Informational Privacy: Is There Another Kind?
posted by:David Matheson // 11:15 AM // February 08, 2005 // Core Concepts: language and labels
In A Few Good Men, Jack Nicholson’s character responds this way to a question about whether the danger he had in mind was grave: “Is there another kind?”
Sometimes, when asked about whether the privacy I have in mind is informational, I want to respond in like fashion: “Is there another kind?” Because, you see, I suspect that all privacy is ultimately informational.
Nevertheless, the view that there are non-informational forms of privacy has almost achieved the status of orthodoxy in the privacy literature. (See, for example, Ruth Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (1980): 432-36; Anita L. Allen, Uneasy Access: Privacy for Women in a Free Society (Rowman & Littlefield, 1988), pp. 18-25; and Judith W. DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca: Cornell University Press, 1997), pp. 33-34.) Support for this view usually proceeds along the following lines: there are ways of invading an individual’s privacy that do not involve acquiring any new information about her; the forms of privacy that can be thus invaded must be non-informational; therefore, there are non-informational forms of privacy.
What are the supposed ways in which an individual’s privacy can be invaded without acquiring any new information about her? Three are commonly pointed to: (1) privacy invasions caused by others directing unwanted attention toward an individual, (2) privacy invasions caused by others intruding into an individual’s personal space (e.g. her private residence), and (3) privacy invasions caused by others getting too close, physically, to an individual. In each of these cases, so the claim goes, there need be no acquisition of new information about the individual.
But needn’t there be? I’m not convinced. In the case of (1), we’re talking about a cognitive activity – attention – and it seems to me that this is precisely a way of acquiring new information about an individual. Take, for example, visual attention. If you were to look at me right now, you would thereby acquire visual information about such things as my present appearance and behavior. This may (or may not) be particularly interesting information about me, but it is still information about me. And the reason I would feel uncomfortable about your looking at me, in situations in which I would, is that wouldn’t like you getting that information.
Now consider (2). Once, while a graduate student in Providence, RI, I had my apartment broken into. I had gone out for an hour or so, and returned to find all the lights on in my apartment, the doors wide open, and those of my belongings not stolen strewn all over the place. I certainly felt that my privacy had been invaded by this intrusion into my personal space, even though I happened not to be in it at the time. But why did I feel this? Just because I felt that the intruders had unwarrantedly acquired new information about me that they had no right to acquire. They found out, for example, what sort of music I liked to listen to (which they treated with apparent disdain: none of my CDs were stolen :)), what sort of furniture I could afford, whether or not I was a smoker, what kind of paper I was currently composing (still open on my laptop, which was stolen), etc. Their crime against me was not merely one of trespass and theft; it was cognitive as well: they found out things about me that they had no right to know.
When it comes to (3), it can hardly be denied that the overly close physical proximity of others can elicit warranted claims about an individual’s invasion of privacy. But, once again, it seems to me that what grounds the claims has to do with the unwanted acquisition of information about the individual. For by putting themselves in such close physical proximity to the individual, others thereby put themselves in a position to direct their attention toward her, and so to acquire new sensory information about her. At least, typically. In cases where others get to close but do not thereby put themselves in a position to acquire any new information, there’s been no invasion of privacy.
To underscore this last point, imagine the following scenario. One individual, A, walks right up to another, B, coming within inches of her nose. But because A is severely impaired along visual, auditory, and olfactory lines, she has no effective observational powers. So, A is unable to acquire any new information about B, even though she’s way too close to B physically. (She is even, we might further suppose, quite unaware of her proximity to B.) It seems all too obvious that while B might be disturbed by her own knowledge of A’s proximity, she could not reasonably complain that A has violated or diminished her privacy.
So I don’t buy the first step in the above reasoning intended to support the view that there are non-informational forms of privacy, viz. the premise that there are ways of invading an individual’s privacy that do not involve acquiring any new information about her. Every case I can think of in which an individual has her privacy invaded is also one in which others acquire new information about her. And every form of privacy, I’m willing to bet, ultimately turns out to be a kind of informational privacy.
