Privacy

• 1. Introduction

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  Privacy is the ability of an individual or group to seclude themselves, or information about themselves, and so to express themselves selectively. The word comes from the Latin privatus, the past participle of the verb privere, meaning to be deprived of. In Roman usage, privatus marked things set apart from what is public, personal and belonging to oneself rather than to the state. From that single word grows a question that has occupied philosophers, courts, and zookeepers alike. Why does a person, or even a gorilla behind glass, need a space that no one else can see into? Aristotle drew a line between the public sphere of the polis and the private sphere of the oikos, the household. Centuries later, the same line runs through prison architecture, smartphone searches, and the archives of social media companies. The chapters ahead trace how that line keeps moving, and who decides where it falls.

• 2. The Philosophers

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  John Locke, the English philosopher who lived from 1632 to 1704, argued in his Second Treatise of Civil Government of 1689 that a man is entitled to his own self through the natural rights of life, liberty, and property. He held that government existed to protect those rights, guaranteeing individuals private spaces for personal activities. Georg Wilhelm Friedrich Hegel, the German philosopher who lived from 1770 to 1831, separated moralität, an individual's private judgment, from sittlichkeit, the rights and obligations defined by an existing corporate order. Jeremy Bentham, the English philosopher who lived from 1748 to 1832, took the opposite view, reading law itself as an invasion of privacy and judging legal actions by their contribution to human wellbeing. John Stuart Mill modified Hegel's notions in his 1859 essay On Liberty, defending individual liberty against the tyranny of the majority and treating privacy as essential to personal development and self-expression. The Book of Sirach, in the Jewish deutero-canonical tradition, ranks privacy among the basic necessities of life. The Qur'an instructs the faithful not to spy on one another and not to enter houses other than their own without the occupants' consent.

• 3. The Watching Eye

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  Jeremy Bentham designed a prison in 1791 called the Panopticon, and from it came the idea of the Panoptic effect. The design produced a general awareness of being watched that could never be confirmed at any single moment. Michel Foucault, the French philosopher who lived from 1926 to 1984, concluded that under the Panopticon a prisoner had no real choice but to conform to the prison's rules. George Orwell carried that dread into fiction with the novel 1984, published in 1948. The book follows Winston Smith in the totalitarian state of Oceania, where the ruling Party, led by Big Brother, holds power through mass surveillance and limits on speech and thought. Critics have drawn parallels between Orwell's vision and the present, noting that large social media companies, rather than governments, now monitor a user's data and decide what may be said online, often for monetary purposes. Scott Skinner-Thompson, a law professor, argues in Privacy at the Margins that marginalized and vulnerable groups suffer disproportionately, both more likely to be required to share information and more severely harmed when their privacy is breached.

• 4. The Courts Decide

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  Samuel Warren and Louis Brandeis published an 1890 article titled The Right to Privacy, generally regarded as the first American publication advocating privacy. The two jurists argued for a right to be let alone, written largely in response to the rise of newspapers and photographs made possible by printing technology. In 2001, Kyllo v. United States held that using thermal imaging to reveal previously unknown information without a warrant violates privacy. In 2012, the Supreme Court ruled unanimously in United States v. Jones that placing a GPS tracker on Antoine Jones's car without a warrant infringed the Fourth Amendment, extending that amendment from physical to digital intrusions. In 2014, Riley v. California held unanimously that searching David Leon Riley's phone without a warrant was unreasonable, distinguishing the personal information on a phone from trivial items. In 2018, Carpenter v. United States found that the FBI's warrantless use of Timothy Ivory Carpenter's cell phone records violated the Fourth Amendment, ruling that information sent to third parties can still fall under reasonable expectations of privacy. Edward Snowden later released operations revealing that the National Security Agency continued to breach the security of millions through mass surveillance.

• 5. The Surveillance Economy

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  Vance Packard's book The Naked Society shaped American discourse on privacy in the 1960s, as people began to see how changes in technology were changing the concept itself. Alan Westin's Privacy and Freedom shifted the debate from how government controls a person's body toward the accessibility of digitized personal data, arguing that a person should have complete jurisdiction over their own information. Digital ad brokers such as Facebook and Google encouraged behavioral advertising, handing website owners code snippets that track users through HTTP cookies, with the resulting data sold into a mass surveillance industry. Data brokers planted inside apps built a 350 billion dollar digital industry focused especially on mobile devices, a concern sharpened by the Facebook-Cambridge Analytica data scandal. Facebook, as of August 2015, was the largest social-networking site with nearly 2.7 billion members uploading over 4.75 billion pieces of content daily, while Twitter held 316 million registered users. Microsoft reports that 75 percent of United States recruiters and human-resource professionals research candidates online, and that 70 percent have rejected candidates based on what they found. A study of 1.5 million people in a mobility database showed that four spatio-temporal points are enough to uniquely identify 95 percent of them, even when the data is coarse or blurred.

• 6. Many Definitions

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  Helen Nissenbaum's theory of contextual integrity defines privacy as appropriate information flow, where appropriateness means conformance with informational norms specific to a social context. Alan Westin named four states of privacy: solitude, a physical separation from others; intimacy, a close and frank relationship within a pair or small group; anonymity, the desire for moments of public privacy; and reserve, a psychological barrier against unwanted intrusion. Kirsty Hughes added three further barriers, physical, behavioral, and normative, ranging from walls and doors to laws and social norms. Charles Fried held that privacy is not simply an absence of information in the minds of others, but the control we have over information about ourselves. Richard Posner defined privacy as the right to conceal information that others might use to one's disadvantage, and criticized it for reducing market efficiency. Jeffrey Reiman tied privacy to ownership of one's physical and mental reality and a moral right to self-determination. Irwin Altman described privacy barriers as defining and limiting the boundaries of the self. Priscilla Regan argued for a social value of privacy across shared perceptions, public values, and collective components, contending that recognizing privacy as a collective good gives its defenders a stronger basis to argue for its protection.

• 7. Harms And Defenses

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  William Prosser, a legal scholar, created a list in 1960 of activities that privacy protection can remedy, including intrusion into a person's solitude, embarrassing public disclosure, and the use of someone's likeness to advance interests not their own. Daniel J. Solove, working from 2004 to 2008, classified harms such as collection, aggregation, identification through de-anonymization, insecurity from data breaches, secondary use without consent, exposure of taboo information, blackmail, and distortion through lies about a person. Revenge porn and doxxing can turn breaches into direct physical harm, escalating to stalking or swatting, and have been linked to the suicide of Amanda Todd and the suicide of Tyler Clementi. After Amanda Todd's death, the Canadian parliament proposed an anti-bullying motion, but Todd's mother testified against it, saying she did not want to see children victimized again by losing privacy rights. When the Korea Communications Commission required online commenters to register in 2007, malicious comments fell by only 0.9 percent before the system was repealed in 2011. Against such harms, people turn to encryption tools like the Signal messaging app, praised by Edward Snowden, and to anonymizing networks such as I2P and Tor that hide IP addresses from internet service providers.

• 8. Beyond The Human

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  David Attenborough, a biologist and natural historian, said that gorillas value their privacy while discussing a brief escape by a gorilla at London Zoo. He argued that a gorilla's right to privacy is violated when it is viewed through glass enclosures, because the animal knows it is being watched yet cannot control how much an onlooker sees. Overcrowding that strips animals of privacy has been connected to heart disease, high blood pressure, higher infant mortality, and maternal stress. The strain also disorders the way animals present themselves to others of their species and corrodes their relationships. Cotton-top tamarins in zoos engage in less social behavior, including physical contact and sex, than those housed in off-exhibit buildings, while chimpanzees grow more aggressive in the presence of watching visitors. The same logic that led Aristotle to wall off the household from the polis now reaches into an enclosure where a gorilla retreats to an unobserved corner, seeking the one thing the glass will not give it.