“What is Privacy?”
My Personal Thoughts

Introduction

It is quite difficult to develop an intuitive understanding of privacy to be able to define it and circumscribe it. In the article “On the Pursuit of Happiness… and Privacy” author Adam Thierer mentions that defining “privacy” is a legal and philosophical nightmare. Few concepts engender more definitional controversies and catfights. As someone who is passionate about his own personal privacy. He then provides thoughts from a wide variety of scholars that make it clear just how frustrating this endeavor can be. Even the authors Rachel Finn and David Wright and Michael Friedewald echo the same opinion in their publication “Seven types of privacy”.

Privacy has been a topic of discussion since the days of Aristotle. In the book “One of Politics”, Aristotle carefully distinguishes between the oikos – the private family life – and the polis – the public realm of political affairs. The essay On Liberty, published in 1859, by the English philosopher John Stuart Mill and The Right to Privacy written by Samuel D. Warren II and Louis Brandeis and published in the 1890 Harvard Law Review are seminal articles related to privacy. The following quote from the article “The Right to Privacy” is worth noting and though it was written in 1890, it is relevant even today.

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone”. Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.”

Perspectives of Privacy

In “What Government Should Know about Privacy: A Foundation Paper” author Colin J. Bennett says

“Although there is no consensus on how to define privacy, even in English- speaking nations, there is common agreement that privacy is something that every human being needs at some level and in some degree. This point is substantiated by a wealth of social psychological and anthropological evidence which has suggested that every society, even the most primitive, adopts mechanisms and structures (even as simple as the building of walls) that allow individuals to resist encroachment from other individuals or groups.1 Moreover, Dystopian visions of a world without any privacy have had a profound and symbolic effect on public consciousness in most societies. We may not know what privacy is, but we can all agree that something precious is lost when it goes away.”

Privacy is a fundamental (though not an absolute) human right recognized in the Universal Declaration of Human Rights. As per Article 12 of UDHR:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Similarly International Covenant on Civil and Political Rights (ICCPR) 1966, Article 17 states the following.

1. “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
2. “Everyone has the right to the protection of the law against such interference or attacks.”

Types of Privacy

There are seven types of privacy as per the publication “Seven types of privacy”.

1. Privacy of the person encompasses the right to keep body functions and body characteristics (such as genetic codes and bio-metrics) private. Privacy of the person is thought to be conducive to individual feelings of freedom and helps to support a healthy, well-adjusted democratic society.
2. Privacy of behaviour and action includes sensitive issues such as sexual preferences and habits, political activities and religious practices. However, the notion of privacy of personal behaviour concerns activities that happen in public space, as well as in private space.
3. Privacy of communication aims to avoid the interception of communications, including mail interception, the use of bugs, directional microphones, telephone or wireless communication interception or recording and access to e-mail messages.
4. Privacy of data and image includes concerns about making sure that individuals’ data is not automatically available to other individuals and organisations and that people can “exercise a substantial degree of control over that data and its use”.
5. Privacy of thoughts and feelings addresses that people have a right not to share their thoughts or feelings or to have those thoughts or feeling revealed. Individuals should have the right to think whatever they like.
6. Privacy of location and space means that individuals have the right to move about in public or semi-public space without being identified, tracked or monitored. This conception of privacy also includes a right to solitude and a right to privacy in spaces such as the home, the car or the office.
7. Privacy of association (including group privacy) is concerned with people’s right to associate with whomever they wish, without being monitored. This has long been recognised as desirable (necessary) for a democratic society as it fosters freedom of speech, including political speech, freedom of worship and other forms of association.

Privacy related laws in India

As stated here, the Constitution of India does not patently grant the fundamental right to privacy. However, the courts have read the right to privacy into the other existing fundamental rights, i.e., freedom of speech and expression under Art 19(1)(a) and right to life and personal liberty under Art 21 of the Constitution of India. However, these Fundamental Rights under the Constitution of India are subject to reasonable restrictions given under Art 19(2) of the Constitution that may be imposed by the State.

Recently, in the landmark case of Justice K S Puttaswamy (Retd.) & Anr. vs. Union of India and Ors., the constitution bench of the Honorable Supreme Court has held Right to Privacy as a fundamental right, subject to certain reasonable restrictions.

Additional References:

1. https://gilc.org/privacy/survey/intro.html#fnlnk0020
2. https://privacyinternational.org/explainer/56/what-privacy
3. https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life
4. https://www.oecd.org/digital/privacy/

#Rights #Privacy #HumanRights #PrivacyLaws #MastIndia #Freedom #FreedomofSpeech #Mastodonindians #India #RighttoPrivacy

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In the article “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, the author Daniel J. Solove argues that the nothing to hide argument, even in its strongest form, stems from certain faulty assumptions about privacy and its value. The author appropriately says the following.

“The problem, in short, is not with finding an answer to the question: “If you’ve got nothing to hide, then what do you have to fear?” The problem is in the very question itself.”
“The deeper problem with the nothing to hide argument is that it myopically views privacy as a form of concealment or secrecy.”

In this context I also quote a comment, as an interesting perspective, from a related discussion in Hackers News.

The problem with the “I’ve got nothing to hide” argument is it’s not “you” who decides what is “right” or “wrong”. The entity doing the “spying” determines what is right or wrong. “You” might think “x” is ok, however the “spying” entity may have the opposite view. And it is the “spying” entity’s opinion that matters, not yours, because it always them that have the power and authority in determining what is “right” or “wrong”. Moreover, definitions change on what is “right” or “wrong”.

#Rights #Privacy #HumanRights #PrivacyLaws #Freedom #FreedomofSpeech #RighttoPrivacy

cc: @srijit