A Democratic Conception of Privacy

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© 2013 by Annabelle Lever. All rights reserved.

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Published by AuthorHouse   09/21/2015

ISBN: 978-1-4918-7838-5 (sc)

ISBN: 978-1-4918-7839-2 (e)

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TABLE OF CONTENTS

Acknowledgements

INTRODUCTION

CHAPTER 1: PRIVACY AND EQUALITY

A. INTRODUCTION

Roe and the Right to Privacy

Privacy and Equality

Summary

B. MACKINNON’S CRITIQUE OF PRIVACY

The First Objection

The Second Objection

The Third Objection

Summary

C. THE CRITIQUE OF MACKINNON

General Remarks

The Right To Be Let Alone

The Right to Personal Choice and Intimacy

The Public/Private Distinction

Summary

D. CONCLUSIONS

Privacy and Equality

Interdependence

Interdependence and Conflict

CHAPTER 2: THE VALUE OF PRIVACY

A. INTRODUCTION

B. PERSONAL CHOICE AND PRIVATE MATTERS

Privacy, Solitude and Inaccessibility

Privacy and Intimacy

Privacy and the Control of Personal Information

Privacy and Moral Personhood

Privacy and Heterogeneity

C. PRIVACY INTERESTS

D. EQUALITY AND DIVERSITY

E. CONCLUSION

CHAPTER 3: THE RIGHT TO PRIVACY

A. INTRODUCTION

B. THE PROBLEM OF JUSTIFICATION

C. POLITICAL INTERESTS IN PRIVACY

Instrumental Interests in Privacy

Self-Definition

Intimacy

Confidentiality

Privacy Rights and a Democratic Conception of Politics

D. PERSONAL INTERESTS IN PRIVACY

E. CONCLUSION

CHAPTER 4: PRIVACY, EQUALITY AND ABORTION

A. INTRODUCTION

B. WOMEN’S INTERESTS IN ABORTION

General Comments

Women’s Privacy Interests in Abortion

Women’s Political Interests in Abortion

C. THE RIGHT TO ABORTION

D. CONCLUSION

CONCLUDING THOUGHTS

BIBLIOGRAPHY

Selected Supreme Court Decisions

Selected Articles and Books

Endnotes

Dedication

To my mother, and in memory of my father, with much love and many thanks.

ACKNOWLEDGEMENTS

This book is based on my doctoral thesis. Although it is usual to publish one’s thesis first, it was only after publishing On Privacy for Routledge that I also decided to publish my thesis. I have published many academic articles on privacy since 1997, but there are still aspects of my original research on privacy which strike me as novel and which I hope may be helpful to others interested in the philosophy of privacy, although I have left the original references and bibliography as they are. For example, the thesis contains an extended comparison of the personal and political aspects of our interests in privacy and their role in identifying privacy as a distinctive value and justifying it as a distinctive legal right. Although the comparison between our personal and political interests in privacy can be found in my later work, the thesis provides a more sustained discussion of these different aspects of privacy, and of their relationship and importance for a distinctively democratic interpretation of privacy. Likewise, my thesis contains a chapter dedicated to the relationship between women’s claims to privacy and their interests in abortion as well as childbearing. It also contains a discussion of women’s personal and political interests in abortion and of their importance for a democratic commitment to the equality of men and women. While my subsequent publications on privacy extend and deepen ideas which can be found here—relating them to debates over freedom of the press, private property or neuroscience, for instance—there are aspects of my original research which I have not had the opportunity to revisit but which, I hope, may still be of interest to others.

I am therefore grateful to the Ernst and Lucie Schmidheiny Foundation for a grant which enabled me to publish my thesis with AuthorHouse. My husband, Dan Grecu, helped to turn a thesis written on a 1990s Mac Plus into a document readable on 21st century computers, and then helped me to prepare this book for publication. Without his help and encouragement, I don’t think I would have been brave enough (or technically capable) of doing so.

It is also a great pleasure publicly to acknowledge those who made it possible for me to write the doctoral thesis on which this book is based. In the first place, I would like to thank Colin Matthew, Susan Wood and, above all, John Robertson—all of St. Hugh’s College, Oxford. Without their help I doubt that I would have completed my B. A., and am quite sure that I would never have embarked on an academic career. It was a privilege to study History with them. My thanks, as well, to those who supervised, read and helped me to revise my thesis. To Margaret Burnham and Martha Nussbaum I am grateful for their willingness to be on my Committee, and for their helpful comments and perceptive questions, which it would be nice to be able to answer properly someday. Elsa Bardalez and Melissa Williams read, talked through and helped me to rewrite much of this work, as they have with papers, job talks, presentations and proposals before and since.

In Joshua Cohen, I suspect, I got something like the Platonic ideal of an advisor. He supervised this project from beginning to end—and, in fact, provoked me into writing on the right to privacy. His work on democratic theory underpins this thesis and at every stage of the project he has helped me to clarify and to improve its arguments. He is a terrific philosopher, great teacher and a wonderful advisor.

Finally, I would like to thank the people at Social Studies, Harvard University, and the Department of Political Science at the University of Rochester, NY. Social Studies has been a haven for many graduate students struggling to finish their dissertations, a school where we learned social theory as well as taught it. I would particularly like to thank Judy Vichniac, Pratap Mehta, Glyn Morgan and David Peritz for making my last year there so enjoyable and fulfilling, as well as for their help with my thesis. The Political Science Department at Rochester, NY provided me with genial and supportive colleagues, plenty of laughter and thought-provoking ideas and also, it must be said, the relief of a proper job. Their confidence in me made it easier to finish the dissertation, and their generous policy of providing a first term without teaching was invaluable. I am especially grateful to Jim Johnson, who was incredibly generous with his time, ideas, encouragement and jokes. One of the nicest things about finally publishing this book is the chance publicly to thank you all.

INTRODUCTION

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, we can meet the philosophical and political need for a distinctively democratic conception of privacy.

This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government.

Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens.

It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one.

As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature.

The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society.

In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality.

Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy.

This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy.

In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy.

The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government.

These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy.

Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women.

That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so.

This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right.

However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.

However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy.

CHAPTER 1

PRIVACY AND EQUALITY

A. INTRODUCTION

Roe and the Right to Privacy

In Griswold v. Connecticut the Supreme Court held that a right to privacy is implicit in the American Constitution’s protection of individual rights.¹ This right, the Court argued, makes it unconstitutional for the State to prohibit contraceptive use in marital relations. In Eisenstadt v. Baird the Court extended its ruling to cover the use of contraceptives in non-marital relations.² Then, in Roe v. Wade, the Supreme Court held that a woman’s right to privacy is sufficiently broad to cover her right to choose an abortion, rather than to continue her pregnancy.³

Roe held that state criminal abortion laws prohibiting all but life-saving abortions violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. It claimed that

Though the state cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a ‘compelling’ point at various stages of the woman’s approach to term.

Thus, the Court concluded, for the stage of pregnancy prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. For the subsequent stage of pregnancy, through to approximately the end of the second trimester, the state, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Finally it held that For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life, or health of the mother.