Privacy

"The United States is probably the only advanced democracy in the world that does not have a basic privacy law."

"The Fourth Amendment... Is not a basic privacy law. That's a specific prohibition against the government to engage in particular kinds of searches, but it does nothing to protect you from sort of the predatory activities of companies."

"We have to raise our expectations for the centers of power in society if we want to have a fairer society."

"What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared: [Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”"

"For what reason have I this vast range and circuit, some square miles of unfrequented forest, for my privacy, abandoned to me by men? My nearest neighbor is a mile distant, and no house is visible from any place but the hill-tops within half a mile of my own. I have my horizon bounded by woods all to myself; a distant view of the railroad where it touches the pond on the one hand, and of the fence which skirts the woodland road on the other. But for the most part it is as solitary where I live as on the prairies. It is as much Asia or Africa as New England. I have, as it were, my own sun and moon and stars, and a little world all to myself."

"While the administration understands the importance of individuals’ privacy... this bill would be the very first of its kind that I’m aware of, in Virginia or anywhere, that would set a limit on what search warrants can do"

"In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”"

"There are several reasons why privacy takes on particular significance now. First, the effect of technology in providing challenges to the relationship between privacy and criminal law is not restricted to dealing with new mechanisms for surveillance. In the areas of genetic and information technology, the questions which have arisen are whether the classical doctrines of the criminal law (homicide and assault law in the case of genetic technology, criminal property law in the case of computer crime) are sufficient, or whether a new “corpus” of law is appropriate to either case. In either event, there are significant privacy implications. Developments in information technology make it far easier to obtain and disseminate information about peoples' pasts. Moreover, the Internet has radically altered the force of “the public” by allowing the collection and dissemination of materials that, while formally public, were not widely available. It has given rise to claims to privacy of information. It has now also generated claims from law enforcement agencies to encryption keys to decode encrypted emails and prohibitions upon anonymous and pseudonymous Internet use. The second important precipitation has arisen from concern for the “legality of police behaviour” in combination with a “move from reactive to proactive policing”, striking most specifically at drugs but more generally, increasingly, at “organised crime”. Reactive policing takes place in response to reports of crime. It involves the traditional policing techniques of interrogation, searches, seizures and so on of which the suspect is immediately aware, and by police officers whose status and identity the suspect knows. In a system of reactive policing the traditional guarantees of rights to the suspect may or may not in fact be available, but it fairly clear what they would involve. In adversarial systems, due process provides an argument for the right to be informed of one's rights, for access to legal advice, some knowledge of the prosecution case, the right to have interviews recorded and the right to know when an interview is taking place and when it is being recorded. In inquisitorial systems too, the suspect has the right to remain silent, although legal aid may not be immediately available (in the Netherlands, for example, a suspect has no automatic right to have a lawyer present during police interrogation)."

"“Roberts” argues for a moral right to privacy that is, in essence, an individual right to personal autonomy and that, in principle, precludes interference by the state for the purpose of sustaining the common good. While he concedes that there are justifiable reasons for state intervention that derive from the rights of others, his primary interest is in establishing the value of privacy, its nature and significance as a moral right of autonomy, and the necessity of privacy rights entrenched in law that will allow the development of specifically recognised areas of autonomous space where the state cannot interfere."

"Suffice it here to say that, while both concern the right to one's own uninhibited self (in the words of the Dutch Supreme Court, privacy perhaps refers primarily to an “introvert self” and autonomy to an “extrovert self”. The European Court does not make that distinction and regards a right of autonomy (to develop and express all of the aspects of one's personality) as part of the right to privacy (or “vice versa” - which only goes to illustrate the extent of the lack of conceptual clarity). For the purpose of this introduction, it is however possible to bring some order to the many decisions on Article 8, most of which are concerned with the impact of interference by the state in the private sphere for reasons of criminal investigation. As the use of technological and electronic methods of surveillance and investigation gathers momentum, privacy has become an ever greater issue in the European Court. At the same time, however, there is a growing body of European case law concerning privacy in the sense of autonomy."

"The first and foremost harmonising influence emanating from the European Convention on Human Rights and Fundamental Freedoms is, in any event, the requirement that any invasion of privacy for a legitimate reason (for purposes of criminal investigation, usually the prevention of crime) must have a basis in law, and that law – be it case law or statue – must be of a certain quality: foreseeable (sufficiently detailed) and accessible and providing remedies for the citizen. While in civil legal systems and culture it is regarded as self-evident that interference with the individual citizen by the state requires an explicit basis in law, common law systems take the opposite view: everything is allowed unless forbidden. It will be seen, therefore, that the European Convention requires of the United Kingdom a substantial cultural “volte face”,19 at least as far as the rules governing police powers are concerned. But the states of continental Europe too, have been required to bring their procedural rules up to the quality standards that the European Court demands. But what if the restrictions on the right of privacy are to be found in substantive law, so that criminalisation is the obstacle to the exercise of the right to privacy and therefore not procedure but the moral basis of criminal law is the contentious issue. If interference by the state is justified by a commonly agreed criminal policy, such as exists in the shadow of the third pillar of the European Union with regard to organised crime, money laundering, migration and a number of other matters, there will be few problems with the legitimacy of far-reaching police powers (provided they meet procedural norms) or the provisions fo substantive law needed in order to realise that policy. It is where a right to respect for private life is equated with an individual right of autonomy that intractable questions arise. Here, Article 8 (2) of the Convention appears to make allowances for what the European Court of Human Rights calls the “moral climate” of a given society, for it cintemplayes the justification of regulation by a nation state of “morals”. Now, whatever “morals” may mean in this context (and it is an exceedingly hazy concept), the protection of morals as a legitimate aim of state intervention appears not only in Article 8(2), but also in Articles 9(2), 10(2) and 11(2). In any event, it is clear that we are not only talking about sexual morality, although most such cases with which the European Court deals concern sex in some way or another (and many involve the United Kingdom - “no sex please, we're British”).20 Taken together with the toher requirement, that however legitimate the aim “in abstracto”, intervention must also be necessary in a given democratic society, we must surmise that this has something to do with holding together the (moral) fabric of society, if necessary by criminalising autonomous individual behaviour that threatens it. There are any number of exceedingly problematic issues here."

"Where criminal law interferes with the private lives of autonomous individuals, a certain paradox arises when we look at the legal systems and culture of civil law states and common law states. In the latter, we find on the one hand, greater hostility to the state and scepticism of its right to interfere in the lives of individuals. Yet, on the other hand, it is in the “arm length” state that greater intervention through the use of criminal law in the private sphere is usually to be found. Can it be that the “arm's length” state relies upon criminal law not only because of a different conception of (the relationship between the individual and) the state and the resulting absence of legal-theoretical barriers to state interference, but because it lacks, for precisely that reason, other, more subtle, mechanisms of intervention? And can it also be that, as the nation state declines (albeit slowly) in importance, as individuals redefine their relationship to state and society and demand greater autonomy in their own lives and yet more intervention by the state in the autonomous lives of others, the significance of those other mechanisms of intervention will also decline?"

"[W]e must turn to another issue that runs through the contributions to this volume: in cases of conflicting rights and interests, it is the right of privacy that almost always gives way. It has become trite to announce that the problem with the right to privacy is not so much in locating it (which is not without difficulty), but in its lack of purchase. When it comes into conflict with other widely recognised claims, whether based on individual rights (such as those deriving from freedom of speech), or dealing with a claim on behalf of the collectivity (typically criminal justice enforcement) privacy seldom prevails. The explanation for the apparent weakness of privacy rights is to be found in three areas- the equation of privacy with autonomy; the sorts of harm which are done by the violations of privacy which attract most attention and the sorts of reasons which are held to be sufficient countervailing reasons to overcome a claim of privacy. Where privacy in “substantive' criminal law (the law of criminal prohibitions) is under consideration, the question is whether the citizen has a “liberty” to behave in the manner proposed or a duty not so to behave. If s/he is prohibited from doing something which s/he wants to do there is a diminution in his/her freedom. The classical liberal position of J.S. Mill is that, so long as others are not affected, there is no right for the state to interfere. The private is frequently adopted as the model of the space where none but the willing participant is affected. Interference by the state in the private impacts upon self-fulfillment, and has undesirable long-term effects, whether or not its injunctions are obeyed. When, on the other hand, we talk of privacy in “procedural” criminal law what is generally in issue is an “immunity” - the asserted right of the accused person not to have particular things done to him/her as against a claimed power for representatives of the state to do them. There is an overlap between these cases and those dealing with the exclusion of evidence in order to discipline the police, or to preserve the rights of the citizen. The immunity is almost always qualified, so that privacy claims during criminal investigation are seldom indefeasible (the lawyer-client privilege providing an interesting exception)."

"A question that will legitimately arise is as to the relationship between the two types of invasions of privacy (invasion by prohibition and invasion by enforcement mechanism) and the strength of their respective justifications. With arguments about evidence-gathering techniques, the question is to do with process-values, and the usual approach is to say that the more serious the invasion of the privacy, autonomy or dignity of the defendant, the higher the degree of formal scrutiny which is required before it can be invaded. There are some invasions which be undertaken by anyone, some only by police officers, some which can be authorised only by senior police officers, and some invasions which require orders from magistrates, or by more senior judges. There are some invasions that cannot be made under compulsion, but from the defendant's refusal to be invaded can be drawn adverse inferences. Whether or not the additional constraints provide substantial checks or easily surmounted formal obstacles is not here in point: what is of concern is the value expressed by having such a body of rules."

"One of the reasons why privacy might be considered a weak(ish) right is that the focus of the literature on the right to privacy in criminal justice contexts has been largely on the second and third cases. The effect of a single search – even an intimate search – may not be too serious when compared with an interfeence with lifestyle that lasts far longer. Successive stops, searches or arrests may amount to a campaign of harassment, but that simply raises issues about their legality and legitimacy. Targeted surveillance that is unknown to the suspect, causes no direct interference with his/herif. Even the knowledge that at any given time the police might be engaged in targeted surveillance is not something which need impact tremendously upon the suspect's enjoyment of life. It is the endurance of the invasion that bears upon the seriousness of the invasion far more than any transient indignity. However strong the claim is that the kinds of police powers which would be necessary to enforce a policy of criminalisation of drugs are intrusive and unpleasant, even in this area it is the lifestyle impact which the legislation has upon the people both who obey and who do not that is the more significant issue. It is therefore critically important that the European Convention on Human Rights should generate examination of substantive as well as procedural law. Similarly emphasis in the US federal courts upon the notion of privacy in the procedural cases compared with its slight and probably diminishing influence in the substantive law cases is difficult to defend."

"[A] distinction between information and autonomy rights generates different strengths in the claims of privacy which are made. The claim made by a person agreived in a system protecting a right of privacy focused upon information is “Mind your own business”, “Don't be so nosey” or somesuch. The claim from autonomy is of a different moral order altogether. It is “Do not interfere with my exercise of my liberty”. Surveillance of which the subject is aware is an inhibitor of action: but it is only an inhibitor, not a prohibitor. Again the argument is that by concentrating upon invasions of privacy which only indirectly impinge upon personal freedoms, the violation can be made to seem less serious."

"Indeed, in those cases of claims of privacy are rooted in autonomy, the very notion of autonomy is ambiguous, for in considering privacy in terms of autonomy we immediately run up against a preliminary question: what is the nature of the self to which autonomy is granted? It is to be a socialised or an unsocialised self? The Europea Court of Human Rights is mot definite: protection of autonomy rights is restricted to the socialised self. The debate surrounding the anonymity of Internet use is of particular interest to this issue, precisely because it is partly a debate about autonomy and freedom to escape"

"There is something uncomfortable – perhaps even sordid – about covert surveillance, which is not necessarily expiated simply because a particular operation is instrumentally effective. The feeling seems at least in part to be connected with the loss of privacy suffered by targets of surveillance, and by those with whom they associate. Discomfit is further compounded by the worry that the informational fruits of surveillance could be misinterpreted (the camera never lies?), misappropriated or otherwise abused."

"This section argues that the value of privacy is best understood as a component of the liberal ideal of individual or personal autonomy. It must be stressed at the outset that the argument from autonomy to be developed here does not preclude the possibility that privacy rights cold be grounded in other values instead of, or in addition to, autonomy."

"A person in a deep coma after an accident has no autonomy-based right to privacy, because her current condition precludes autonomous action. At least for the time being, she has no interest in acting autonomously, because, quite simply, autonomous action is impossible for her. However, “this does not prove that she has no right to privacy”, only that her right to privacy – if she has one – must be derived from some other source. Two candidates that spring readily to mind are, first, respect for human dignity and, secondly, the pragmatic imperative of limiting potential abuses of official power by placing restrictions on what people like doctors can do to those unfortunate enough to be afflicted in the manner contemplated. A particular right to privacy might be justified on all three grounds, where it contributes to promoting autonomy, respecting human dignity “and” controlling official power."

"Indeed, anyone who recognises personal autonomy as an important moral and political ideal could accommodate this argument within their ethical universe. Most communitarians, for example, agree with liberals that individual autonomy is valuable and worth promoting, but part company with them when it comes to ranking autonomy against other, especially communal, values and ideal (“the common good”). Communitarians might readily endorse the central argument advanced here, that privacy rights serve individual autonomy, though they would tend to value privacy rights less highly than liberals typically do, in accordance with their broader philosophical commitments. On the other hand, there is nothing in this argument for philosophies such as Utilitarianism or National Socialism which, in rejecting individual autonomy as an appropriate focus of moral concern, radically undermine any autonomy-based vindication of privacy rights *and so much the worse for Utilitarianism and National Socialism)."

"The power of general rights analysis can be focused and harnessed to serve our present inquiry. Privacy claims qualify as rights under the Interest Theory if interests in privacy can be delimited with sufficient clarity and precision to give them a similar structure to an interest in negative liberty. Privacy rights must not, on the other hand, assume the structure of an intolerably burdensome right to autonomy. In fact, this condition is quite easily satisfied to the extent that privacy interests converge with negative liberty on a shared core idea of being left alone, free from unwarranted interference.31 It is no great imposition on your autonomy to be told to leave me alone, while at the same time you, in your turn, benefit from being left alone by me and everybody else to get on with your life. Essentially the same considerations explain the criminal law's preference for operating primarily through negative prohibitions (“don't do x, y or z, but you are free to do everything else”), and its general aversion to omissions liability."

"Thus, Warren and Brandeis derived their common law right to privacy by generalising from specific instances of the right to be “let alone” already registered at common law: “[T]he protection afforded to thoughts, sentiments and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone”. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 205. They added that the underlying ratinale was “in reality not the principle of private property, but that of an inviolate personality”."

"The challenge now confronting the search for a right to privacy is to be able to delineate privacy interests with greater clarity and precision. Some guidance might be found in international human rights norms, especially Article 8 of the European Convention on Human Rights 32 and Article 17 of the International Covenant on Civil and Political Rights, and their associated jurisprudence. One might also undertake comparative analysis of privacy protection in national laws and constitutions A significant drawback of these strategies, however, is that conceptions of privacy rights in positive law tend to be parceled up with a certain degree of institutional legal baggage. Allied to the effect of encountering multiple and inconsistent legal definitions, this may serve to confuse in many respects, at the same time as clarifying other matters, which in the aggregate does not necessarily advance the cause of enlightenment. Fortunately help is at hand, in the shape of some excellent academic philosophy and legal writing on privacy interests and rights. In particular Ruth Gavison has explained the interests protected by a right to privacy in terms of limiting a person's accessibility to others. This seems to me to encapsulate the kernel of the idea we require: Our interest in privacy . . . is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention. This concept of privacy as a concern for limited accessibility enables us to identify when losses of privacy occur. Gavison breaks down the interest in limited accessibility into three further “irreducible elements” of privacy, “which she calls “secrecy, anonymity, and solitude”: As a methodological starting point, I suggest that an individual enjoys “perfect” privacy when he is completely inaccessible to others. This may be broken down into three independent components: in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X. . . . A loss of privacy occurs asothers obtain information about an individual, pay attention to him, or gain"

"Gavison's approach to privacy is criticised as “arbitrary” by David Feldman, “Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty” (1994) 47 Current Legal Problems 41, esp. at 52 and n 49. I do not agree that Gavison's normative argument for a particular conception of privacy interests is arbitrary, except in the trivial sense that a different argument might have been made. The real issue, I suggest, is whether Gavison – and this partial adoption of her argument – is right or wrong. Feldman prefers to give privacy rights a more communitarian or collectivist twist: also see his “Privacy-related Rights and their Social Value” in Peter Birks (ed.), “Privacy and Loyalty” (Oxford: Oxford University Press, 1997). However, he does not give any example of privacy interests that cannot be acomodated within Gavison's scheme, while his own preferred approach, according to which “[p]rivacy is largely a matter of being able to choose where, when, and with whom to cooperate or to withold co-operation” (“Secrecy, Dignity or Autonomy?” supra, at 51), suffers from the standard objection to “control” or “choice” accounts of privacy: i.e. that privacy interests may be set back by one's own careless or even deliberately self-injuring autonomous conduct, even while one remains fully “in control.” if privacy interests are underpinned by an objective conception of welfare, no entirely subjectivity criterion – such as choice or control – will ever successfully capture their essence, though choice might be important in an argument about privacy “rights”. And see n 41 “infra”."

"Someone might accept both the connection between privacy and autonomy asserted in Section I, and the Interest Theory of rights developed and applied here, and yet still be unwilling to concede the existence of a right to privacy. One objection might be that privacy interests can be recognised without being elevated into the subject-matter of a right. The “de facto” enjoyment of freedom from interference with one's privacy is not, assuredly, the same as a right to privacy. Why, it might be asked, is “de facto” freedom not enough? Why must moral rights and duties come into the picture? The case for a right to privacy has so far rested on: (I) the crucial importance of privacy for personal autonomy; and (ii) the relatively undemanding nature of privacy-related duties: we have seen that this ensures the compatibility of privacy rights with human autonomy and with other important individual and social values, some of which (including, for example, human dignity, family ties, and particapatory democracy) derive positive reinforcement from the security of private life. The missing link in the chain of argument, on which this first objection fastens, is the affirmative case for elevating privacy interests into privacy rights."

"In the space available, and without becoming embroiled in complex – and anyways inconclusive – questions of moral epistemology, the affirmative case for a right to privacy rests on the following considerations. First, let it be said, there is no grand mystery about the general relations between interests, liberties and right. From the perspective of the Interest Theory, the question is simply whether an interest is sufficient to place another person under a duty to respect it. As reflected in international human rights treaties like the ECHR and the ICCPR, I suggest that privacy interests are important enough to be grounds of duties, both for government officials and private individuals."

"Privacy interests are highly vulnerable in a world of CCTV, vast and growing data banks of personal information and spy satalites in the sky. The seriousness of the threat posed to privacy interests in modern society, in conjunction with a proper understanding of privacy's key contribution to human flourishing, justifies mutual duties of respect for privacy. These duties extend, with appropriate modifications in their detailed specification, to a wide range of formal and informal roles and relationships. Professionals such as doctors and lawyers owe privacy-based duties to their patients and clients; employers and employees respectively bear whatever duties of privacy are implied by their particular employment relationship. Officials of all kinds have important privacy-based duties. In the criminal justice context, police officers are not only the most obvious example of state officials with duties to respect privacy, but also demonstrate in their day-to-day activities the manifold ways in which privacy is imperiled by the exercise of official state power. A less familiar but no less important second example is that legislators have duties to enact laws that provide an appropriate measure of protection for privacy interests, and further laws to secure appropriate redress when privacy rights are infringed, as they inevitably will be on occasion."

"Privacy's contribution to advancing a broad range of social and political values in stressed by David Feldman, “Privacy-Related Rights and their Social Value,” in Peter Birks, op. Cit. n 34. Feldman asserts that: “Privacy in its sociable form helps us the define and then to defend the social spheres in which we work or play with others. These spheres are more important than those fields in which we operate without others, and are very significantly more valuable than those areas in which we work selfishly against others” (at 22). Nonetheless, when it comes to identifying criteria to determine the scope and limitations on privacy rights Feldman adumbrates a list of distinctly liberal autonomy/harm principle considerations *at 24-5). Since my argument for an autonomy-”based” right to privacy leaves room for social, communal and collective aspects of privacy, there is perhaps little material distance between Feldman's position and mine, though I remain doubtful of aspects of his theoretical analysis."

"A different objection to conceding a right to privacy is that privacy is open to abuse, and has in fact been repeatedly abused in the past. Its chequered record has given the right to privacy a bad reputation in some circles. For, it is charged, does privacy not provide a cloak for tyranny and a licence to victimise the vulnerable and defenceless? Is the right to privacy not the reflex defence of choice for sweat-shop factor owners, men who beat their wives and girlfriends, and parents who abuse their children? The work done in recent decades by feminist criminologists and others in beginning to expose the almost unimaginable nature and extent of (mostly) men's violence against women and children in the home gives these questions itresistable force and urgency. Furthermore – as if that were not enough – in these times of “flexibilisation”, de-regulation, privatisation and increasing casualisation of the workforce, we are again confronting questions about working conditions and labour exploitation that by now ought to have been consigned to histories of the rabid first phase of nineteenth century capitalism. The feminist-leftist critique of the public-private divide has become (though radicals bristle at the thought of contributing t a new orthodoxy) a received part of the philosophical canon."

"It is tempting to try to explain (away) rights conflict by pointing to the fact that very few rights are absolute. The right to privacy certainly is not absolute, as my proposed definition makes clear: “reasonable” demands for information, “justifiable” surveillance, and “non-arbitrary” interference with person, home or property all fall outside its protection. Perhaps, then, it can be shown that the right to privacy is circumscribed by the boundaries of more weighty interests, such as interests in bodily integrity and security, so that rights protecting these interests are not in conflict with the right to privacy after all? The suggestion is a helpful reminder that few – if any – rights are absolute, and that apparent conflicts between rights can sometimes be resolved by paying more careful attention to the proper scope of particular rights. On reflection it may be found that one right actually circumscribes or delimits another, as opposed to there being any genuine conflict between them. But this is not enough to salvage the objection presently under examination, as a simple example demonstrates. It is reasonable to postulate that the right to privacy ends at the point where there is “reasonable suspicion” or “probable cause” to suspect that a vulnerable child is in grave danger of harm."

"Some readers might now be thinking that their scepticism about the existence of a right to privacy has been more than vindicated – and by an opponent! - but this is to forget the lesson of the first section, and so to fall victim to the second misconception I promised to dispel. Privacy, to repeat, is essential for an autonomous life. It is therefore self-defeating for anybody who embraces the liberal ideal of personal autonomy to deny that there is a right to privacy in order to defend a competing right to bodily integrity. For why is bodily integrity valuable? In large part precisely because it is anothr prerequisite for living autonomously. The implication of finding a common root both for privacy rights and rights to bodily integrity in a liberal conception of well-being, it should be evident, is that bodily integrity would be worth much less (though certainly not worthless) if privacy interests lacked adequate protection. (The reverse relation also holds, of course: a surfeit of privacy would be inadequate compensation for a substantial loss of bodily autonomy). It is certainly much to be regretted that rights always over-extend to situations in which the protection they afford is unwarranted or abused, as well as to situations in which the right-holder's interest in privacy is trivial or non-existent. But this over-extension is an attribute that the right to privacy shares with every other species of right; and while it is possible to reduce the are of over-extension through careful drafting and interpretation, at some point further refinements can only be bought at the cost of excluding meritorious cases from the ambit of the right. No amount of handwringing or denial will alter that conceptual reality, or falsify the moral truth about rights. Unless one is prepared to reject the liberal ideal of autonomy itself, therefore, the right to privacy seems secure, its faults and limitations notwithstanding."

"Recent technological advances have greatly enhanced the capacity to monitor and record our movements and activities, to collect, collate and disseminate personal information about us quickly and cheaply, and to probe our minds and our genes in order to discover our physical and psychological strengths and vulnerabilities. As Justice Michael Kirby has noted, the information technology revolution poses a significant challenge to our ability to safeguard personal information: [The] quantity of personal information about individuals as likely to increase rather than decrease. Access to this this information is what occasions the contemporary fragility of privacy – a human attribute that has been steadily eroded over the past century. To the extent that the individual has no control over, and perhaps no knowledge about, the mass of identifiable data which may be accumulated concerning him or her and to the extent that national law-makers, despite their best endeavors, enjoy only limited power effectively to protect the individual in the global web, privacy as a human right, is steadily undermined.1"

"It is not surprising that these developments have elicited mixed responses. While the enormous actual and potential benefits of information and surveillance technology, genetic science and biometrics are generally acknowledged, many commentators are concerned about the cost which may have to be paid for these benefits in terms of personal privacy and autonomy. Over the past decade, this anxiety has been expressed in numerous articles, both in the academic journals and the mainstream press. These theme hass also been explored in a number of rescent successful Hollywood films. This anxiety is by no means universal. Those who dispute the view that privacy today is facing threats of unprecedented magnitude point out that in many ways citizens of affluent Western countries have more of some kinds of privacy than at any other time in history. The novelist Jonathan Frazen writes: In 1890, an American typically lived in a small town under conditions of near-panoptical surveillance. Not only did his every purchase “register”, but it registered in the eyes and the memory of shopkeepers who knew him, his parents, his wife, and his children. He couldn't so much as walk to the post office without having his movements tracked and analyzed by neighbors. Probably he grew up sleeping in the same bed with his siblings and possibly with his parents, too. Unless he was well off, his transportation – a train, a horse, his own two feet- either was communal or exposed him to the public eye. In the suburbs and exurbs where the typical American lives today, tiny nuclear families inhabit enormous houses, in which each person has his or her own bedroom and, sometimes, bathroom … It's no longer the rule that you know your neighbors. Communities tend to be virtual, the participants either faceless or firmly in control of the face they present. Transportation is largly private; the latest SUVs are the size of living rooms and come with onboard telephones, CD players and TV screens; behind the tinted windows of one of these high-riding I-see-you-but you-can't-see-me mobile PrivacyGuard units, a person can be wearing pyjamas or a licorice bikini, for all anybody knows or cares. The “right to be left alone”? Far from disappearing it's exploding. It's the essence of modern Americana architecture, landscape, transportation, communication and mainstream political philosophy.4"

"This description is equally applicable to contemporary conditions in other developed Western societies, including Australia. The contrast Franzen draws between social conditions in the late 19th century and the early 21st century illustrates another important feature of privacy: what privacy means and the degree to which privacy is a part of social practices is contingent on the social norms and standards of living prevailing in particular societies at particular times. Social and technological changes alter perceptions of what privacy entails in different social contexts. Perhaps the most striking example of this is the one given by Franzen: the enormous expansion in the amount of “private space” available to families and individuals in Western societies. The meaning and significance of privacy is also culturally specific. Privacy of personal space is far more highly valued in the liberal democracies of the Western world in which the nuclar family is the basic unit of social organisation and strong emphasis is place on the self-realisation and autonomy of the individual, than in more communitarian societies. Social and technological changes alter perceptions of what privacy entails in different social contexts.5 Perhaps the most striking example of this is the one given by Franzen: the enormous expansion in the amount of “private space” available to families and individuals in Western societies. The meaning and significance of privacy is also culturally specifc.. Privacy of personal space is far more highly valued in the liberal democracies of the Western world in which the nuclear family is the basic unit of social organisation and strong emphasis is placed on the self-realisation and autonomy of the individual, than in more communitaran societies.6"

"Franzen also makes the point that the fire warnings of the privacy Cassandras do not appear to have generated genuine alarm in the American public: “Americans care about privacy Cassandras do not appear to have generated genuine alarm in the American public: “Americans care about privacy mainly in the abstract”.7 Professor David Anderson describes the attitude of Americans to privacy as “ambivalent”. 8 On the one hand, Americans cherish privacy: they want privacy in their living conditions and are prepared to spend significant amounts of money to secure it; it is considered impolite to question a person about her income, political views of academic results; and individuals expect to be protected from the curiosity of others. On the other hand, Americans also cherish other values which often conflict with privacy; “information, candour and free speech”. The public appetite for drama, tragedy, gossip and scandal is seemingly insatiable: We claim to respect privacy, but in fact we devoure the private secrets of hundreds of people every day. We do value privacy, but not as much as we hunger to know – to know the shocking details of scandal, to see the drama or terror or grief or humiliation, to understand the strangeness of our neighbours … Theprincipal raw material consumed in the production of news and entertainment is people's lives, both public and private. From journalism school onwards, reporters and editors are reminded again and again that news is about people. Television ratings and newspaper readership surveys, as well as journalist's own instincts, tell them that readers and viewers want to know about people.9"

"As will be evident from the foregoing discussion, even a cursory consideration of privacy raises a number of conceptual difficulties. What is privacy? What interests are affected and protected by privacy? What is the justification for recognising a legally enforceable “right” to privacy? How is the balance to be struck between the right to privacy and other competing rights and interests, identified by the Australian Law Reform Commission in 1983 as: Freedom of expression; freedom of information; protection of the revenue; prevention and detection of crime and apprehension of offenders; protection of economic, trade and state secrets; respect for confidential relationships; protection of financial, property and staff management interests; maintenance of national security and an effective defence capability; protection of diplomatic relations; and protection of significant managerial interests, for example the need for effective conduct of audits, examinations; and protection of significant managerial interests, for example the need for effective conduct of audits, examinations and efficiency reviews."

"The above issues have not been satisfactorily resolved at the conceptual level and it is largely because of this that law-makers have been unable to develop a coherent regulatory framework within which to place the right to privacy. The right to privacy is at present so vague and unstable that its scope seems to be almost boundless. Indeed, there is a tendency to reclassify a number of distinct types of legal wrong as invasions of privacy. For example, violations of one's bodily integrity have traditionally been protected by specific criminal offences or civil actions such as assault, battery and negligence. The justification for such offences or actions was traditionally found in the universally accepted principle that people have a right not to have their bodily integrity violated. However, the same interests that are protected by such offences and actions are being relabeled by some as “bodily privacy”. In relation to information privacy, one commentator has warned that: If we treat privacy as a catch all term and invoke it to rectify every offensive use of personal, or intimate information as an invasion of privacy, privacy will gradually expand to colonise the existing rights of action, such as unfair dismissal, discrimintion, even taxation appeals in appropriate cases. We will end up with remedies: but our capacity to distil the problem will be reduced and our ability to balance our individual claims, either against the needs of our society or against each other will be impaired."

"It is not feasible to draft coherent and informed laws prtecting a right or to fully understand existing laws, unless the parameters of the right and its importance have been established. A uniform and well-grounded approach to privacy will not be developed until law-makers understand the essential nature of the right and where it ranks in relation to other interests which privacy has the potential to encroach upon or curtail. At the outset it is important to emphasise that there is a cost attached to entrenching a legal right to privacy. If there were no legal protection for privacy, criminals and terrorists would find it harder to plot harmful acts; we would know more about the “real” agendas that drive our politicians; we would all know our neighbours better and the fear caused by not knowing what others are doing would alrgely dissipate. In the business setting, people would be better placed to make rational and informed investment and spending decisions. More generally, the world would be a far more open and less pretentious place. It is true that I order to reap these benefits we would have to give something up: a little (or perhaps even a lot of) information about us. But is this too high aprice to pay? As we shall see in Chapter 2, it could be claimed that the right to privacy is no more than a “polite” way of entrenching the concept of secrecy, which is normally antithetic to an open and free society."

"Posner argues that a legal right to privacy absed on economic efficiecy would: (a) protect trade and business secrets by which businessmen exploit their superior knowledge or skills; (b) generally not protect for facts about people; and (c) limit, so far as possible, eavesdropping and other forms of intrusive surveillance to surveillance of illegal activities."

"In any event, if privacy is not adequately conceptualised it risks becoming a transient 21st century phenomenon. In 1972 the English Law Reform Committee, the Younger Committee, made the following observations regarding the soundness of an xpansive or formless deifnition of, and approach to, privacy: An unqualified right [to privacy[ .. would .. be an unrealistic concept, incompatible with the concept o society, implying a willingness not to be let entirely alone and a recognition that other people may be interested and subsequently concerned about us. If the concept were to be embodied into a right, its adaptation to the dominant pressures of society would require so many exceptions that it would lose all coherence and hence any valid meaning."

"It follows that a purely black letter, descriptive approach to privacy law would be of limited utility. There are many gaps in privacy regulation and there is considerable scope for debate regarding the manner in which exiisting privacy laws should be interpreted and applied. Moreover, the law in this area is in a state offlux. A conceptual understanding of privacy is necessary in order to make a judgment on the policy questions in this area. Questions such as: to what extent should the law commit itself to protection of privacy?; what is the proper balance to be struck between privacy and other rights?; how should the existing law be interpreted and developed in the future? In light of this, a significant portion of this book will analyse the philosophical foundations of the right to privacy."

"Interest in the “right” to privacy has blossomed in recent decades at both the international and domestic levels. At the international level, the right to privacy is expressly recognised in Article 12 of the Universal Declaration of Human Rights, Article 17 of the “International Covenant on Civil and Political Rights and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the past two decades, the legal recognition of privacy has been the subject of major inquiries by the Australian Law Reform Commission and the United Kingdom Home Office. In the United Kingdom, the passage of the Human Rights Act 1998 has prompted a fresh examination of the status of privacy interests in the common law in the context of the legal treatment of privacy in other European member states."

"Despite the large number of statutes dealing with privacy, legal regulation of privacy is at best patchy and varies markedly across the jurisdictions in Australia. While there is no common law action for breach of privacy in Australia, privacy interests are protected indicentally by other common law principles, such as tresspass, nuisance, defamation and passing off. The equitable doctrine of confidence is perhaps the most promising potential source of protection for privacy om the unwritten law. Indeed, the House of Lords in Campbell v MGN Ltd has recently transformed the breach of confidence action into a privacy tort in all but name. In doing so, the Law Lords drew explicitly upon the privacy values enshrined in Article 8 of the European Convention on Human Rights, now incorporated into the United Kingdom domestic law, along with the other rights guaranteed under the Convention, by the Human Rights Act 1998 (UK). The Court of Appeal in New Zealand recently took the bold step of recognising a new privacy tort, along the same lines as th United States “privacy facts” tort. It appears likely that Australian courts will also develop the breach of confidence action in order to make it a more effective behicle for obtaioning redress against unauthorised disclosure of private facts by the media. How far the courts will go in this direciton will depend on judicial olicy, and the constraints imposed by the doctrine of precedent."

"Despite widespread acceptance in the community and an increasing level of legal recognition, at the post-philosophical level the basis for the right to privacy is unclear. Central questions relating to the right to privacy remain unanswered. Do humans actually have a right to privacy? If so, where does it come from? What is its scope? How does it rank in comparison to other rights? Legal discourse has not sufficiently addressed these issues. Most privacy advocates simpy assume that the right to privacy has a souind foundation. However, if one looks just a little below the surface the foundation starts to look decidedly wobbly. One way of testing for the importance, if not the exstence, of a right is to imagine a world in which it is absent. There is no “clear” reason why the present state of affairs that we find ourselves in is better off than a world which is identical in all respects except for the fact that there is no right to privacy. It is not immediately apparent that the makeup of the human psyche demands such a right. Now if one undertakes this mental exercise in the context of indisputable rights, such as the right to life or the right to liberty, a wholly different picture emerges. All rights are subject to the recognition of a right to life and historyhas shown us that communities or individuals deprived of the right to liberty (for example, slaves) tend to be, to be put it mildly, miserable – his is shown by the elngths to which people wil go to assert a degree of freedom and autonomy. Not so in the case of the right to privacy."

"The fact that there seems to be widespread support for the right to privacy says little regading the validiy of this right. It is not difficult to drump up support for a partcular interest. This stems from the nature of “rights”. As we shall see in this chapter, rights are individualisinginterests and promise to confer benefits on people – and people like that which is advantageous to them. Hence, simply labelling an interest as a “right” is likely to generate enthusiasm for the interest. Thus, if people are polled on whether they supported “a right to unrestricted paid maternity leave”, “a right to the best possible health care”, “a right to free-to-air sport”, or “a right to go fishing”, they would be likely to say “yes”. Yet we enjoy none of these rights; at least not in an unrestricted or absolute sense. This is because, ultimately, rights come at a cost. The costs are not always immediately apparent. Such is the case with privacy."

"Privacy proponents have been incapable of explaining the foundation for such a right and why it should enjoy a high level of legal protection. It follows that the right to privacy is at risk of being classified as a late 20th/early 21st century first-world invention, indicative of a highly individualistic society fearful of the capabilities of the technology it has developed. Moreover, the alarmist rhetoric of privacy advocates who proclaim the imminent demise of privacy does not seem to match reality; in fact, it is arguable that citizens in Western societies enjoy a level of de facto privacy unprecedented in history. As to the threats posed by the minoitoring capabilities of the new information technologies, t is now becoming apparent that the technology itself can provide the means to counter them. Arguably, the current legal focus and level of discussion concerning the right to privacy is an illustration of the human propensity for losing perspective. Ultimately, we conclude that the right to privacy does have a concrete foundation. The strongest arguments in recognition of such a right are that a degree of privacy is necessary for autonomous action and that individuals should have an opportunity to comment on potentially adverse information that is held about them, where this can affect their tangible interests. The latter rationale gains expression in the broader notion of natural justice. Nevertheless, the right to privacy is not a strong right and few interests should be subjugated to this right."

"The common law has not defined privacy. And there is no clearly accepted meaning of the term, despite the formidable body of literature devoted to the subject. A popular view is that the privacy is so open-ended that it is not capable of definition. The United States Supreme Court in “Griswold v Connecticut”, noted: [P]rivacy is a broad, abstract and ambiguous concept which can be easily shrunken in meaning but which can also, on the toher hand, easily be interpreted as a constitutional ban against many things."

"American privacy scholar Robert Post has lamented that “privacy is a value so complex, so entangled in competing and contradictory dimensions, so enforged with various and distint meanings that I sometimes despair whether it can be usefully addressed at all”.6 Recently the Victorian Law Reform Commision has noted the “difficulties of arriving at an overarching definition of privacy”.7"

"In ascribing a definition to privacy, we agree with WA Parent, who stated: What is needed is a definition which is by and alrge consistent with ordinary language .. [and] which also enables us to talk consistently, clearly, and precisely about the family of concepts to which privacy belongs. Moreover, the definition must not usurp or encroach upon basic meanings and functions of other concepts within this family.8"