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Privacy without the right to privacy.
Some commonplace claims:
"Smith violated Jones's privacy by peeping through her blinds." "The doctor violated her patient's privacy by telling the patient's employer of her condition." "What adults do with other consenting adults in their bedrooms is properly private." Many in these parts would accept such judgments as clear and coherent. We also are likely to think that such judgments are important, as evidenced by the steps people take to protect their privacy against breaches, and by our tendency to feel harmed and diminished when they occur. Privacy is even thought important enough as a human good that we must have a right to it. Philosophically, however, it is also commonplace to regard the concept of privacy as a mess, and to hold that significant work is needed to show its coherence as a concept, if it can be done at all. Some have also argued that there may not be a right to privacy, or that if there is, it must be much narrower than it has recently been construed. (1) These worries would appear to be related: the justification and content of a right to privacy would seem to depend upon the proper understanding of the concept itself. So theorists have labored to find a concept that might help justify, for instance, the U.S. Supreme Court's reasoning from its finding of a "right to privacy" in the Constitution to its rejection of certain state restrictions on access to contraception, abortion, pornography, or the practice of homosexual sex. Further inferences from the nature of privacy, it may be hoped, could help answer recent questions as to whether certain new forms of surveillance, investigation, or data accumulation violate a right to privacy, and whether decisions about reproductive technology, organ selling, or end-of-life matters are properly protected by such a right. This paper considers critically whether and when a proper understanding of the concept of privacy can support inferences to specifications of particular rights against the government, either limiting or requiring its intervention for the sake of protecting privacy. Leaving aside the familiar worries about the coherence of the concept of privacy, I will argue that there is an inherent tension within the thought of a "right to privacy" as something that a state may be called upon to define and enforce. Almost any conceivable law or state action that aims to protect a right to privacy will at the same time tend to work against other interests that may properly be understood as interests in privacy; thus, such means are quite generally liable to generate difficulties of coherence. If correct, this suggests that better answers to questions like "What do (or should) we mean by privacy?" may not make a fight to privacy coherent. This essay explores the nature of these difficulties, with a view towards evaluating them and showing their significance. Properly understood, the concept of privacy has some normative value for guiding law, policy and judicial decision, but its value is more limited than is usually suspected, and is also too tightly connected to contingent historical circumstances to serve as the target of a broad, unwavering right. I will urge that debates (especially political debates, though not exclusively those) that apparently depend on thought about privacy will often be better conducted in terms that don't invoke privacy or the right to privacy. In working out the above, it should also become clearer why so many discussions of privacy seem to bog down in intractable difficulties, and how changing the terms of these debates may make them more productive. This essay is in four section...See the full content of this document
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