe; commenting on how meat is served and eaten, he notes that the concealment of carving behind the scenes was effected much earlier and more radically in ancient China than in the West.

Critics whose knowledge was largely confined to European and American history regarded a sense of privacy as peculiar to a specific Western economic and cultural environment. In a 1965 essay, “Literature and Post-History,” the American literary critic George Steiner (1929-) related the rise of the Western novel and its audience to the domestic privacy, leisure, and reading habits of the mercantile class of the eighteenth century, claiming that printed fiction and individual privacy were alike products of the typographical revolution. If typography is a measure of impersonality and privacy, then it would be reasonable to regard late imperial China, where moveable type was invented and where printed fiction flourished, and Korea, the first country in which moveable type passed into common use, as founders of the sense of privacy in the modern world. Historians of English literature nevertheless continued to site the development of a sense of privacy alongside long prose fiction in the eighteenth century. Works such as Privacy and Print: Reading and Writing in Seventeenth-Century England (1999) by Cecile M. Jagodzinski and Privacy: Concealing the Eighteenth-Century Self (2003) by Patricia Meyer Spacks also identified privacy as a special attribute of women, a theme that appears in many cultures under different guises, despite ample evidence to the contrary.

Anthropologists, on the other hand, produced evidence that privacy is a universal human condition whose expression is not necessarily verbal and is adaptable to specific circumstances. Interest in the existence of universal traits in human behavior peaked in the early 1980s, when conventional assumptions on cultural differences that formed research methodology from the 1920s onwards were undermined by new research in the late 1960s and 1970s that showed the differences had been exaggerated and similarities had largely been ignored; new research in linguistics and in brain-mapping gave added support.

A summary of this debate and of traits that can be categorized as universal are contained in Donald L. Brown’s Human Universals (1991). Among the characteristics of what Brown calls “Universal People” (UP) are standards of sexual modesty, sex generally in private, and discreetness in elimination of body wastes. Universal people possess a concept of the person: “They distinguish self from others, and they can see the self both as subject and object … They know that people have a private inner life, have memories, make plans, choose between alternatives, and otherwise make decisions” (p. 135). Most but not all of the lists of universal characteristics compiled by anthropologists since 1945 and summarized by Brown include privacy.

The anthropologists’ evidence became part of the background to discussions on privacy in the 1980s and 1990s. Still the belief persisted among non-anthropologists that a distinctively modern sense of privacy was an attribute of post-industrial societies. Even a philosopher as sensitive to ethnocentricity as Charles Taylor in 1981 and again in 1985 identified a sense of privacy as a defining characteristic of a specifically modern (and by assumption therefore Western) concept of self-identity. In premodern societies, according to Taylor, “One’s life was led before everyone else, and hence shame and its avoidance played a big role in people’s lives. There was no space, not just physically but psycho-socially, to withdraw into the privacy of one’s own self-estimate, or the opinions of a circle based on affinity … With the rise of the modern identity, this intensely public life withers. The community retreats, and the nuclear family achieves privacy” (pp. 261-262). In modern societies, Taylor concluded, privacy has become a requirement for the good life, a space for family affection and individual fulfillment.

Barrington Moore’s Privacy (1984) was a unique contribution to the debate in examining four widely different types of premodern societies: primitive societies, classical Athens, Hebrew society as revealed in the Old Testament, and ancient China. Much of his discussion about ancient Greece and China is on the mutual obligations of government and the populace at large, and he records the Confucian distinction between the separate realms of the state (public) and the family (private), as well as information in early texts on courtship, the family, and friendship. Starting from a narrow definition of privacy, Moore found that rights to privacy in early Confucian China were weak in comparison those enjoyed in fourth-century B.C.E. Athens. He concluded that privacy of communication was possible only in a complex society with strong liberal traditions and that in the absence of democracy, private rights are either few or undeveloped.

The spread of globalization and the inclusion of privacy rights in international law has rendered almost irrelevant the argument about Western and non-Western or modern and premodern societies, as governments in all parts of the world strive to identify themselves as modern, democratic, and based on the rule of law. Although speculation in popular opinion, journalism, and conservative nationalism continues to dwell on which societies or ethnic groups do or do not enjoy a sense of privacy, the academic debate in the 1970s and 1980s shifted to distinctions between public and private realms.

Public and Private Realms

One of the earliest modern studies of privacy was by Hannah Arendt (1906-1975), who noted the blurring of the public and private realms after Roman times. Jürgen Habermas (1929-) systematized and developed her concept of social and public life since Greek and Roman times in Strukturwandel der Öffentlicheit (1962), which became the chief source for discussion of public and private realms from the 1960s on (the English translation, The Structural Transformation of the Public Sphere, appeared in 1989). Habermas was primarily interested in the public realm but found its vitality dependent on an organization of private life that enabled and encouraged citizens to rise above private identities and concerns. Drawing on literary evidence as well as philosophers and political writers, Habermas focused on the development of the modern European polity. His distinction between mutually interpenetrating public and private spheres within a general private realm (i.e., as opposed to the state) has led to considerable confusion, but his main thesis, that modern society has undergone a transformation in which the expansion of the public sphere within the private realm has taken place at the expense of the private sphere, became a dominant theme in Western culture in the late 1960s and 1970s. To his more radical followers, the apparent triumph of the public sphere represented a post-Marxian liberation from the petty concerns of private life.

The rise of communitarianism in the late 1980s further complicated the public versus private debate, aligning the public interest with conservative values rather than political reform. The American sociologist Amitai Etzioni’s The Limits of Privacy (1999) depicted privacy in the United States as a highly privileged state that needed to be modified for the sake of common interests in public safety and public health. Paradoxically, his evidence showed that intrusions on privacy came chiefly from the private sector and that the privacy of individuals was best protected by granting more powers to governments.

The interface of public and private realms in modern Western societies is most strikingly evident in debates concerning abortion, domestic violence, and the private lives of public officials. Contrary to popular belief, no serious academic study has been able to draw a strict line between public and private realms, for reasons related to methodology and terminology. It is inherently unreasonable, for example, to expect that hard and fast borders are possible in such complex matters of political and social relationships. Studies in English, in particular, are typically confused by an ambiguity that is not necessarily present in other European languages (i.e., meanings of the attributive “‘private”‘ that do not carry over into the substantive “‘privacy”‘). Attempts in the United States to incorporate a defense of privacy into law in the 1980s highlighted problems of terminology and definition.

Rights of Privacy in National and International Law

The principle of a right of privacy was traced back to ancient Jewish law in Samuel H. Hofstadter and George Horowitz’s influential The Right of Privacy (1964). Hofstadter, a justice of the New York Supreme Court, and Horowitz, a law professor, also cited case law from European and British Commonwealth countries to show the range of codified legal rights (or their absence) current at the beginning of the 1960s. This state of affairs gradually changed after the General Assembly of the United Nations “took cognizance” of the rights of privacy as formulated in English in Article 17 of the International Covenants on Human Rights in 1960. The text of Article 17 declared that “(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation;” and “(2) Everyone has the right to the protection of the law against such interference or attacks.”

Most works on privacy written after 1960 referred at least in passing to privacy as a universal human right, despite different legal systems. For practical reasons, however, discussions on legal aspects of privacy—as in Ruth Gavison’s often-quoted study in The Yale Law Journal, “Privacy and the Limits of the Law” (1980)—tend to be country-specific. Studies of rights to privacy in law also accepted nation-states as imposing significant boundaries; although to some extent common law in England corresponds to common law in the United States, the different legal systems of Scotland and continental Europe, not to mention other parts of the world, appear to be too remote for realistic comparison. Gavison’s methodology utilized a framework distinguishing status (privacy as a situation of an individual vis-à-vis others, rather than a claim, a psychological state, or a form of control) and characteristics (related to secrecy, anonymity, and solitude) to establish what she calls “a neutral concept of privacy” that might be used for cross-cultural comparison. This attempt at a legally acceptable definition has been criticized in principle and shown to be unworkable in practice.

Rights to privacy in law and their political and ethical implications in Britain and its colony Hong Kong have been exhaustively studied by Raymond Wacks, professor of law at the University of Hong Kong, in The Protection of Privacy (1980), Personal Information: Privacy and the Law (1989), and Law, Morality, and the Private Domain (2000). A collection of essays published as a special issue of the European Human Rights Law Review in 2003, edited by Jonathan Cooper, raises cross-cultural issues such as transsexual marriage, policing, and the protection of privacy in the workplace as well as surveillance and constitutional rights. The most exhaustive global survey on rights under national and international laws is David Banisar’s Privacy and Human Rights 2000: An International Survey of Privacy Laws and Developments, jointly published by the Electronic Privacy Information Center in Washington D.C. and Privacy International in London. Both organizations operate invaluable Web sites that include news, archives, and bibliographies. Inevitably, their emphasis is on ways in which advanced technology opens up new avenues for intrusions into privacy and for its protection.

Advanced Technology: Privacy Protection and Intrusions

Alan F. Westin’s Privacy and Freedom (1967), a comprehensive work whose descriptions of privacy states and functions are cited and elaborated upon by most subsequent writers on privacy, was prompted by concern about new technologies for invading privacy in the hands of government and commercial agencies. As professor of public law and government at Columbia University, Westin occupied an influential position from which to propose changes in U.S. law. Calling for greater protection to the ordinary citizen, Westin pointed out that the tradition of limiting the surveillance powers of the authorities over the private activities of individuals and groups goes back to ancient Greece. He then dedicated over a decade’s research to collecting data and investigating attitudes towards privacy in the United States.

In Databanks in a Free Society (1972), one of the first books linking data collection with privacy, Westin and his co-author Michael A. Baker found that the scope of information collection about individuals had not yet significantly expanded as a direct result of computerization, but a National Science Foundation conference in 1979 in which Westin was a key speaker concluded that this was no longer the case. A Harris survey directed by Westin in 1979 on attitudes towards privacy in the United States, which addressed the potential abuse or misuse of personal information by business or government, identified growing public concern about the perceived erosion of privacy in the early 1970s in the United States.

Inspired by Westin’s advocacy to make the issue of data protection and privacy his life’s work, David H. Flaherty produced two pioneering surveys, Privacy and Data Protection: An International Bibliography (1984) and Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States (1989). The former lists 1,862 Western-language works (books, articles, and government reports) published between 1978 and 1983 concerning Canada, the Federal Republic of Germany, France, Sweden, the United Kingdom, the United States, and the rest of the world. An impressive number of U.S. works on threats to information privacy followed, including Managing Privacy: Information Technology and Corporate America (1994) by H. Jeff Smith, Privacy and Its Invasion (1995) by Deckle McClean, The Culture of Surveillance (1997) by William G. Staples, Technology and Privacy: The New Landscape (1997) edited by Philip E. Agre and Marc Rotenberg, and The Electronic Privacy Papers (1998) edited by Bruce Schneier and David Baniser. Most of these works regarded surveillance and data collection as necessary evils in modern life against which the citizen should be warned and equipped with appropriate measures, including individual acts of resistance as well as pressure on corporate and stage agencies.

The most aggressive defense of privacy against intrusion from government and corporate interests was Gini Graham Scott’s Mind Your Own Business: The Battle for Personal Privacy (1995). It contains detailed accounts of privacy cases in the United States since the 1960s, relating to employment, police surveillance, media intrusion, medical and health issues, and medical and insurance records. Scott is unequivocally opposed to court decisions that favor employers, the media, schools, the law courts, and the police. He alerts readers to grounds on which privacy may or may not be protected in law, provides an appendix listing computer privacy bulletin boards, and gives his own address for further communication.

Compared to the United States, pressure groups in the United Kingdom were slow to react to privacy intrusions. Although one of the first works on the subject, Private Lives and Public Surveillance (1973) by James B. Rule, warned of the consequences, public safety concerns permitted the proliferation of surveillance technology, so that by the end of the twentieth century more closed-circuit television (CCTV) cameras were installed in shops and public places in the United Kingdom than anywhere else in the world. A guide to the new Data Protection Act of 1984 by Richard Sizer and Philip Newman noted that the act does not mention privacy as an issue, and that privacy was not a legal right under English law. Attempts to incorporate a bill of rights, including privacy rights, into law in the 1980s and 1990s were rebuffed with claims that English common law afforded greater protection. However, works such as The Governance of Privacy: Policy Instruments in Global Perspective (2002) by Colin J. Bennett and Charles D. Raab show that by the beginning of the twenty-first century the mood had changed dramatically in the United Kingdom as well as in countries throughout the world.

New privacy issues arose in the 1990s with the adoption of DNA technology in preventive and forensic medicine. Mark A. Rothstein’s Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (1997) and Graham Laurie’s Genetic Privacy: A Challenge to Medico-Legal Norms (2002) are ground-breaking investigations on matters such as the disposal of body parts by hospitals for medical research and the status of the right to know—or not to know—one’s individual medical records by the person concerned, by their families, by insurance companies, or by other interested agencies. Public outrage at intrusions into genetic privacy in the United States and United Kingdom demonstrates its close relation to questions of personal identity and the body, an area distinctly more emotional than intrusions via databases, surveillance devices, and Internet tracking. It is hardly surprising that the last three decades before the turn of the twenty-first century saw an unprecedented level of scrutiny of the nature, value, and functions of privacy.

The Psychological Functions and Philosophical Values of Privacy

According to the most prominent researcher on philosophical aspects of privacy, Ferdinand Schoeman, there was no major philosophical discussion on the value of privacy until the late 1960s. By 1968, another philosopher, Charles Fried, noted that the literature on privacy was “enormous,” as psychologists and sociologists joined in the debate. Hannah Arendt’s The Human Condition (1958) set out some of the basic functions of privacy: Privacy guarantees psychological and social depth, containing things that cannot withstand the constant presence of others on the public scene; it undergirds the public by establishing boundaries, which fix identity; and it preserves the sacred and mysterious spaces of life. Some phenomena are different if they are not private: confessions of shame or guilt made public become boastful; over-disclosure becomes false; terror, a guilty secret; love and goodness are destroyed.

Westin’s Privacy and Freedom (1967) refined Arendt’s analysis by introducing a two-tier definition of privacy, combining personal and social dimensions and consisting of four states (anonymity, reserve, solitude, and intimacy) plus four functions of privacy (personal autonomy, emotional release, self-evaluation, and limited and confidential communication). Westin is a firm universalist: Margaret Mead’s famous proclamation that Samoans lacked a sense of privacy or shame is shown to be based on a restrictive understanding of the varied mechanisms of privacy, where speaking softly is as valid a mechanism as physical avoidance. Westin pointed out that that even animals seek periods of individual seclusion or small-group intimacy. He also acknowledged rights of privacy to organizations in areas such as medical and business confidentiality, jury deliberations, executive privilege, and the secrets of the confessional.

Writing in 1977, Carl D. Schneider related the sense of privacy to the sense of shame in his Shame, Exposure, and Privacy. He listed phenomena where privacy is related to dignity: the use of nicknames or formal names; the names of relatives; things that carry the weight of the individual’s identity or autonomy; faces and other body parts; things needed to care for the body such as soap, towels, and combs. The open display of bodily functions (defecating, great pain, the process of dying) threatens dignity, revealing an individual vulnerable to being reduced to bodily existence; the function of privacy and shame is to preserve wholeness and integrity. Bodily functions (sexual activities, sleep and excretion; illness, suffering, and eating) are rarely physiological processes alone. People invest all their activities with meanings, so that the physiological is invariably permeated with the human; the obscene is a deliberate violation of the sense of shame and privacy. Human relationships demand a pattern of mutual and measured self-disclosure. The private world is both a realm that is valued for oneself as a retreat, and one of which we are suspicious in other people; it is of lesser value than the public world. Totalitarian regimes are opposed to respect for persons, and thus deny privacy; when society does not provide for privacy, being apart will take the form of hiding.

The Private Me (1980), by June Noble and William Noble, anticipated the obsession with “me” that is said to characterize the 1980s. It is a crusading work, seeing privacy under threat from intrusions by family as well as government and society, and offering advice on ways to foster privacy through developmental programs including encounter groups and other forms of self-taught or group therapy. 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 (glamorized as candor) 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 trivialized: What is important is kept private (for example, lovemaking). Children develop a sense of privacy from the age of eight years on and need privacy to develop fulfilling sex lives.

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.

The most original attempt to provide a comprehensive account of privacy in the 1990s was Privacy, Intimacy, and Isolation (1992) by the philosopher Julie Inness. Inness constructed a definition of privacy from data on cases under tort and constitutional law in the United States, covering three areas: access to intimate information about the agent; access to intimate aspects of the agent’s person; and autonomy in the agent’s decisions about intimate matters. Although it requires further definition of what is meant by “intimate” and fails to acknowledge nonintimate dimensions of privacy, the emphasis on control and access makes it one of the most useful definition to date.

Inness is also unusually systematic on the question of values, stressing that privacy is rarely if ever given primary status in conflict with other values. Arendt and Westin both had previously pointed out limitations to privacy. According to Westin, “the individual’s desire for privacy is never absolute, since participation in society is an equally powerful desire” (1967, p. 7). Inness adds a feminist perspective, pointing out that privacy protection may act as a mechanism for maintaining the dominance of groups or individuals in power and enforcing silence and helplessness on others.

With some outstanding exceptions, 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, Western or otherwise. A countertrend may be starting with the publication of three books on privacy in China: Private Life Under Socialism: Love, Intimacy, and Family Change in a Chinese Village, 1949-1999 (2003) by Yan Yunxiang; Chinese Concepts of Privacy, edited by Bonnie S. McDougall and Anders Hansson (2002); and Love-Letters and Privacy in Modern China: The Intimate Lives of Lu Xun and Xu Guangping (2002) by Bonnie S. McDougall. Among insights raised by these studies is the often-ignored fact that privacy is more frequently a condition shared by lovers, families, or friends than one experienced alone by a single individual. As concluded in the preface to Chinese Concepts of Privacy, “The apparent chaos in privacy studies is a reflection of real-life complexity and will not be resolved by including more cultures in the debate. But by taking Chinese and other non-Western cultures into account, a global understanding of privacy will help to clarify crucial issues such as universal awareness of privacy and universal privacy rights” (McDougall and Hansson, p. 24).