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Society’s Obligation to Protect Privacy as a Basic Individual Right, Essay Example

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Essay

Suppose the U.S. government believes that an unknown person might be smuggling weapons. The government wants to track his movements. He had an Apple iPhone, and the government can have AT&T pinpoint where he is at nearly all times. A cell phone can work somewhat like a global positioning system device. The cell phone towers must be able to locate his cell phone. Three cell phone towers stay connected to his phone at all times to determine exactly where he is. On the security front, the government’s interest in stopping the smuggling of weapons is very important: Dangerous illegal weapons can threaten all of society, and stopping them makes everyone safer. On the privacy side, what gets weighed is his individual interest in the privacy of his whereabouts. So the balance is between the safety of society versus one individual’s privacy – and the likely outcome is that the security side will win. In this paper, I argue that the balance should not focus on privacy – it should weigh privacy of location for everybody in society. Privacy should be understood as a societal value, not just an individual one.

Traditionally, individual rights have often been recognized as protecting the individual against the “attack” of society based on value and respect for the individual’s independence. Several theories construe privacy in this regard. For instance, Charles Fried similarly analyzes privacy in terms of its significance to the individual (cited in Schoeman 205). For him, privacy is part of the mutual respect between individuals in a society, but is not an essential ingredient of a society of individuals (206). Thus, the importance of privacy is in forming the basis of personal relationships between individuals, not in forming a society of individuals or in forming relationships between people and organizations.

When questions about genetic testing are defined as questions of privacy, the questions become part of a long debate about the meaning and importance of individual privacy. The point at which obligation with regard to privacy enters the process of forming rights is the point which society’s conception emerges from individual’s conception. Elizabeth Neil have found theorists who view privacy and autonomy rights as both bestowed and created by community, but they do not account adequately for the tenacity with which humans stake a claim to these rights (Neil 27). Neither would such claims, were they culturally created, be likely to appear as universally as they do.

Interestingly, however, were society to view these rights from the standpoint of theories that see fundamental natural rights as originally connected to obligation, it could not possible to explain adequately the deep conflicts within a given community over the issue of societal obligation to protect individual privacy. Hence Neil (28) suggests that in spite of the individual’s perception that obligation is inherently due innate, personal properties, it is the case instead that society bestow these rights upon their members. Neil further suggests that this is evidenced in the fact that however “predisposed we may be, by nature or by our perception of our innate properties, to conceive of ourselves as innately dignified, we are not” (28).

Dignity is not an innate property but is, rather, the property that humans perceive as innate by thinking about psychological natural properties and what they signify about human nature. Yet it is the fact of dignity that entails obligation (Neil 28). A conception of individuals as dignified bears moral implication that the respective facts of people as private and autonomous do not. The latter are natural facts, while the former is a moral characterization of those facts.

To understand how society is involved in protecting the innate privacy of individuals, one must understand why society should take measures to protect inviolable, absolute, natural properties. For Elizabeth A. Buchanan (58), virtual inviolability is its own protection. Any attempt along these lines to vindicate societal inaction would have to ignore the important distinction between the natural creation of psychological natural rights and their societal bestowal. To view the virtual inviolability of individual’s privacy as reason to ignore obligation to them is to confuse the impossibility of full violation with the impossibility of partial violation through symbolic transgression (58).

Buchanan views the virtual inviolability of individual’s privacy as reason to ignore an individual’s right to them is to confuse original properties of privacy with bestowed right that attempts shall not be made to transgress those aspects of personhood (59). In this distinction lies the distinction between non-normative privacy as absolute, natural properties that entail no particular obligation and cannot be violated anyway, and normative rights to privacy as bequeathed to the individual by society (59). This is no simple bequest.

One might ask why society opts to attach moral significance to these “innate properties through bestowal of rights” (Neil 32). The intermediary conception of human beings as dignified, which, as the first stage in the moral ontology of natural rights, is constructed from the self-perception of psychological natural properties and precedes the societal bestowal of privacy rights. Before such bestowal can occur, a duty to this emergent conception of people must be constructed (within the individual’s psyche) to impose meaning, or value, upon innate psychological properties by imposing value upon the metaphor of dignity used to represent them (Neil 34).

Hence the moral significance of innate privacy is not born with the bestowal of rights; rather, both that moral significance and those bestowed rights are born from the individual and societal perception that innate privacy means something about people – essentially, that people are dignified (Neil 34). Because the metaphor of dignity is a moral metaphor, it becomes necessary to conceive not only of innate privacy and autonomy but also of this emergent view of people as requiring obligation from each of people towards rights, as yet unspecified, of each other.

“Privacy is inherently personal. The right to privacy recognizes the sovereignty of an individual” (Smith versus City of Artesia). These are the words of one court, but they reflect the views of many in and out of the courtroom. For example, the legal scholar Thomas Emerson demonstrates that privacy is “based upon premises of individuals that the society exists to promote the value and the dignity of the person…the right of privacy…is in essence the right not to partake in the societal life” (545).

Regardless of what areas of life a given society deems inherently private, such designations initially provide two separate protections: they manifestly protect the designated activity, be it intercourse, eating, or going about one’s business, and through that manifest protection, they symbolically protect the inviolate personality, or inviolable psychological properties, of the individual (Buchanan 60). Both these protections are viewed as protections to which individuals have a right. It is important to recognize, however, that each concrete, locally absolute, and “quite transgressible” manifest right to privacy (such as the right to defecate privately or to go unimpeded about one’s business) ultimately exists because of psychologically determined (and culturally sanctioned) necessity of symbolically protecting the elusive, absolute, and inviolable natural property of privacy (Buchanan 60). This “necessity” arises not from innate privacy but from a third entity protected in each instance of bestowal: the ideal of human dignity, which constitutes a moral metaphor for innate privacy, and which sees humans as inherently dignified and worthy of dignity.

Calvin Gotlieb argues that most people do not care enough about privacy to value it – that they make individual calculations about the value of privacy in particular settings or circumstances and trade it off for other values, often convenience. But one explanation for this is that privacy is viewed in an individualistic way. Broadening our understanding of privacy to include its social importance would remove it from a purely individualistic calculation. Colin Bennett also suggests that new forms of dataveillance are straining the traditional theory of informational privacy.

The philosophical thinking about privacy establishes a tension between the individual and society. For example, Barrington Moore notes: “Privacy cannot be the dominant value in any society. Man has to live in society, and societal concerns have to take priority” (274). Although one could quarrel with the view that social concerns have to take precedence, this paper quarrels does society have an obligation to protect privacy as individual’s rights. The assumption is that privacy and society are antithetical, but this is not the case. As John Dewey points out, “framing privacy as a conflict between individual and society is not just philosophically difficult it is overly simplistic” (Dewey 186). A simple dichotomy between individual and society, or between private and public, also fails to take into account the reality that in the modern world people operate in a range of contexts that can be more or less public or private.

One response to the problem of resolving conflicts between individuals and society has been to argue for community interests over individual interests. The social theorist Amitai Etzioni advocates a communitarian movement, because “the pendulum has swung too far toward the radical individualistic pole” (Etzioni 26), and there is a need to have a shrewd mix of self-interest, self-expressiveness, and commitment to all individuals rights and obligations. But if privacy continues to be valued primarily for its importance to the individual or its self-interest, then the community or communitarian values might be viewed as restraints on privacy, as reasons to restrict the area of privacy rather than as a basis for a shared interest in privacy. Privacy is more likely to be regarded as one of those individual rights or demands that must be curbed rather than as part of the commons. A proposal, then, to introduce community as a space between public and private does not appear to resolve questions about privacy’s conflict with society; instead, it raises new questions about the definitions of the commons.

Amitai Etzioni contents that privacy is “a collective license that exempts a category of acts (including thoughts and emotions) from communal, public, and governmental scrutiny” (26).  For him, “privacy is not an absolute value and does not trump all other rights or concerns for the common good” (Etzioni 26). He goes on to explain that how privacy meddles with greater community interests, and also contents that privacy often, though not at all times, “should lose out in the balance” (Etzioni 26).

In contrast, the philosopher John Dewey proposed an alternative theory about the protection of individual’s rights by society. For him, the good of individual and the good of society are often interrelated rather than antagonistic (Dewey 268). Therefore, Dewey, in Liberalism and Social Action, argues that individual rights must be respected based on “the contribution they make to the welfare of the community” (137).

The law often sees privacy rights as individual rights. The U.S. Supreme Court has held the Fourth Amendment rights belong only to the person whom the government is searching. For example, suppose an individual puts some thing in his friend’s bag. The police illegally search it and find his things. The police want to use these things to prosecute him. But, according to the Supreme Court, he can not challenge this search – even though it was improper – because it was not his bag. The reasoning is that his rights were not violated. The search was of his friend, and it involved belonging to his friend. The Supreme Court sees rights as individual possessions, and since his friend’s rights do not belong to him, he is out of luck. Thus it is not merely original, psychological properties that society protects in bequeathing privacy rights upon its members; it protects also this emergent conception of people as dignified. It protects an accepted legal ideal of moral personhood.

Works Cited

Bennett, Colin J. Implementing Privacy Codes of Practice: A Report to the Canadian Standards Association. Rexdale: CSA, 1995. Print.

Buchanan, Elizabeth A. Readings in Virtual Research Ethics: Issues and Controversies. Idea Group Inc. (IGI), 2004. Print.

Emerson, Thomas I. The System of Freedom of Expression. New York: Vintage Books, 1970. Print.

Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999. Print.

Gotlieb, Calvin. “Privacy: A Concpet Whose Time Has Come and Gone” in eds. Lyon, D. and Zureik, E. Computers, Surveillance, and Privacy. Minneapolis: University of Minnesota Press, 1996. Print.

Dewey, John. The Middle Works, 1899-1924, Volume 5. SIU Press, 1983. Print.

Dewey, John. “Liberalism and Civil Liberties”, Social Frontier, February 1936.

Moore, Barrington. Privacy: Studies in Social and Cultural History. Armonk, NY: M. E. Sharpe, 1984. Print.

Neil, Elizabeth. Rites of Privacy and the Privacy Trade: On the Limits of Protection for the Self. McGill-Queen’s Press – MQUP, 2001. Print.

Regan, Priscilla M. Legislating Privacy: Technology, Social Values, and Public Policy. Chapel Hill: University of North California Press, 1995. Print.

Schoeman, Ferdinand D. Philosophical Dimensions of Privacy. Cambridge: Cambridge University Press, 1984.

Smith v. City of Artesia, 772 P.2d 373, 376 (N.M. Ct. App. 1989).

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