Privacy

Privacy may be lessened by surveillance – in this case through CCTV.

Privacy is the ability of an individual or group to seclude themselves, or information about themselves, and thereby express themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but share common themes. When something is private to a person, it usually means that something is inherently special or sensitive to them. The domain of privacy partially overlaps security (confidentiality), which can include the concepts of appropriate use, as well as protection of information. Privacy may also take the form of bodily integrity.[1]

The right not to be subjected to unsanctioned invasion of privacy by the government, corporations or individuals is part of many countries' privacy laws, and in some cases, constitutions. All countries have laws which in some way limit privacy. An example of this would be law concerning taxation, which normally require the sharing of information about personal income or earnings. In some countries individual privacy may conflict with freedom of speech laws and some laws may require public disclosure of information which would be considered private in other countries and cultures. This was a major concern in the United States, with the Supreme Court passage of Citizens United.

Privacy may be voluntarily sacrificed, normally in exchange for perceived benefits and very often with specific dangers and losses, although this is a very strategic view of human relationships. For example, people may be ready to reveal their name if that allows them to promote trust by others and thus build meaningful social relations.[2] Research shows that people are more willing to voluntarily sacrifice privacy if the data gatherer is seen to be transparent as to what information is gathered and how it is used.[3] In the business world, a person may volunteer personal details (often for advertising purposes) in order to gamble on winning a prize. A person may also disclose personal information as part of being an executive for a publicly traded company in the USA pursuant to federal securities law.[4] Personal information which is voluntarily shared but subsequently stolen or misused can lead to identity theft.

The concept of universal individual privacy is a modern construct primarily associated with Western culture, British and North American in particular, and remained virtually unknown in some cultures until recent times. According to some researchers, this concept sets Anglo-American culture apart even from Western European cultures such as French or Italian.[5] Most cultures, however, recognize the ability of individuals to withhold certain parts of their personal information from wider society—closing the door to one's home, for example.

The distinction or overlap between secrecy and privacy is ontologically subtle, which is why the word "privacy" is an example of an untranslatable lexeme,[6] and many languages do not have a specific word for "privacy". Such languages either use a complex description to translate the term (such as Russian combining the meaning of уединение—solitude, секретность—secrecy, and частная жизнь—private life) or borrow from English "privacy" (as Indonesian privasi or Italian la privacy).[6] The distinction hinges on the discreteness of interests of parties (persons or groups), which can have emic variation depending on cultural mores of individualism, collectivism, and the negotiation between individual and group rights. The difference is sometimes expressed humorously as "when I withhold information, it is privacy; when you withhold information, it is secrecy."

Concepts

A broad multicultural literary tradition going to the beginnings of recorded history discusses the concept of privacy.[7] One way of categorizing all concepts of privacy is by considering all discussions as one of these concepts:[7]

  1. the right to be let alone
  2. the option to limit the access others have to one's personal information
  3. secrecy, or the option to conceal any information from others
  4. control over others' use of information about oneself
  5. states of privacy
  6. personhood and autonomy
  7. self-identity and personal growth
  8. protection of intimate relationships

Right to be let alone

In 1890 the United States jurists Samuel D. Warren and Louis Brandeis wrote The Right to Privacy, an article in which they argued for the "right to be let alone", using that phrase as a definition of privacy.[8] There is extensive commentary over the meaning of being "let alone", and among other ways, it has been interpreted to mean the right of a person to choose seclusion from the attention of others if they wish to do so, and the right to be immune from scrutiny or being observed in private settings, such as one’s own home.[8] Although this early vague legal concept did not describe privacy in a way that made it easy to design broad legal protections of privacy, it strengthened the notion of privacy rights for individuals and began a legacy of discussion on those rights.[8]

Limited access

Limited access refers to a person’s ability to participate in society without having other individuals and organizations collect information about them.[9]

Various theorists have imagined privacy as a system for limiting access to one’s personal information.[9] Edwin Lawrence Godkin wrote in the late 19th century that "nothing is better worthy of legal protection than private life, or, in other words, the right of every man to keep his affairs to himself, and to decide for himself to what extent they shall be the subject of public observation and discussion."[9][10] Adopting an approach similar to the one presented by Ruth Gavison[3] 9 years earlier,[11] Sissela Bok said that privacy is "the condition of being protected from unwanted access by others—either physical access, personal information, or attention."[9][12]

Control over information

Control over one's personal information is the concept that "privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."[13][14] Charles Fried said that "Privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves. Nevertheless, in the era of big data, control over information is under pressure.[15]

States of privacy

Alan Westin defined four states—or experiences—of privacy: solitude, intimacy, anonymity, and reserve. Solitude is a physical separation from others.[16] Intimacy is a "close, relaxed, and frank relationship between two or more individuals" that results from the seclusion of a pair or small group of individuals.[16] Anonymity is the "desire of individuals for times of 'public privacy.'"[16] Lastly, reserve is the "creation of a psychological barrier against unwanted intrusion"; this creation of a psychological barrier requires others to respect an individual's need or desire to restrict communication of information concerning himself or herself.[16]

In addition to the psychological barrier of reserve, Kirsty Hughes identified three more kinds of privacy barriers: physical, behavioral, and normative. Physical barriers, such as walls and doors, prevent others from accessing and experiencing the individual.[17] (In this sense, "accessing" an individual includes accessing personal information about him or her.)[17] Behavioral barriers communicate to others—verbally, through language, or non-verbally, through personal space, body language, or clothing—that an individual does not want them to access or experience him or her.[17] Lastly, normative barriers, such as laws and social norms, restrain others from attempting to access or experience an individual.[17]

Secrecy

Privacy is sometimes defined as an option to have secrecy. Richard Posner said that privacy is the right of people to "conceal information about themselves that others might use to their disadvantage".[18][19]

In various legal contexts, when privacy is described as secrecy, a conclusion if privacy is secrecy then rights to privacy do not apply for any information which is already publicly disclosed.[20] When privacy-as-secrecy is discussed, it is usually imagined to be a selective kind of secrecy in which individuals keep some information secret and private while they choose to make other information public and not private.[20]

Personhood and autonomy

Privacy may be understood as a necessary precondition for the development and preservation of personhood. Jeffrey Reiman defined privacy in terms of a recognition of one's ownership of his or her physical and mental reality and a moral right to his or her self-determination.[21] Through the "social ritual" of privacy, or the social practice of respecting an individual's privacy barriers, the social group communicates to the developing child that he or she has exclusive moral rights to his or her body—in other words, he or she has moral ownership of his or her body.[21] This entails control over both active (physical) and cognitive appropriation, the former being control over one's movements and actions and the latter being control over who can experience one's physical existence and when.[21]

Alternatively, Stanley Benn defined privacy in terms of a recognition of oneself as a subject with agency—as an individual with the capacity to choose.[22] Privacy is required to exercise choice.[22] Overt observation makes the individual aware of himself or herself as an object with a "determinate character" and "limited probabilities."[22] Covert observation, on the other hand, changes the conditions in which the individual is exercising choice without his or her knowledge and consent.[22]

In addition, privacy may be viewed as a state that enables autonomy, a concept closely connected to that of personhood. According to Joseph Kufer, an autonomous self-concept entails a conception of oneself as a "purposeful, self-determining, responsible agent" and an awareness of one's capacity to control the boundary between self and other—that is, to control who can access and experience him or her and to what extent.[23] Furthermore, others must acknowledge and respect the self's boundaries—in other words, they must respect the individual's privacy.[23]

The studies of psychologists such as Jean Piaget and Victor Tausk show that, as children learn that they can control who can access and experience them and to what extent, they develop an autonomous self-concept.[23] In addition, studies of adults in particular institutions, such as Erving Goffman's study of "total institutions" such as prisons and mental institutions,[24] suggest that systemic and routinized deprivations or violations of privacy deteriorate one's sense of autonomy over time.[23]

Self-identity and personal growth

Privacy may be understood as a prerequisite for the development of a sense of self-identity. Privacy barriers, in particular, are instrumental in this process. According to Irwin Altman, such barriers "define and limit the boundaries of the self" and thus "serve to help define [the self]."[25] This control primarily entails the ability to regulate contact with others.[25] Control over the "permeability" of the self's boundaries enables one to control what constitutes the self and thus to define what is the self.[25]

In addition, privacy may be seen as a state that fosters personal growth, a process integral to the development of self-identity. Hyman Gross suggested that, without privacy—solitude, anonymity, and temporary releases from social roles—individuals would be unable to freely express themselves and to engage in self-discovery and self-criticism.[23] Such self-discovery and self-criticism contributes to one's understanding of oneself and shapes one's sense of identity.[23]

Intimacy

In a way analogous to how the personhood theory imagines privacy as some essential part of being an individual, the intimacy theory imagines privacy to be an essential part of the way that humans have strengthened or intimate relationships with other humans.[26] Because part of human relationships includes individuals volunteering to self-disclose some information, but withholding other information, there is a concept of privacy as a part of the process by means of which humans establish relationships with each other.[26]

James Rachels advanced this notion by writing that privacy matters because "there is a close connection between our ability to control who has access to us and to information about us, and our ability to create and maintain different sorts of social relationships with different people."[26][27]

Privacy can mean different things in different contexts; different people, cultures, and nations have different expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.

Personal privacy

Most people have a strong sense of privacy in relation to the exposure of their body to others. This is an aspect of personal modesty. A person will go to extreme lengths to protect this personal modesty, the main way being the wearing of clothes. Other ways include erection of walls, fences, screens, use of cathedral glass, partitions, by maintaining a distance, beside other ways. People who go to those lengths expect that their privacy will be respected by others. At the same time, people are prepared to expose themselves in acts of physical intimacy, but these are confined to exposure in circumstances and of persons of their choosing. Even a discussion of those circumstances is regarded as intrusive and typically unwelcome.

Physical privacy could be defined as preventing "intrusions into one's physical space or solitude."[28] This would include concerns such as:

  • Preventing intimate acts or hiding one's body from others for the purpose of modesty; apart from being dressed this can be achieved by walls, fences, privacy screens, cathedral glass, partitions between urinals, by being far away from others, on a bed by a bed sheet or a blanket, when changing clothes by a towel, etc.; to what extent these measures also prevent acts being heard varies
  • Video, of aptly named graphic, or intimate, acts, behaviors or body parts
  • Preventing searching of one's personal possessions
  • Preventing unauthorized access to one's home or vehicle
  • Medical privacy, the right to make fundamental medical decisions without governmental coercion or third-party review, most widely applied to questions of contraception

An example of the legal basis for the right to physical privacy is the U.S. Fourth Amendment, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures".[29] Most countries have laws regarding trespassing and property rights also determine the right of physical privacy.

Physical privacy may be a matter of cultural sensitivity, personal dignity, and/or shyness. There may also be concerns about safety, if for example one is wary of becoming the victim of crime or stalking.[30] Civil inattention is a process whereby individuals are able to maintain their privacy within a crowd.

Informational

Information or data privacy refers to the evolving relationship between technology and the legal right to, or public expectation of, privacy in the collection and sharing of data about one's self. Privacy concerns exist wherever uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. In some cases these concerns refer to how data are collected, stored, and associated. In other cases the issue is who is given access to information. Other issues include whether an individual has any ownership rights to data about them, and/or the right to view, verify, and challenge that information.

Various types of personal information are often associated with privacy concerns. Information plays an important role in the decision-action process, which can lead to problems in terms of privacy and availability. First, it allows people to see all the options and alternatives available. Secondly, it allows people to choose which of the options would be best for a certain situation. An information landscape consists of the information, its location in the so-called network, as well as its availability, awareness, and usability. Yet the set-up of the information landscape means that information that is available in one place may not be available somewhere else. This can lead to a privacy situation that leads to questions regarding which people have the power to access and use certain information, who should have that power, and what provisions govern it. For various reasons, individuals may object to personal information such as their religion, sexual orientation, political affiliations, or personal activities being revealed, perhaps to avoid discrimination, personal embarrassment, or damage to their professional reputations.

Financial privacy, in which information about a person's financial transactions is guarded, is important for the avoidance of fraud including identity theft. Information about a person's purchases, for instance, can reveal a great deal about their preferences, places they have visited, their contacts, products (such as medications) they use, their activities and habits, etc. In addition to this, financial privacy also includes privacy over the bank accounts opened by individuals. Information about the bank where the individual has an account with, and whether or not this is in a country that does not share this information with other countries can help countries in fighting tax avoidance.

Internet privacy is the ability to determine what information one reveals or withholds about oneself over the Internet, who has access to such information, and for what purposes one's information may or may not be used. For example, web users may be concerned to discover that many of the web sites which they visit collect, store, and possibly share personally identifiable information about them. Similarly, Internet email users generally consider their emails to be private and hence would be concerned if their email was being accessed, read, stored or forwarded by third parties without their consent. Tools used to protect privacy on the Internet include encryption tools and anonymizing services like I2P and Tor.

Medical privacy Protected Health Information OCR/HIPAA (Health Insurance Portability and Accountability Act of 1996) allows a person to withhold their medical records and other information from others, perhaps because of fears that it might affect their insurance coverage or employment, or to avoid the embarrassment caused by revealing medical conditions or treatments. Medical information could also reveal other aspects of one's personal life, such as sexual preferences or proclivity. A right to sexual privacy enables individuals to acquire and use contraceptives without family, community or legal sanctions.

Political privacy has been a concern since voting systems emerged in ancient times. The secret ballot helps to ensure that voters cannot be coerced into voting in certain ways, since they can allocate their vote as they wish in the privacy and security of the voting booth while maintaining the anonymity of the vote. Secret ballots are nearly universal in modern democracy, and considered a basic right of citizenship, despite the difficulties that they cause (for example the inability to trace votes back to the corresponding voters increases the risk of someone stuffing additional fraudulent votes into the system: additional security controls are needed to minimize such risks).

Corporate privacy refers to the privacy rights of corporate actors like senior executives of large, publicly traded corporations. Desires for corporate privacy can frequently raise issues with obligations for public disclosures under securities and corporate law.

Organizational

Government agencies, corporations, groups/societies and other organizations may desire to keep their activities or secrets from being revealed to other organizations or individuals, adopting various security practices and controls in order to keep private information confidential. Organizations may seek legal protection for their secrets. For example, a government administration may be able to invoke executive privilege[31] or declare certain information to be classified, or a corporation might attempt to protect valuable proprietary information as trade secrets.[29]

Spiritual and intellectual

The earliest legislative development of privacy rights began under British common law, which protected "only the physical interference of life and property." Its development from then on became "one of the most significant chapters in the history of privacy law."[32] Privacy rights gradually expanded to include a "recognition of man's spiritual nature, of his feelings and his intellect."[32] Eventually, the scope of those rights broadened even further to include a basic "right to be let alone", and the former definition of "property" would then comprise "every form of possession—intangible, as well as tangible." By the late 19th century, interest in a "right to privacy" grew as a response to the growth of print media, especially newspapers.[32]

History

Privacy has historical roots in philosophical discussions, the most well-known being Aristotle's distinction between two spheres of life: the public sphere of the polis, associated with political life, and the private sphere of the oikos, associated with domestic life.[33] More systematic treatises of privacy in the United States did not appear until the 1890s, with the development of privacy law in America.[33]

Technology

Advertisement for dial telephone service available to delegates to the 1912 Republican convention in Chicago. A major selling point of dial telephone service was that it was "secret", in that no operator was required to connect the call.

As technology has advanced, the way in which privacy is protected and violated has changed with it. In the case of some technologies, such as the printing press or the Internet, the increased ability to share information can lead to new ways in which privacy can be breached. It is generally agreed that the first publication advocating privacy in the United States was the article by Samuel Warren and Louis Brandeis, "The Right to Privacy", 4 Harvard Law Review 193 (1890), that was written largely in response to the increase in newspapers and photographs made possible by printing technologies.[34][35]

New technologies can also create new ways to gather private information. For example, in the United States it was thought that heat sensors intended to be used to find marijuana-growing operations would be acceptable. However, in 2001 in Kyllo v. United States (533 U.S. 27) it was decided that the use of thermal imaging devices that can reveal previously unknown information without a warrant does indeed constitute a violation of privacy.[36]

Generally the increased ability to gather and send information has had negative implications for retaining privacy. As large-scale information systems become more common, there is so much information stored in many databases worldwide that an individual has no practical means of knowing of or controlling all of the information about themselves that others may have hold or access. Such information could potentially be sold to others for profit and/or be used for purposes not known to or sanctioned by the individual concerned. The concept of information privacy has become more significant as more systems controlling more information appear. Also the consequences of privacy violations can be more severe. Privacy law in many countries has had to adapt to changes in technology in order to address these issues and, to some extent, maintain privacy rights. But the existing global privacy rights framework has also been criticized as incoherent and inefficient. Proposals such as the APEC Privacy Framework have emerged which set out to provide the first comprehensive legal framework on the issue of global data privacy.

There are various theories about privacy and privacy control. The Invasion Paradigm defines privacy violation as the hostile actions of a wrongdoer who causes direct harm to an individual. This is a reactive view of privacy protection as it waits until there is a violation before acting to protect the violated individual, sometimes through criminal punishments for those who invaded the privacy of others. In the Invasion Paradigm this threat of criminal punishment that is supposed to work as deterrent. The Secrecy paradigm defines a privacy invasion as someone’s concealed information or hidden world being revealed through surveillance. The Negative Freedom Paradigm views privacy as freedom from invasion rather than a right, going against the more popular view of a "right to privacy." Finally, the Inaccessibility Paradigm states that privacy is the state where something is completely inaccessible to others. Daniel Solove, a law professor at George Washington University also has a theory of privacy. He believes that a conceptualized view of privacy will not work because there is no one core element. There are many different, interconnected elements involved in privacy and privacy protection. Therefore, Solove proposes looking at these issues from the bottom up, focusing on privacy problems. People may often overlook the fact that certain elements of privacy problems are due to the structure of privacy itself. Therefore, the architecture must change wherein people must learn to view privacy as a social and legal structure. He also states that people have to redefine the relationship between privacy and businesses and the government. Participation in certain privacy elements of the government and businesses should allow people to choose whether they want to be a part of certain aspects of their work that could be considered privacy invasion.

Internet

The Internet has brought new concerns about privacy in an age where computers can permanently store records of everything: "where every online photo, status update, Twitter post and blog entry by and about us can be stored forever", writes law professor and author Jeffrey Rosen.[37]

This currently has an effect on employment. Microsoft reports that 75 percent of U.S. recruiters and human-resource professionals now do online research about candidates, often using information provided by search engines, social-networking sites, photo/video-sharing sites, personal web sites and blogs, and Twitter. They also report that 70 percent of U.S. recruiters have rejected candidates based on internet information. This has created a need by many to control various online privacy settings in addition to controlling their online reputations, both of which have led to legal suits against various sites and employers.[37]

The ability to do online inquiries about individuals has expanded dramatically over the last decade. Facebook for example, as of August 2015, was the largest social-networking site, with nearly 1,490 million members, who upload over 4.75 billion pieces of content daily. Over 83.09 million accounts were fake. Twitter has more than 316 million registered users and over 20 million are fake users. The Library of Congress recently announced that it will be acquiring—and permanently storing—the entire archive of public Twitter posts since 2006, reports Rosen.[37]

Importantly, directly observed behaviour, such as browsing logs, search queries, or contents of the Facebook profile can be automatically processed to infer secondary information about an individual, such as sexual orientation, political and religious views, race, substance use, intelligence, and personality.[38][39] Effectively, individual views and preferences can be revealed even if they were not directly expressed or indicated (e.g. by stating their political views on their Facebook profile, or visiting a gay community website).

According to some experts, many commonly used communication devices may be mapping every move of their users. Senator Al Franken has noted the seriousness of iPhones and iPads having the ability to record and store users' locations in unencrypted files,[40] although Apple denied doing so.[41]

Andrew Grove, co-founder and former CEO of Intel Corporation, offered his thoughts on internet privacy in an interview published in May 2000:[42]

Privacy is one of the biggest problems in this new electronic age. At the heart of the Internet culture is a force that wants to find out everything about you. And once it has found out everything about you and two hundred million others, that's a very valuable asset, and people will be tempted to trade and do commerce with that asset. This wasn't the information that people were thinking of when they called this the information age.

Actions which take away privacy

As with other concepts about privacy, there are various ways to discuss what kinds of processes or actions remove, challenge, lessen, or attack privacy. In 1960 legal scholar William Prosser created the following list of activities which can be remedied with privacy protection:[43][44]

  1. Intrusion into a person’s private space, own affairs, or wish for solitude[43]
  2. Public disclosure of personal information about a person which could be embarrassing for them to have revealed[43]
  3. Promoting access to information about a person which could lead the public to have incorrect beliefs about them[43]
  4. Encroaching someone’s personality rights, and using their likeness to advance interests which are not their own[43]

Building from this and other historical precedents, Daniel J. Solove presented another classification of actions which are harmful to privacy, including collection of information which is already somewhat public, processing of information, sharing information, and invading personal space to get private information.[45]

Collecting information

In the context of harming privacy, information collection means gathering whatever information can be obtained by doing something to obtain it.[45] Surveillance is an example of this, when someone decides to begin watching and recording someone or something, and interrogation is another example of this, when someone uses another person as a source of information.[45]

Aggregating information

It can happen that privacy is not harmed when information is available, but that the harm can come when that information is collected as a set then processed in a way that the collective reporting of pieces of information encroaches on privacy.[46] Actions in this category which can lessen privacy include the following:[46]

  • data aggregation, which is connecting many related but unconnected pieces of information[46]
  • identification, which can mean breaking the de-identification of items of data by putting it through a de-anonymization process, thus making facts which were intended to not name particular people to become associated with those people[46]
  • insecurity, such as lack of data security, which includes when an organization is supposed to be responsible for protecting data instead suffers a data breach which harms the people whose data it held[46]
  • secondary use, which is when people agree to share their data for a certain purpose, but then the data is used in ways without the data donors’ informed consent[46]
  • exclusion is the use of a person's data without any attempt to give the person an opportunity to manage the data or participate in its usage[46]

Information dissemination

Count not him among your friends who will retail your privacies to the world.

— Publilius Syrus

Information dissemination is an attack on privacy when information which was shared in confidence is shared or threatened to be shared in a way that harms the subject of the information.[46]

There are various examples of this.[46] Breach of confidentiality is when one entity promises to keep a person’s information private, then breaks that promise.[46] Disclosure is making information about a person more accessible in a way that harms the subject of the information, regardless of how the information was collected or the intent of making it available.[46] Exposure is a special type of disclosure in which the information disclosed is emotional to the subject or taboo to share, such as revealing their private life experiences, their nudity, or perhaps private body functions.[46] Increased accessibility means advertising the availability of information without actually distributing it, as in the case of doxxing.[46] Blackmail is making a threat to share information, perhaps as part of an effort to coerce someone.[46] Appropriation is an attack on the personhood of someone, and can include using the value of someone's reputation or likeness to advance interests which are not those of the person being appropriated.[46] Distortion is the creation of misleading information or lies about a person.[46]

Invasions

Invasion of privacy is a different concept from the collecting, aggregating, and disseminating information because those three are a misuse of available data, whereas invasion is an attack on the right of individuals to keep personal secrets.[46] An invasion is an attack in which information, whether intended to be public or not, is captured in a way that insults the personal dignity and right to private space of the person whose data is taken.[46]

An intrusion is any unwanted entry into a person's private personal space and solitude for any reason, regardless of whether data is taken during that breach of space.[46] "Decisional interference" is when an entity somehow injects itself into the personal decision making process of another person, perhaps to influence that person's private decisions but in any case doing so in a way that disrupts the private personal thoughts that a person has.[46]

Right to privacy

Privacy uses the theory of natural rights, and generally responds to new information and communication technologies. In North America, Samuel D. Warren and Louis D. Brandeis wrote that privacy is the "right to be let alone" (Warren & Brandeis, 1890) focuses on protecting individuals. This citation was a response to recent technological developments, such as photography, and sensationalist journalism, also known as yellow journalism.[47]

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified .... as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and the potentially nosey human operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting in the Fair Information Practice Principles.

Definitions

In recent years there have been only few attempts to clearly and precisely define a "right to privacy." Some experts assert that in fact the right to privacy "should not be defined as a separate legal right" at all. By their reasoning, existing laws relating to privacy in general should be sufficient.[48] Other experts, such as Dean Prosser, have attempted, but failed, to find a "common ground" between the leading kinds of privacy cases in the court system, at least to formulate a definition.[48] One law school treatise from Israel, however, on the subject of "privacy in the digital environment", suggests that the "right to privacy should be seen as an independent right that deserves legal protection in itself." It has therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.[48]

An individual right

Alan Westin believes that new technologies alter the balance between privacy and disclosure, and that privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes four states of privacy: solitude, intimacy, anonymity, and reserve. These states must balance participation against norms:

Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives. — Alan Westin, Privacy and Freedom, 1968[49]

Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association and expression.

David Flaherty believes networked computer databases pose threats to privacy. He develops 'data protection' as an aspect of privacy, which involves "the collection, use, and dissemination of personal information". This concept forms the foundation for fair information practices used by governments globally. Flaherty forwards an idea of privacy as information control, "[i]ndividuals want to be left alone and to exercise some control over how information about them is used".[50]

Richard Posner and Lawrence Lessig focus on the economic aspects of personal information control. Posner criticizes privacy for concealing information, which reduces market efficiency. For Posner, employment is selling oneself in the labour market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud.[51] For Lessig, privacy breaches online can be regulated through code and law. Lessig claims "the protection of privacy would be stronger if people conceived of the right as a property right", and that "individuals should be able to control information about themselves".[52] Economic approaches to privacy make communal conceptions of privacy difficult to maintain.

A collective "value" and a "human right"

There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component in the functioning of democratic societies.[53] Amitai Etzioni suggests a communitarian approach to privacy. This requires a shared moral culture for establishing social order.[54] Etzioni believes that "[p]rivacy is merely one good among many others",[55] and that technological effects depend on community accountability and oversight (ibid). He claims that privacy laws only increase government surveillance by weakening informal social controls.[56] Furthermore, the government is no longer the only or even principle threat to people's privacy. Etzioni notes that corporate data miners, or "Privacy Merchants," stand to profit by selling massive dossiers personal information, including purchasing decisions and Internet traffic, to the highest bidder. And while some might not find collection of private information objectionable when it is only used commercially by the private sector, the information these corporations amass and process is also available to the government, so that it is no longer possible to protect privacy by only curbing the State.[57]

Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allows freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and association, and limits government power. Collective elements describe privacy as collective good that cannot be divided. Regan's goal is to strengthen privacy claims in policy making: "if we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection".[58]

Leslie Regan Shade argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."[59] Shade believes that privacy must be approached from a people-centered perspective, and not through the marketplace.[60]

Protection

Privacy International 2007 privacy ranking
green: Protections and safeguards
red: Endemic surveillance societies

Most countries give citizen rights to privacy in their constitutions.[61] Representative examples of this include the Constitution of Brazil, which says "the privacy, private life, honor and image of people are inviolable"; the Constitution of South Africa says that "everyone has a right to privacy"; and the Constitution of the Republic of Korea says "the privacy of no citizen shall be infringed."[61] Among most countries whose constitutions do not explicitly describe privacy rights, court decisions have interpreted their constitutions to intend to give privacy rights.[61]

Many countries have broad privacy laws outside their constitutions, including Australia’s Privacy Act 1988, Argentina’s Law for the Protection of Personal Data of 2000, Canada’s 2000 Personal Information Protection and Electronic Documents Act, and Japan’s 2003 Personal Information Protection Law.[61]

Beyond national privacy laws, there are international privacy agreements.[62] The United Nations Universal Declaration of Human Rights says "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation."[61] The Organisation for Economic Co-operation and Development published its Privacy Guidelines in 1980. The European Union's 1995 Data Protection Directive guides privacy protection in Europe.[61] The 2004 Privacy Framework by the Asia-Pacific Economic Cooperation is a privacy protection agreement for the members of that organization.[61]

In the 1960s people began to consider how changes in technology were bringing changes in the concept of privacy.[61] Vance Packard’s The Naked Society was a popular book on privacy from that era and led discourse on privacy at that time.[61]

Free market versus consumer protection approaches

Approaches to privacy can, broadly, be divided into two categories: free market, and consumer protection.[63] In a free market approach, commercial entities are largely allowed to do what they wish, with the expectation that consumers will choose to do business with corporations that respect their privacy to a desired degree. If some companies are not sufficiently respectful of privacy, they will lose market share. Such an approach may be limited by lack of competition in a market, by enterprises not offering privacy options favorable to the user, or by lack of information about actual privacy practices. Claims of privacy protection made by companies may be difficult for consumers to verify, except when they have already been violated.

In a consumer protection approach, in contrast, it is claimed that individuals may not have the time or knowledge to make informed choices, or may not have reasonable alternatives available. In support of this view, Jensen and Potts showed that most privacy policies are above the reading level of the average person.[64] Therefore, this approach advocates greater government definition and enforcement of privacy standards.

Privacy law

Privacy law is the area of law concerning the protecting and preserving of privacy rights of individuals. While there is no universally accepted privacy law among all countries, some organizations promote certain concepts be enforced by individual countries. For example, the Universal Declaration of Human Rights, article 12, states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Australia

The Privacy Act 1988 is administered by the Office of the Australian Information Commissioner.

Privacy law has been evolving in Australia for a number of years. The initial introduction of privacy law in 1998 extended to the public sector, specifically to Federal government departments, under the Information Privacy Principles. State government agencies can also be subject to state based privacy legislation. This built upon the already existing privacy requirements that applied to telecommunications providers (under Part 13 of the Telecommunications Act 1997), and confidentiality requirements that already applied to banking, legal and patient / doctor relationships.

The Privacy Act 1988 was then extended to include the private sector in 2000 with the introduction of the National Privacy Principles. These took effect in 2001. Small businesses with an annual turnover of $3m were excluded from meeting the obligations specified in the National Privacy Principles with some exceptions such as those whose primary business was dealing in personal information.

In 2008 the Australian Law Reform Commission (ALRC) conducted a review of Australian Privacy Law. The resulting report For Your Information was one of the largest reports ever released by the ALRC. Amongst its many recommendations were the consolidation of both the Information Privacy Principles and the National Privacy Principles to form what is now known as the Australian Privacy Principles.

This recommendation, and many others, were taken up and implemented by the Australian Government via the Privacy Amendment (Enhancing Privacy Protection) Bill 2012.

The Australian Privacy Principles, along with other key changes to the overall Act, took effect on 12 March 2014. The new structure of the privacy principles follow the information cycle and incorporate key emerging privacy concepts including privacy by design.

There are currently 14 Australian Privacy Principles:

  1. open and transparent management of personal information
  2. anonymity and pseudonymity
  3. collection of solicited personal information
  4. dealing with unsolicited personal information
  5. notification of the collection of personal information
  6. use or disclosure of personal information
  7. direct marketing
  8. cross-border disclosure of personal information
  9. adoption, use or disclosure of government related identifiers
  10. quality of personal information
  11. security of personal information
  12. access to personal information
  13. correction of personal information

As of 22 February 2018, the Privacy Amendment (Notifiable Data Breaches) Act 2017 will introduce a mandatory data breach notification obligations for all organisations that are subject to Australia’s Privacy Act 1988 (Cth). This includes all Australian-registered companies and foreign-registered companies that carry on business in Australia or that interact with Australian data subjects.

Other Australian privacy laws

There are a range of other laws that provide privacy protection in Australia. These include, but are not limited to, the Telecommunications Act 1997, Spam Act 2006, the Do Not Call Register Act 2009, general confidentiality obligations arising from certain professional relationships including with doctors, lawyers and other health providers, state based legislation including NSW workplace surveillance laws, state based laws that apply in NSW, Queensland and other states for the handling of health information and the handling of information by state government agencies.

Brazil

The Constitution of Brazil sets privacy as a major fundamental right. Even the State is not allowed to violate personal data, intimacy, private life, honor and image (article 5, incise X). In extreme situations, a judicial order can authorize some level of disclosure. But some data, such as correspondence, are absolutely inviolable, and not even judicial order can authorize the disclosure.

China

Criminal Law of the People's Republic of China

Article 245 Whoever unlawfully subjects another person to a body search or a search of his residence or unlawfully intrudes into another person's residence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Any judicial officer who abuses his power and commits the crime mentioned in the preceding paragraph shall be given a heavier punishment.

Article 246 Whoever, by violence or other methods, publicly humiliates another person or invent stories to defame him, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. The crime mentioned in the preceding paragraph shall be handled only upon complaint, except where serious harm is done to public order or to the interests of the State.

Article 252 Whoever conceals, destroys or unlawfully opens another person's letter, thereby infringing upon the citizen's right to freedom of correspondence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year or criminal detention.

Article 253 Any postal worker who opens without authorization or conceals or destroys mail or telegrams shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. Whoever steals money or property by committing the crime mentioned in the preceding paragraph shall be convicted and given a heavier punishment in accordance with the provisions of Article 264 of this Law.

Canada

Canadian privacy law is governed federally by multiple acts, including the Canadian Charter of Rights and Freedoms, and the Privacy Act (Canada). Mostly this legislation concerns privacy infringement by government organizations. Data privacy was first addressed with the Personal Information Protection and Electronic Documents Act, and provincial-level legislation also exists to account for more specific cases personal privacy protection against commercial organizations.

European Union

For Europe, Article 8 of the European Convention on Human Rights guarantees the right to respect for private and family life, one's home and correspondence. The European Court of Human Rights in Strasbourg has developed a large body of jurisprudence defining this fundamental right to privacy. The European Union requires all member states to legislate to ensure that citizens have a right to privacy, through directives such as the 1995 Directive 95/46/EC on the protection of personal data. It is regulated in the United Kingdom by the Data Protection Act 1998 and in France data protection is also monitored by the CNIL, a governmental body which must authorize legislation concerning privacy before it can be enacted. In civil law jurisdictions, the right to privacy fell within the ambit of the right to a private life (droit a la vie privee) from which the tort could be claimed. Personality rights and the broader tort based interpretation of the right to privacy protected correspondence, personal information and dignity. These rights gave rise to causes for damages in most civil law jurisdictions and common law jurisdictions prior to the sui generis development of Data Protection.

Although there are comprehensive regulations for data protection, some studies show that despite the laws, there is a lack of enforcement in that no institution feels responsible to control the parties involved and enforce their laws.[65] The European Union is also championing for the 'Right to be Forgotten' concept (which allows individuals to ask that links leading to information about themselves be removed from internet search engine results) to be adopted by other countries.[66]

India

Due to the introduction of the Aadhaar project inhabitants of India were afraid that their privacy could be invaded. The project was also met with mistrust regarding the safety of the social protection infrastructures.[67] To tackle the fear amongst the people, India’s supreme court put a new ruling into action that stated that privacy from then on was seen as a fundamental right.[68] On 24th of August 2017 this new law was established.

Italy

In Italy the right to privacy is enshrined in Article 15 of the Constitution, which states:[69]

"Freedom and confidentiality of correspondence and of every other form of communication is inviolable. Limitations may only be imposed by judicial decision stating the reasons and in accordance with the guarantees provided by the law."

United Kingdom

In the United Kingdom, it is not possible to bring an action for invasion of privacy. An action may be brought under another tort (usually breach of confidence) and privacy must then be considered under EC law. In the UK, it is sometimes a defence that disclosure of private information was in the public interest.[70] There is, however, the Information Commissioner's Office (ICO), an independent public body set up to promote access to official information and protect personal information. They do this by promoting good practice, ruling on eligible complaints, giving information to individuals and organisations, and taking action when the law is broken. The relevant UK laws include: Data Protection Act 1998; Freedom of Information Act 2000; Environmental Information Regulations 2004; Privacy and Electronic Communications Regulations 2003. The ICO has also provided a "Personal Information Toolkit" online which explains in more detail the various ways of protecting privacy online.[71]

United States

Although the US Constitution does not explicitly include the right to privacy, individual as well as locational privacy are implicitly granted by the Constitution under the 4th Amendment. The Supreme Court of the United States has found that other guarantees have "penumbras" that implicitly grant a right to privacy against government intrusion, for example in Griswold v. Connecticut (1965). In the United States, the right of freedom of speech granted in the First Amendment has limited the effects of lawsuits for breach of privacy. Privacy is regulated in the US by the Privacy Act of 1974, and various state laws. The Privacy Act of 1974 only applies to Federal agencies in the executive branch of the Federal government.[72] Certain privacy rights have been established in the United States via legislation such as the Children's Online Privacy Protection Act (COPPA),[73] the Gramm–Leach–Bliley Act (GLB), and the Health Insurance Portability and Accountability Act (HIPAA). [74]

Privacy Index

The Electronic Privacy Information Center's Privacy Index puts Brazil, Australia, Japan and South Africa in the higher level of privacy (around 2.2). On the bottom of the list are the United States and United Kingdom (around 1.4).[75]

Privacy on the Internet

There are many means to protect one's privacy on the internet. For example, e-mails can be encrypted (via S/MIME or PGP) and anonymizing proxies or anonymizing networks like I2P and Tor can be used to prevent the internet service providers from knowing which sites one visits and with whom one communicates. Covert collection of personally identifiable information has been identified as a primary concern by the U.S. Federal Trade Commission.[76] Although some privacy advocates recommend the deletion of original and third-party HTTP cookies, Anthony Miyazaki, marketing professor at Florida International University and privacy scholar, warns that the "elimination of third-party cookie use by Web sites can be circumvented by cooperative strategies with third parties in which information is transferred after the Web site's use of original domain cookies."[77] As of December 2010, the Federal Trade Commission is reviewing policy regarding this issue as it relates to behavioral advertising.[76] Another aspect of privacy on the Internet relates to online social networking. Several online social network sites (OSNs) are among the top 10 most visited websites globally. A review and evaluation of scholarly work regarding the current state of the value of individuals' privacy of online social networking show the following results: "first, adults seem to be more concerned about potential privacy threats than younger users; second, policy makers should be alarmed by a large part of users who underestimate risks of their information privacy on OSNs; third, in the case of using OSNs and its services, traditional one-dimensional privacy approaches fall short".[78] This is exacerbated by the research indicating that personal traits such as sexual orientation, race, religious and political views, personality, or intelligence can be inferred based on the wide variety of digital footprint, such as samples of text, browsing logs, or Facebook Likes.[38]

Privacy and location-based services

Increasingly, mobile devices facilitate location tracking. This creates user privacy problems. A user's location and preferences constitute personal information. Their improper use violates that user's privacy. A recent MIT study[79][80] by de Montjoye et al. showed that 4 spatio-temporal points, approximate places and times, are enough to uniquely identify 95% of 1.5M people in a mobility database. The study further shows that these constraints hold even when the resolution of the dataset is low. Therefore, even coarse or blurred datasets provide little anonymity.

Several methods to protect user privacy in location-based services have been proposed, including the use of anonymizing servers, blurring of information e.a. Methods to quantify privacy have also been proposed, to calculate the equilibrium between the benefit of providing accurate location information and the drawbacks of risking personal privacy.[81] Users of such services may also choose to display more generic location information (i.e. "In the City" or "Philadelphia" or "Work") to some of their more casual acquaintances while only displaying specific location information, such as their exact address, to closer contacts like spouse, relatives, and good friends.

In recent years, seen with the increasing importance of mobile devices and paired with the National Do Not Call Registry, telemarketers have turned attention to mobiles.[82] The efforts of telemarketers to use mobile devices have been met with both Federal Trade Commission and companies like PrivacyStar. Each year, thousands of complaints are filed to the FTC database with the help of companies and consumers.

Privacy by design

The principle of privacy by design states that privacy and data protection are embedded throughout the entire life cycle of technologies, from the early design stage to their deployment, use and ultimate disposal.

Privacy engineering

The practice of constructing, ostensibly, software or information systems that adhere to given privacy policies and relevant compliances is a developing area and is known as Privacy engineering

Privacy self-synchronization

Privacy self-synchronization is the mode by which the stakeholders of an enterprise privacy program spontaneously contribute collaboratively to the program's maximum success. The stakeholders may be customers, employees, managers, executives, suppliers, partners or investors. When self-synchronization is reached, the model states that the personal interests of individuals toward their privacy is in balance with the business interests of enterprises who collect and use the personal information of those individuals.[83]

Privacy paradox

The privacy paradox is a phenomenon in which online users state that they are concerned about their privacy but behave as if they were not.[84] While this term was coined as early as 1998,[85] it wasn't used in its current popular sense until the year 2000.[86][84] In his article titled "'Opting In': A Privacy Paradox," John Schwartz wrote that "It's one of the more puzzling conundrums of online life. While companies that capitalize on the Internet's powerful potential to invade privacy are denounced as villains of the information age, millions of people type out highly personal data and send it off to Web sites they've barely heard of, with no strong legal protection against misuse of the information. …The paradox helps illustrate the complexity of the debate over privacy."

Susan B. Barnes similarly used the term “privacy paradox” to refer to the ambiguous boundary between private and public space on social media.[87] When compared to adults, young people tend to disclose more information on social media. However, this does not mean that they are not concerned about their privacy. Susan B. Barnes gave a case in her article: in a television interview about Facebook, a student addressed her concerns about disclosing personal information online. However, when the reporter asked to see her Facebook page, she put her home address, phone numbers, and pictures of her young son on the page.

Privacy paradox has been studied and scripted in different research settings. Although several studies have shown this inconsistency between privacy attitudes and behavior among online users, the reason for the paradox still remains unclear.[88] A main explanation for the privacy paradox is that users lack awareness of the risks and the degree of protection.[89][90][91] Users may underestimate the harm of disclosing information online. On the other hand, some researchers argue the privacy paradox comes from lack of technology literacy and from the design of sites.[92] For example, users may not know how to change their default settings even though they care about their privacy. Psychologists particularly pointed out that the privacy paradox occurs because users must trade-off between their privacy concerns and impression management.[93] Other individual factors such as gender, age, trust and personality, may also account for the paradox.

The 1993 film The Pelican Brief, based on the novel of the same name, touches on privacy. In one scene, a law professor discusses the Constitutional right to privacy. One of his students, played by Julia Roberts, argues that the majority opinion in Bowers v Hardwick was wrongly decided.

In the TV series West Wing, in the 1999 episode Short List, the right to privacy arises during the appointment of a Supreme Court judge. Sam Seabourne ventures the opinion that Internet privacy will be a major social issue in the next two decades.[94]

Selfie culture

Selfies are popular today; a search for photos with the hashtag #selfie retrieves over 23 million results on Instagram and "a whopping 51 million with the hashtag #me" However, due to modern corporate and governmental surveillance, this may pose a risk to privacy.[95] In a research which takes a sample size of 3763, researchers found that for selfies, female generally have greater concerns than male social media users. Users who have greater concerns inversely predict their selfie behavior and activity.[96]

See also

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Sources

  • Solove, Daniel J. (2008). Understanding Privacy. Cambridge, Massachusetts: Harvard University Press. ISBN 9780674027725.

Further reading

Articles, interviews and talks
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