By Brooke Spens
Abstract
The idea of privacy is a convoluted subject evolving alongside technological breakthroughs that have repeatedly reinvented what constitutes an individual’s concept of privacy. This review seeks to characterize primary elements relating to the condition of privacy. Deliberations around the principles of privacy such as autonomy, self-determination, power, and reasonability will be covered. This work aims to define privacy in today’s ecosystem while considering historic approaches that have shaped the environment of personal privacy and data protections. The genealogy of privacy studies holds significance in how privacy has adapted to include the digital space that connects the public and the private space and the challenges resulting from this intersection.
What is Privacy?
The term privacy is frequently communicated in modern language and recited in human rights frameworks, yet it lacks a uniform definition. In a broad sense, privacy allows individuals to establish boundaries around the interference they allow among their physical spaces, bodies, information, and communications.[1] The human ability to exercise the right to privacy and make distinctions between what is public and private is fundamental to wellbeing. Privacy includes the context in which one chooses to disclose information about themselves; this decision is not panoptic, and it is within an individual's right to privacy to divulge information differently depending on the setting and circumstances.[2] The concept of privacy is contentiously debated by scholars across topics like the existence of privacy in modern society, dimensions of privacy, and the role of legal regulation in this sphere. The informational dimension of privacy is the focus for various theorists whilst some tie the informational dimension to bodily, intellectual, communicational, proprietary, behavioral privacies and so forth – this demonstrates the varying views and methods of analysis regarding privacy.[3] One example is digital technologies. Digital technologies span a multitude of privacy classifications beyond informational; with the development of the Internet of Things (IoT), the line between the public space and private space has been further obscured and overlaps with privacies such as physical and bodily privacies.[4] Recently, the Internet Policy Review defines privacy as “a practice to forge subjectivities of self determination,” a definition that is cognizant of adapted privacy meanings given the rise of digital technologies.[5] Early work by W.A. Parent defines the condition of privacy as “not having undocumented personal knowledge about one possessed by others. A person's privacy is diminished exactly to the degree that others possess this kind of knowledge about him”.[6] “Privacy, Morality, and the Law” details additional definitions of privacy such as Parker’s “control over when and by whom the various parts of us can be sense by others,” and foundational definitions by Warren and Brandeis declare privacy as “being let alone.”[7] The idea of limiting access to oneself is echoed throughout texts.
Parallel to the definition and dimensions of privacy, there is discourse around the characteristics that support the concept of privacy. Many scholars believe autonomy to be fundamentally connected to privacy, concurring with normative theories that privacy is a precondition to autonomy and defining privacy as “consist[ing] of a form of autonomy or control over significant personal matters.”[8] Others exclude autonomy, arguing that it is distinguishable from privacy. One such legal decision that has shaped the United States privacy landscape for decades is the U.S. Supreme Court decision Griswold v. Connecticut which struck down a law by the state of Connecticut that attempted to make the use of contraceptives by married couples illegal.[9] The Court’s rationale deemed that one can infer freedom of choice from legal interference in certain decisions from the Constitution, citing the First, Third, Fourth, and Ninth Amendments.[10]This decision equates the right of decisional and personal autonomy with the right to privacy. Although the sentiment surrounding limiting government infringement on citizen’s personal lives is agreed on widely, the justification is disagreed upon.[11] The ability for a person to exercise control over themselves can be used to construct the argument that bodily autonomy is not indicative of bodily privacy and privacy more broadly.[12] Similarly interwoven in the notion of privacy is self-determination. Privacy cannot exist without the presumption and desire of a “self” to regulate. As stated by Matzner and Ochs, “In normative terms the protected autonomy of the sovereign individual gives way to the autonomyto perform identity management.” Identity management is key to privacy in order for individuals to experiment and develop in a space without being subject to public scrutiny – the correlation to autonomy is notable.[13] Purposefully avoiding scrutiny allows for movements to prosper in a society where it would not otherwise[BS1] and is a requirement for a functioning democracy.[14] In society, the topics which individuals choose not to disclose do to the possibility of public scrutiny such as sexuality or health conditions are prone to change throughout time. This occurrence is symptomatic of a changing privacy ecosystem.[15] The tool that enables self-determined consent around privacy is control and power. It is commonly agreed that power is intertwined with privacy. Fear of power and external control can act as a motivator to practice personal privacy to safeguard oneself; by controlling what is known, an individual can reduce the scope of influence they could be subject to.[16] People demonstrate ample concern for power imbalances such as private entities’ access to their data or government monitoring devices.[17] Risk of exploitation threatens the loss of an individual’s control, power, and consequent privacies. The context and methods of privacy infringements inform the reasonability of privacy expectations. Reasonableness as it relates to privacy refers to the assumptions made around the predictability of an environment or the normal flow of relations. An example of this could be choosing to share personal information with a friend under the assumption that no one is listening. There is always a level of risk, the aim is for it to be “reasonable”. Beyond the context of privacy, there are certain practices of privacy infringement that demonstrate what is deemed “reasonable” privacy. For example, someone unknowingly glancing at a phone and seeing an individual’s private message is different than a phone being hacked to intentionally acquire the private information of a person. Inadvertently viewing personal information of another individual is a reasonable risk to that individual’s privacy that they have assumed by viewing this information publicly. What is reasonable has evolved throughout time with the disruption of the normal flow of information resulting from the introduction of digital technologies.
Privacy in a Digital Space
The concept of privacy has changed through time with its genealogy tracing to early ideas of data ownership and private property, and continually evolving with technological innovations since the 18th century.[18] Consistent development has contributed to the difficulty around defining privacy as mediums are routinely modified prompting the question of how the digitization of privacy alters its meaning. One technological trend in recent years is the use of “smart” technologies by consumers; examples range from alarm security systems (Ring), physical digital aids such as home vacuuming robots, to digital assistants like Alexa by Amazon.[19] Beyond demonstrating digital transformations, these “smart” features introduce a key privacy concern in the digital space. Despite the pervasive nature of third-party devices within a private physical space, the extent of these devices monitoring, and data collection capabilities are unknown. The theme of uncertainty extends from devices in public versus private spaces to an unknown level of visibility online. In an example by Matzner and Ochs, an individual in a park understands the extent of perception and interaction to be those who are around them; however, with prevalent access to the internet, “the park-wide audience is replaced by a potentially world-wide audience… rais[ing] the question of whether we actually should have a right to privacy regarding that newly extended audience.”[20] Digital technologies continue to permeate users lives posing new risks like threatened privacy and increased vulnerability. Recalling the components of privacy, the predictability of the flow of information is necessary for a person to make assumptions about privacy and reduce possible infringements. The uncertainty of an environment inhibits the user’s ability to practice privacy safeguards; emerging technologies such as facial recognition, artificial intelligence (AI), augmented/virtual realities, and surveillance technologies all pose challenges to digital privacy. A similar notion is presented in “Understanding Online Privacy” based on Nissenbaum’s thinking it states “because individuals cannot provide truly informed consent, she suggests articulating context-specific norms that govern the collection and sharing of data online.”[21] In addition to modern technologies in the digital privacy environment, the positioning of businesses and advertising is significant. Tech giants like Facebook, Google, and Twitter are largely dependent on data extraction and application to fuel their growth with the digital ad industry being worth an estimated 350 billion dollars.[22] Personal data consists of three categories: data users provide to a system such as social media content and emails, data extracted from devices including surveillance of a personal device or data mining, and data that are “process[ed] on behalf of users,” meaning they are reinterpreted and reapplied.[23] Companies collect browsing activities known as “cookies” and other personal information to sell to third parties who use this information to tailor ads to the user. However, greater awareness of privacy concerns put these practices at risk with The New York Times noting “if personal information is no longer the currency that people give for online content and services, something else must take its place,” with likely candidates being subscription fees and other charges.[24] Prospective changes in business models could reshape the structure of the internet.
Due to effective aggregation methods, the sharing of personal data has acquired a high commercial value which has led some researchers to call for a Personal Data Literacies framework enabling users to understand their personal data and changes to data privacy frameworks more generally.[25] Although users frequently consent to vague ‘terms and conditions’ around the collection of personal data, oftentimes users’ data are extracted unknowingly. One high profile case was the Cambridge Analytica Scandal where thousands of data points were collected on 300,000 Facebook users and affected an overall 87 million users with the company using the data to target for the purpose of political influence in the U.S. presidential campaign.[26] The Cambridge Analytica scandal served as an eye-opening example of user vulnerabilities resulting from the misuse of data and infringements to individual’s privacy in a digital setting. The intrusive harvesting of data span cases on a mass scale of influence to highly targeted data extraction like the deployment of spyware with the aim of censorship.[27] The lacking differentiation between privacy in a public space and a private space, the uncertain nature of the digital space, and the reliance of business models on personal data correlate to what constitutes privacy in today’s world. Privacy as a concept is difficult to define, a characteristic that is emphasized when applied to the digital space. This writing's objective is to illustrate foundational ideas of privacy and the contested nature of the condition of privacy. Historic applications of privacy and data collection have shaped the privacy ecosystem, a landscape that continues to shift and face modern challenges with technological advancements.
Barth, Susanne, Dan Ionita, and Pieter Hartel. “Understanding Online Privacy—A Systematic Review of Privacy Visualizations and Privacy by Design Guidelines.” ACM Computing Surveys (CSUR) 55, no. 3 (2022): 1–37. https://doi.org/10.1145/3502288.
Brough, Aaron R., Bernadette Kamleitner, and Kelly D. Martin. “Physical and Digital Privacy- How Developed and Developing Countries Differ in Both Vulnerability and Protection.” Journal of International Marketing 31, no. 4 (2023): 76–79. https://doi.org/10.1177/1069031x231201362.
Chen, Brian X. “The Battle for Digital Privacy Is Reshaping the Internet - The New York Times,” September 16, 2021. https://www.nytimes.com/2021/09/16/technology/digital-privacy.html.
Douglas, Justice William O. Griswold v. Connecticut, 381 U.S. 479 (1965) (1965). https://supreme.justia.com/cases/federal/us/381/479/#tab-opinion-1945662.
Marmor, Andrei. “What Is the Right to Privacy?” Philosophy & Public Affairs 43, no. 1 (2015): 3–26. https://doi.org/10.1111/papa.12040.
Matzner, Tobias, and Carsten Ochs. “Privacy.” Internet Policy Review, November 29, 2019. https://doi.org/10.14763/2019.4.1427.
Pangrazio, Luci, and Neil Selwyn. “‘Personal Data Literacies’: A Critical Literacies Approach to Enhancing Understandings of Personal Digital Data.” New Media & Society 21, no. 2 (2019): 419–37. https://doi.org/10.1177/1461444818799523.
Parent, W.A. “Privacy, Morality, and the Law.” Philosophy & Public Affairs 38, no. 5 (1983): 292–94. https://www-jstor-org.ezproxy.lib.vt.edu/stable/pdf/2265374.
Taisonthi, Chatmanee, Apirak Nanthaseree, and Elizabeth Donkervoort. “Importance of Digital Privacy in Light of Emerging Technology,” February 21, 2024. https://www.americanbar.org/advocacy/rule_of_law/blog/importance-digital-privacy-light-emerging-technology/.
“What Is Privacy,” October 23, 2017. https://privacyinternational.org/explainer/56/what-privacy.
[1] “What Is Privacy,” October 23, 2017, https://privacyinternational.org/explainer/56/what-privacy.
[2] Tobias Matzner and Carsten Ochs, “Privacy,” Internet Policy Review, November 29, 2019, https://doi.org/10.14763/2019.4.1427.
[3] Matzner and Ochs.
[4] Matzner and Ochs.
[5] Matzner and Ochs.
[6] W.A. Parent, “Privacy, Morality, and the Law,” Philosophy & Public Affairs 38, no. 5 (1983): 292–94, https://www-jstor-org.ezproxy.lib.vt.edu/stable/pdf/2265374.
[7] Parent.
[8] Parent.
[9] Justice William O. Douglas, “Griswold v. Connecticut, 381 U.S. 479 (1965)” (1965), https://supreme.justia.com/cases/federal/us/381/479/#tab-opinion-1945662.
[10] Douglas.
[11] Andrei Marmor, “What Is the Right to Privacy?,” Philosophy & Public Affairs 43, no. 1 (2015): 3–26, https://doi.org/10.1111/papa.12040.
[12] Parent, “Privacy, Morality, and the Law.”
[13] Marmor, “What Is the Right to Privacy?”
[14] Matzner and Ochs, “Privacy.”
[15] Parent, “Privacy, Morality, and the Law.”
[16] “What Is Privacy.”
[17] Marmor, “What Is the Right to Privacy?”
[18] Matzner and Ochs, “Privacy.”
[19] Aaron R. Brough, Bernadette Kamleitner, and Kelly D. Martin, “Physical and Digital Privacy- How Developed and Developing Countries Differ in Both Vulnerability and Protection,” Journal of International Marketing 31, no. 4 (2023): 76–79, https://doi.org/10.1177/1069031x231201362.
[20] Matzner and Ochs, “Privacy.”
[21] Susanne Barth, Dan Ionita, and Pieter Hartel, “Understanding Online Privacy—A Systematic Review of Privacy Visualizations and Privacy by Design Guidelines,” ACM Computing Surveys (CSUR) 55, no. 3 (2022): 1–37, https://doi.org/10.1145/3502288.
[22] Brian X. Chen, “The Battle for Digital Privacy Is Reshaping the Internet - The New York Times,” September 16, 2021, https://www.nytimes.com/2021/09/16/technology/digital-privacy.html.
[23] Luci Pangrazio and Neil Selwyn, “‘Personal Data Literacies’: A Critical Literacies Approach to Enhancing Understandings of Personal Digital Data,” New Media & Society 21, no. 2 (2019): 419–37, https://doi.org/10.1177/1461444818799523.
[24] Chen, “The Battle for Digital Privacy Is Reshaping the Internet - The New York Times.”
[25] Pangrazio and Selwyn, “‘Personal Data Literacies’: A Critical Literacies Approach to Enhancing Understandings of Personal Digital Data.”
[26] Chatmanee Taisonthi, Apirak Nanthaseree, and Elizabeth Donkervoort, “Importance of Digital Privacy in Light of Emerging Technology,” February 21, 2024, https://www.americanbar.org/advocacy/rule_of_law/blog/importance-digital-privacy-light-emerging-technology/.
[27] Taisonthi, Nanthaseree, and Donkervoort.
[BS1]practices without stigmatization or being broadcasted across social network both on the internet), feminist (although allows to be free from stigimization, feminist scholar have argued that it has enabled oppressive...whether it is within a household or an entire state, recognition of infringements are weakened due to the relationality nature of privacy)