The Wrong Kind of Privacy
posted by:Julie Shugarman // 11:59 PM // September 18, 2007 // ID TRAIL MIX
I recently received news that my friend Kelly was found dead in her single room occupancy  hotel in Vancouver, several days after she had died. 
I knew Kelly as a great force working to improve the lives of street level sex workers in Vancouver’s Downtown Eastside (DTES). Feeling far away and alone in my grief, I googled her to see whether anything had been written about her death. To my surprise, I found a handful of references to her (full name included) as a participant in a free heroin trial program, and identifying her as a woman living out of a shopping cart in Canada’s poorest postal code. I was frustrated and angry that this one-dimensional sketch of Kelly, involving incredibly private details about her life, was so accessible. My first instinct was to wonder whether she had consented to having her name published in these articles. But then a different, and rather more pressing set of questions struck me.
Why, when so few people took notice of her daily existence and suffering, when she was allowed to die almost invisibly – was it possible for me to access information about her health,  her poverty and her homelessness on the World Wide Web? I couldn’t shake the idea that Kelly had too much of the wrong kind of privacy.
Kelly didn’t need the state to be kept “out”.  She needed the state and society more broadly to be let “in”, to actively participate in her existence by recognizing her humanity and not remaining indifferent to her poverty. The privacy she needed is that which comes from access to private property and adequate housing. The privacy she needed was that which would have enabled her to develop her identity and sense of self outside of the apathetic public scrutiny that happens on the street where the privileged are indifferent voyeurs of suffering.
What is privacy, anyways?
I write this with the qualification that it is not entirely clear to me what privacy is. I am puzzled about what it means for something to be “private”, what it means for someone, or some identifiable group, to have a right or an interest in “privacy”, or what exactly happens when this peculiar thing known as “privacy” is lost.
Warren and Brandeis famously quoted Judge Cooley’s definition, describing privacy as a right “to be let alone”.  Westin is most frequently attributed with informing us that privacy is about a right to control information about ourselves.  Judith Jarvis Thompson said privacy is a reductive concept that essentially consists of clustered property rights and rights to ones own person.  Ruth Gavison and Anita Allen have identified privacy as a limitation of access to individuals.  Richard Bloustein outlined privacy as integral to human dignity.  Jeffrey Reiman offered a notion of privacy as critical for personhood formation.  Many other wise theorists have offered still more accounts of privacy, more attempts to define what remains, in many senses, opaque.
Legally, the concept of privacy has largely developed in the context of rights of the individual accused as against the state. The Supreme Court of Canada has ruled that privacy is an instrumental right – integral to the realization of fundamental entitlements such as liberty, security of the person, and equality.  Section 8 Charter jurisprudence instructs that there is a distinction to be drawn between public and private space – fostering the notion that we are, at least in some ways, entitled to less privacy in public. 
So what’s the problem?
Almost all of this theorizing and analysis seems to take for granted that everyone has access to private space. It assumes a means to limit or control access to oneself. It further assumes that while privacy may not be a fundamental right in and of itself, it is an intrinsic aspect of human life that must be vigilantly protected from theft by the state, the corporate world, or other actors. The reality is that this access and these means are far from universal and that sometimes state intervention and support is necessary in order to foster privacy and/or the ends that privacy aims to achieve (like dignity, autonomous decision-making, the ability to exercise even constrained ‘choice’ with respect to decisions of a private nature, etc.). 
The notion of an obligation on the state to protect vulnerable people, even from activities that occur in otherwise private settings, is not new. Largely as a result of feminist activism, the idea of a man’s home as his impenetrable castle – a sacrosanct space that should be fiercely guarded from the hands of the law no matter what occurs within – has been challenged and discredited. It is not okay for the state to remain passive when a person is beaten-up or raped by her spouse. The legacy, however, of the historical role of privacy in protecting male domination of women in the marital home is significant and enduring. Martha Nussbaum, for example, warns: “anyone who takes up the weapon of privacy in the cause of women’s equality must be aware that it is a double edged weapon, long used to defend the killers of women.” 
Suspect of privacy, and at the risk of being perceived as taking it up as a “weapon”, I am becoming increasingly interested in arguments that call on the state to facilitate the privacy of historically marginalized groups - like women living and working on the streets. If the law has deemed it inappropriate for the state to ignore abuses suffered by women in their homes, it should not be permissible for the law –and for individuals more generally- to ignore the poverty of women working and living on Canada’s streets. It is their poverty that forces them into public space, and robs them of the privileges of privacy.
Elisabeth Paton-Simpson has pointed out that, “contrary to a widely held assumption in privacy law, reasonable people do not intend to waive all rights to privacy by appearing in public places.”  However, Paton-Simpson does not discuss the reality that many Canadians do not have the option to choose whether to appear in public or whether to leave the relative security of their homes – because they have no homes.  Unlike the people Paton-Simpson discusses, homeless and precariously housed Canadians have no option to “trust” that they will not be made objects of media excesses and advances in surveillance technology.  And yet, while they are infinitely accessible and have no adequate private space within which to develop – they are simultaneously scorned, ignored, and turned into ghosts counted only in studies and statistics. 
Privacy comes in degrees.  A person or group of people can conceivably have too much privacy – or not enough. Indeed, without regular access to private property or the capacity to ensure that personal information is not made publicly available, a person’s existence can be completely lived in the presence of others.
It is understandable why legal and philosophical concern about privacy has been focused on protecting against loss of privacy. I think, however, that we need to refocus our attention on whether in some cases positive action is required to facilitate privacy and the goods associated with it (like dignity, security of the person, and liberty). We need to begin addressing the role of the state, the corporate world, and communities in facilitating conditions conducive to the “privacy” that continues to be erroneously assumed as the starting point for all.
Many of my friend Kelly’s daily rituals, no matter how intimate, were performed in “public” – they were accessible to all who passed by, and yet the three-dimensionality of her life and eventually her death remain invisible to most. We are repulsed, we simply don’t give a damn, or we actively disengage and explain-away our responsibility to pay attention, to do something, and to not let people who are in need of assistance alone. Perhaps until we learn better when it is okay to look away, we should take a positive obligation to facilitate privacy as our starting point – so that women do not go missing or die unnoticed.
 Single room occupancy (SRO) residential hotel units represent the most basic shelter provided for low-income individuals living in Vancouver’s Downtown Eastside (DTES). The people who live in SRO buildings are low-income singles at high risk of homelessness.
 This is not her real name.
 I am writing from a perspective that treats drug use as a health issue.
 This is intended as a reference to privacy as involving an entitlement to keep the antagonistic state out of the lives of individuals.
 Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890) 4 Harv.L.Rev. 193. at p. 195.
 Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967) at p. 7.
 Judith Jarvis Thomson, “The Right to Privacy” (1975) 4 Philosophy and Public Affairs 295-314
 Ruth Gavison, “Privacy and the Limits of Law,” (1980) 89 Yale Law Journal at p. 428; Anita Allen, Uneasy Access (New Jersey: Rowman and Littlefield, 1988).
 Bloustein, E.J., “Privacy as an aspect of human dignity: An answer to Dean Prosser,” (1964) 39 N.Y.U. L. Rev. 963. It is worth noting that Bloustein is referencing “dignity” in what some might call the liberty sense, and not the equality sense. He writes of privacy as dignity offending by explaining: “an intrusion of our privacy threatens our liberty as individuals to do as we will, just as an assault, a battery or imprisonment of our person does.” at p. 1002.
 Jeffrey Reiman “Privacy, Intimacy, and Personhood” (1976) 6 Philosophy and Public Affairs at p. 26
 See for example: R. v. Dyment,  2 S.C.R. 417 at paras. 17, 21-22; R v. O’Conner  4 S.C.R. 411 at paras. 110-113, 115; R. v. Mills,  S.C.J. No. 68 at 91.
 Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.” In R. v. Silveira,  2 S.C.R. 297, at para. 140, Cory J, found: “[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'”. See also: R. v. Tessling,  S.C.J. No. 63, in which the SCC indicated that expectations of privacy are less reasonable when one moves outside of the sphere of the home, at para 22.
 On privacy’s functional role in facilitating dignity, integrity and autonomy see: R. v. Mills,  S.C.J. No. 68 at para 81.
 Martha Nussbaum, “What’s Privacy Got to Do With It: A Comparative Approach to the Feminist Critique” in Women and the United States Constitution: History, Interpretation, and Practice ed. Sibyl A. Schwarzenbach and Patricia Smith (New York: Columbia University Press, 2003) at 164.
 Elizabeth Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places,” (Summer, 2000) 50 Univ. of Toronto L.J. 305.
 Canada has no official data on homelessness – an omission which has attracted critique from the United Nations Committee on Economic, Social and Cultural Rights. For a somewhat dated discussion of this, see: Patricia Begin, Lyne Casavant, Nancy Miller Chenier, & Jean Dupuis, “Homelessness,” Political and Social Affairs Division, Parliamentary Research Branch, 1999. Online: http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/modules/prb99-1-homelessness/index-e.htm
 Elizabeth Paton-Simpson, supra note 15: “To the extent that they have any choice in the matter, [reasonable people] generally refuse to be governed by suspicion and paranoia, preferring to trust that their privacy will be respected. They leave the relative security of their homes in order to survive and participate in society, and their experience and expectation is that public places do afford varying degrees of privacy.”
 In using the term “ghosts,” I am mindful of Jeffrey Reiman’s theory that there would be no person, or moral agent, to whom moral rights could be ascribed if it weren’t for the boundary drawing, person creating, “social rituals” we call privacy. According to Reiman, privacy “protects the individual’s interest in becoming, being, and remaining a person”: Jeffrey Reiman, supra note 10 at p. 25, 43-44. Charles Fried has similarly made the point that privacy is integral “to regarding ourselves as the objects of love, trust and affection” to understanding ourselves “as persons among persons”: Charles Fried, “Privacy” (1967-68), 77 Yale L.J. 475, at p. 477-78.
 I am not speaking here about what courts sometime refer to as “degrees of privacy” in the Charter s. 8 context - as dependent on the type of search (the degree of rights, for example, yielded by a search of a person, as opposed to a search of a person’s home or vehicle). See, for example, Roback v. Chiang,  B.C.J. No. 3127 at para 14.