Michael McFarland, S.J.
Privacy is important for a number of reasons. Some have to do with the consequences of not having privacy. People can be harmed or debilitated if there is no restriction on the public's access to and use of personal information. Other reasons are more fundamental, touching the essence of human personhood. Reverence for the human person as an end in itself and as an autonomous being requires respect for personal privacy. To lose control of one's personal information is in some measure to lose control of one's life and one's dignity. Therefore, even if privacy is not in itself a fundamental right, it is necessary to protect other fundamental rights.
In what follows we will consider the most important arguments in favor of privacy.
Protection from the Misuse of Personal Information
There are many ways a person can be harmed by the revelation of sensitive personal information. Medical records, psychological tests and interviews, court records, financial records--whether from banks, credit bureaus or the IRS--welfare records, sites visited on the Internet and a variety of other sources hold many intimate details of a person's life. The revelation of such information can leave the subjects vulnerable to many abuses.
Good information is needed for good decisions. It might seem like the more information the better. But sometimes that information is misused, or even used for malicious purposes. For example, there is a great deal of misunderstanding in our society about mental illness and those who suffer from it. 1 If it becomes known that a person has a history of mental illness, that person could be harassed and shunned by neighbors. The insensitive remarks and behavior of others can cause the person serious distress and embarrassment. Because of prejudice and discrimination, a mentally ill person who is quite capable of living a normal, productive life can be denied housing, employment and other basic needs.
Similarly someone with an arrest record, even where there is no conviction and the person is in fact innocent, can suffer severe harassment and discrimination. A number of studies have shown that employers are far less likely to hire someone with an arrest record, even when the charges have been dropped or the person has been acquitted.2
In addition, because subjects can be damaged so seriously by the release of sensitive personal information, they are also vulnerable to blackmail and extortion by those who have access to that information.
Privacy protection is necessary to safeguard against such abuses.
Privacy and Relationship
Privacy is also needed in the ordinary conduct of human affairs, to facilitate social interchange. James Rachels, for example, argues that privacy is an essential prerequisite for forming relationships. 3 The degree of intimacy in a relationship is determined in part by how much personal information is revealed. One reveals things to a friend that one would not disclose to a casual acquaintance. What one tells one's spouse is quite different from what one would discuss with one's employer. This is true of more functional relationships as well. People tell things to their doctors or therapists that they do not want anyone else to know, for example. These privileged relationships, whether personal or functional, require a special level of openness and trust that is only possible if there is an assurance that what is revealed will be kept private. As Rachel's points out, a husband and wife will behave differently in the presence of a third party than when they are alone. 4 If they were always under observation, they could not enjoy the degree of intimacy that a marriage should have. Charles Fried puts it more broadly. Privacy, he writes, is "necessarily related to ends and relations of the most fundamental sort: respect, love, friendship and trust... without privacy they are simply inconceivable." 5
The analysis of Rachels and Fried suggests a deeper and more fundamental issue: personal freedom. As Deborah Johnson has observed, "To recognize an individual as an autonomous being, an end in himself, entails letting that individual live his life as he chooses. Of course, there are limits to this, but one of the critical ways that an individual controls his life is by choosing with whom he will have relationships and what kind of relationships these will be.... Information mediates relationships. Thus when one cannot control who has information about one, one loses considerable autonomy."6
To lose control of personal information is to lose control of who we are and who we can be in relation to the rest of society. A normal person's social life is rich and varied, encompassing many different roles and relationships. Each requires a different persona, a different face. This does not necessarily entail deception, only that different aspects of the person are revealed in different roles. Control over personal information and how and to whom it is revealed, therefore, plays an important part in one's ability to choose and realize one's place in society. This operates on many different levels. On a personal level, for example, one ought to be able to choose one's friends. That means that one should be able to choose to whom to reveal some of the personal revelations that are only shared among friends. This choice is only meaningful if one can also choose to exclude some from friendship and the privileged revelations that come with it. Consider the case of Carrie and Jim. Jim met Carrie at a party and was immediately smitten by her grace and beauty. Unfortunately for Jim it was not mutual. Carrie made it quite clear she had no interest in any kind of relationship. But this brush-off just fueled Jim's obsession with her. He began to stalk her, following her wherever she went and looking her up online, until he knew her daily schedule, her friends, and her favorite shops and restaurants. He did careful research on her trash, reading her letters and inspecting her receipts, learning what kind of cosmetics she used and what her favorite ice cream was. He even peeked through her window at night to see what she wore and how she behaved when she was alone. Even if Jim never did anything to attack or harass Carrie, even if she never found out about his prying, she has lost some of her freedom. She did not want him to have access to her personal life, but he seized it anyway.
Privacy is an issue in other, more professional, relationships as well, as the following case illustrates. Fred Draper 7 grew up in Brooklyn, where as a youth he ran with a very tough crowd. By the time he was 16 he had been convicted of armed robbery and malicious destruction of property, and was on probation until he was eighteen. But Fred was also a very talented student, and he was fortunate enough to have a teacher in high school recognize his potential and take him under his wing. Through a combination of encouragement, guidance and discipline, the teacher was able to get Fred to focus on school and stay out of trouble, so that he graduated with an outstanding record and won a scholarship to NYU. He was successful there also, going on to law school. Upon finishing law school, Fred was hired by a top Wall Street law firm, where he was well on his way to establishing himself as one of their top young lawyers. Then a newspaper reporter took notice of Fred and his growing prominence and decided to see if there was a story there. There was. The reporter traced Fred back to his old neighborhood and learned about his past history. He wrote a story about it, praising Fred for the way he had overcome his past and made a respectable life for himself. But some of Fred clients had a different reaction. They were not comfortable dealing with a former hood from Brooklyn, so they asked that he be taken off their accounts. The firm complied with their wishes and ultimately let Fred go, deciding that he was too much of a liability to keep. This again illustrates the importance of privacy in allowing people the freedom to realize their potentialities. Once the information about his past had leaked out, Fred was no longer able to maintain his professional persona in relation to his clients, a persona that he had proved he was capable of fulfilling.
Autonomy is part of the broader issue of human dignity, that is, the obligation to treat people not merely as means, to be bought and sold and used, but as valuable and worthy of respect in themselves. As the foregoing has made clear, personal information is an extension of the person. To have access to that information is to have access to the person in a particularly intimate way. When some personal information is taken and sold or distributed, especially against the person's will, whether it is a diary or personal letters, a record of buying habits, grades in school, a list of friends and associates or a psychological history, it is as if some part of the person has been alienated and turned into a commodity. In that way the person is treated merely as a thing, a means to be used for some other end.
Privacy and Power
Privacy is even more necessary as a safeguard of freedom in the relationships between individuals and groups. As Alan Westin has pointed out, surveillance and publicity are powerful instruments of social control. 8 If individuals know that their actions and dispositions are constantly being observed, commented on and criticized, they find it much harder to do anything that deviates from accepted social behavior. There does not even have to be an explicit threat of retaliation. "Visibility itself provides a powerful method of enforcing norms." 9 Most people are afraid to stand apart, to be different, if it means being subject to piercing scrutiny. The "deliberate penetration of the individual's protective shell, his psychological armor, would leave him naked to ridicule and shame and would put him under the control of those who know his secrets." 10 Under these circumstances they find it better simply to conform. This is the situation characterized in George Orwell's 1984 where the pervasive surveillance of "Big Brother" was enough to keep most citizens under rigid control. 11
Therefore privacy, as protection from excessive scrutiny, is necessary if individuals are to be free to be themselves. Everyone needs some room to break social norms, to engage in small "permissible deviations" that help define a person's individuality. People need to be able to think outrageous thoughts, make scandalous statements and pick their noses once in a while. They need to be able to behave in ways that are not dictated to them by the surrounding society. If every appearance, action, word and thought of theirs is captured and posted on a social network visible to the rest of the world, they lose that freedom to be themselves. As Brian Stelter wrote in the New York Times on the loss of anonymity in today's online world, "The collective intelligence of the Internet's two billion users, and the digital fingerprints that so many users leave on Web sites, combine to make it more and more likely that every embarrassing video, every intimate photo, and every indelicate e-mail is attributed to its source, whether that source wants it to be or not. This intelligence makes the public sphere more public than ever before and sometimes forces personal lives into public view." 12
This ability to develop one's unique individuality is especially important in a democracy, which values and depends on creativity, nonconformism and the free interchange of diverse ideas. That is where a democracy gets its vitality. Thus, as Westin has observed, "Just as a social balance favoring disclosure and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures strong citadels of individual and group privacy and limits both disclosure and surveillance is a prerequisite for liberal democratic societies. The democratic society relies on publicity as a control over government, and on privacy as a shield for group and individual life." 13
When Brandeis and Warren wrote their seminal article on privacy over one hundred years ago, their primary concern was with the social pressure caused by excessive exposure to public scrutiny of the private affairs of individuals. The problem for them was the popular press, which represented the "monolithic, impersonal and value-free forces of modern society," 14 undermining the traditional values of rural society, which had been nurtured and protected by local institutions such as family, church and other associations. The exposure of the affairs of the well-bred to the curiosity of the masses, Brandeis and Warren feared, had a leveling effect which undermined what was noble and virtuous in society, replacing it with the base and the trivial.
Even apparently harmless gossip, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.... Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence. 15
For Brandeis and Warren, privacy was a means of protecting the freedom of the virtuous to maintain their values against the corrupting influence of the mass media that catered to people's basest instincts.
Although the degrading effect of the mass media is still a problem, today a more serious threat to freedom comes from governments and other large institutions. Over the last century, governments have developed sophisticated methods of surveillance as a means of controlling their subjects. This is especially true of totalitarian states, as the passage from Westin quoted above indicates. The Soviet Union, Communist China, Nazi Germany, Fascist Italy and white-run South Africa all used covert and overt observation, interrogation, eavesdropping, reporting by neighbors and other means of data collection to convince their subjects that independent, "antisocial" thought, speech and behavior was unacceptable. In many cases the mere presence of the surveillance was enough to keep people in line. Where it was not, the data collected was used to identify, round up and punish elements of the population that were deemed dangerous. For example, Ignazio Silone, in his book Bread and Wine, described the use of surveillance in Fascist Italy in this way:
It is well-known [says Minorca] that the police have their informers in every section of every big factory, in every bank, in every big office. In every block of flats the porter is, by law, a stool pigeon for the police.... This state of affairs spreads suspicion and distrust throughout all classes of the population. On this degradation of man into a frightened animal, who quivers with fear and hates his neighbor in his fear, and watches him, betrays him, sells him, and then lives in fear of discovery, the dictatorship is based. The real organization on which the system in this country is based is the secret manipulation of fear. 16
While totalitarian regimes may not seem as powerful or as sinister as they did 50 years ago, surveillance is still used in many places as an instrument of oppression. For example Philip Zimmerman, the author of the PGP (Pretty Good Privacy) data encryption program, reports receiving a letter from a human rights activist in the former Yugoslavia that contained the following testimonial:
We are part of a network of not-for-profit agencies, working among other things for human rights in the Balkans. Our various offices have been raided by various police forces looking for evidence of spying or subversive activities. Our mail has been regularly tampered with and our office in Romania has a constant wiretap. Last year in Zagreb, the security police raided our office and confiscated our computers in the hope of retrieving information about the identity of people who had complained about their activities. Without PGP we would not be able to function and protect our client group. Thanks to PGP I can sleep at night knowing that no amount of prying will compromise our clients. 17
More recently social media and the Internet played major roles in the "Arab Spring" uprisings in the Middle East, causing Egypt and Libya to shut down the Internet in their countries in an attempt to stifle dissent. 18 In China there has been an ongoing battle between the government and activist groups over government monitoring and censorship of the Internet. 19
Even in a democracy, there is always the danger that surveillance can be used as a means of control. In the United States, for example, where freedom is such an important part of the national ethos, the FBI, the CIA, the National Security Agency (NSA) and the armed forces have frequently kept dossiers on dissidents. The NSA from 1952 to 1974 kept files on about 75,000 Americans, including civil rights and antiwar activists, and even members of Congress. During the Vietnam war, the CIA's Operation Chaos collected data on over 300,000 Americans. 20 Since then the NSA has had an ongoing program to monitor electronic communications, both in the U.S. and abroad, which has led to constant battles with individuals and groups who have sought to protect the privacy of those communications through encryption and other technologies. 21
Some of the most famous incidents of surveillance of dissidents, of course, occurred during the Nixon administration in the early 1970s. For example, when Daniel Ellsberg was suspected of leaking the Pentagon Papers, an internal critique of government conduct of the Vietnam war, Nixon's agents broke into the office of Ellsberg's psychiatrist and stole his records. 22 And it was a bungled attempt at surveillance of Nixon's political opposition, as well as illegal use of tax returns from the IRS, that ultimately brought down the Nixon administration. 23 More recently, during the 1996 presidential campaign, it was revealed that the Clinton White House had access to the FBI investigative records of over 300 Republicans who had served in the Reagan and Bush administrations. The Clinton administration claimed it was all a mistake caused by using an out-of-date list of White House staff, while the challenger Bob Dole accused them of compiling an "enemies list." >sup>24 Whatever the motivation, the head of the FBI termed the use of the files "egregious violations of privacy." 25
Since the 9/11 terrorist attacks in 2001, there has been even greater urgency in the government's efforts to monitor the activities and communications of people, both foreigners and its own citizens, in order to identify and prevent terrorist threats. The Patriot Act, passed less than two months after 9/11, greatly expanded the government's authority to intercept electronic communications, such as emails and phone calls, including those of U.S. citizens. As a result government agencies have been building the technological and organizational capabilities to monitor the activities and communications of their own citizens. For example, Wired magazine revealed in a recent report how the National Security Agency
has transformed itself into the largest, most covert, and potentially most intrusive intelligence agency ever created. In the process—and for the first time since Watergate and the other scandals of the Nixon administration—the NSA has turned its surveillance apparatus on the US and its citizens. It has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it's all being done in secret. To those on the inside, the old adage that NSA stands for Never Say Anything applies more than ever. 26
The FBI, the Drug Enforcement Agency and the Department of Homeland Security also have many programs to monitor citizens in general, not just those who are under suspicion. These efforts include sifting through media references, 27 tracking chatter on social networks, 28 and monitoring peoples' movements through license plate scanners 29 and video cameras. 30
The mere knowledge that American citizens could be the subjects of surveillance can in itself have a chilling effect on political freedom. "Now it is much more difficult than it once was to dismiss the possibility that one's phone is being tapped, or that one's tax returns may be used for unfriendly political purposes, or that one's life has become the subject of a CIA file. The realization that these activities might take place, whether they really do or not in any particular instance, has potentially destructive effects on the openness of social systems to innovation and dissent." 31
At times the government in the United States has gone beyond surveillance and intimidation and has used the data gathered as a basis for overt oppression. One of the most blatant examples is the internment of over 100,000 Japanese Americans, most of them American citizens, during World War II. The Justice Department used data from the Census Bureau to identify residential areas where there were large concentrations of Japanese Americans, and the army was sent in to round them up. They were taken away from their homes and held in concentration camps for the duration of the war. 32
Governments do need information, including personal information, to govern effectively and to protect the security of their citizens. But citizens also need protection from the overzealous or malicious use of that information, especially by governments that, in this age, have enormous bureaucratic and technological power to gather and use the information.
But...Privacy is not Absolute
When we speak of privacy, particularly as a right, we focus on the individual. The individual must be shielded from the prying curiosity of others and from prejudice and discrimination. The individual's autonomy and control over his or her person must be preserved. The individual must be protected from intimidation and coercion by government.
These are important considerations; but not the whole story. For the human person does not exist purely as an individual. People live their lives as members of society. In fact they are members of many societies, which may include families, circles of friends, work organizations, churches, voluntary associations, civic organizations, city, state and nation. 33 These associations are not merely preferences or matters of convenience. To be human is to be in relationship. Therefore social obligations, that is, all that is required to maintain the complex Web of relationships in which each person lives, are fundamental human obligations. Moreover each individual has an obligation to contribute to the good of society, the so-called "common good."
These obligations include the sharing of personal information, which is a necessary part of any meaningful relationship, whether it is personal, community, political or bureaucratic. Friendship necessarily requires self-revelation, as do family relationships on an even more intimate level. Belonging to a voluntary association entails sharing something of one's history, one's ideas and aspirations, and one's current circumstances. And government requires a certain amount of information on its citizens in order to govern efficiently, provide for their security and distribute benefits and obligations fairly. The same in general can be said of employers and their employees.
The obligation to share information for the common good does not always take precedence over the right to privacy. Rather the two must be held in balance, for both are necessary for a fully human life. According to John B. Young, in his book on privacy,
The right to privacy is inherent in the right to liberty, but the life of the individual in all societies has to strike a balance between freedom and discipline. Insufficient freedom will subdue the spirit of enterprise and resolution on which so much of civilized progress depends, whereas unbridled freedom will clash inexorably with the way of life of others. It is inevitable therefore that there must be some measure of restraint on the activities of members of a community, and in order to control people in a modern and complex society information about them and their behavior is indispensable. The concomitant price which the individual must pay can be measured in terms of loss of privacy. 34
Even Alan Westin, the great privacy advocate acknowledges,
The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus 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. 35
These considerations lead to the following principle on information privacy: Just as the human person pursues personal freedom and self-realization in the context of relationship, with all the obligations, constraints and tensions that that entails, so the right to privacy coexists with, and is circumscribed by, the obligation to serve the common good.
Based on the above considerations, we can define an invasion of (informational) privacy as having the following elements:
The third condition recognizes that a person comes to be known in many ways in the course of everyday life, and that is not, in itself, an invasion of privacy. It may be well known to Jason's neighbors that he goes jogging through the neighborhood at 7 AM every day. There is no invasion of privacy there because it is reasonable to assume that he would be observed and recognized by them. If he wanted his jogging to be completely private, he would have to find a more secure and sheltered place to do it. However, there is still an issue of how widely this information should be publicized. Just because some people know something, it does not mean that everyone ought to know. For example, if his neighbors compile every shred of observable evidence about Jason's life -- for example, that he and his wife often have loud arguments, that their trash is full of empty whiskey bottles, and that their son visits a probation officer once a month -- and publish it in the local newspaper, it may well be a moral, if not a legal, invasion of privacy.
Condition 4 should be interpreted restrictively as well. Sensitive information collected without the consent of the subject because it was necessary for the public welfare should be available only to those who have a legitimate need for it.
Invasions of privacy as we define them here are of concern for a number of reasons:
Michael McFarland, S.J., a computer scientist with extensive liberal arts teaching experience and a special interest in the intersection of technology and ethics, served as the 31st president of the College of the Holy Cross.
1. See, for example, Jolie Solomon, "Breaking the Silence," Newsweek (May 20, 1996): 20-22.