Concepts inform our interpretations of the world. As such their definitions are important for our common understanding. On a multidisciplinary project like the Identity Trail, confusion over definitions can undermine our ability to discuss certain issues that rest on complex concepts like privacy. Along these lines I would like to comment on one philosophical project undertaken by Steven Davis during his trip down the Identity Trail, namely his attempt to find a definition of privacy, as outlined in his forthcoming publication (initially entitled) “Privacy, Rights, and Moral Value”. For those who have not (and will not) read the paper I will offer a preamble on the general problem at hand.

The preamble: Haven’t we heard this before!?

Much of my time on the Identity Trail has been spent being exposed to a number of multidisciplinary perspectives on privacy. Some of those perspectives are legal ones, offering up descriptions of how current laws are challenged by the various privacy implicating technologies being used and created every day. Others are sociological, describing how technologies are approached and used with specific focus being placed on the effects or implications of privacy on a technologically mediated interaction. Still others are technologically focused, proposing interesting privacy-enhanced/enhancing technologies often as (partial) solutions to many of the current problems highlighted in the legal and sociological streams of the project. Of course, this description fails to capture the breadth of privacy research being performed on the Identity Trail [1] but it is sufficient to point to a common thread underpinning the work, namely the general concept of privacy.

For anyone interested in understanding privacy, our agreement on the nature of the general term has implications on how we might go about discussing the theories or issues that rely on it (like those mentioned above), just as we might have to understand what is meant by the word ‘equality’ in order that we might have a meaningful discussion about laws or public policies that implicate it. Of course, even the importance of understanding the nature of privacy generates much debate in and among the various fields concerned. Exasperated privacy advocates argue that we could better spend our time focusing on new policies in order to deal with the existing backlog of relatively uncontested privacy concerns, while on the other end of the spectrum academic theorists—philosophers and the like—seem uneasy (as they tend to do) about the grounds upon which the issues are being fought. However, it is clear that arguments centered on privacy, in whatever discipline they reside, rely to some degree on an understanding of the general concept of privacy for their force. Whether the parties are content to implicitly borrow concepts of privacy already established in the literature, or act to modify them (explicitly or implicitly) in some way in response to new research, some particular version of the concept of privacy is nonetheless present in the arguments. Often times discussions and disagreements over the particulars of laws, policies or technologies are largely motivated by disagreements over the particulars of the concepts underscoring them. This should not ring controversial. If we are to agree on the implications of privacy in ethics, law, technology or elsewhere, we can make progress by engaging the concept explicitly on some level, given its omnipresence in the discourse. With that in mind, it is a valuable undertaking to pose the question, “What is the nature of privacy?”, even if privacy issues are of interest yet philosophy is not [2].

Davis’ Definition of Privacy and Some Implications

In response to Davis’ definition I will focus on a tension that it draws out between one’s own preferences and others’ preferences. I believe the tension points to interesting consequences in our understanding of how generalized privacy laws operate relative to the operation of our individual notions of privacy.

Davis defines privacy as the following:

In society T, S, where S can be an individual, institution, or a group, possess privacy with respect to some proposition, p, and individual U if and only if

(a) p is personal information about S.
(b) U does not currently know or believe that p.

In society T, p is personal information about S iff and only most people in T would not want it to be known or believed that q where q is information about them which is similar to p, or S is a very sensitive person who does not want it to be known or believed that p. In both cases, an allowance must be made for information that most people or S make available to a limited number others.
...

Consider the following scenario. On Saturday, Jane is not sensitive about others knowing her sexual orientation. Other people are able to ascertain her sexual orientation though she never offers it up, and other people, in fact, do ascertain her sexual orientation. In addition, most people in Jane’s society are also not sensitive about others knowing their sexual orientation on Saturday. For some reason, on Sunday most people in Jane’s society develop a severe sensitivity to the idea of others coming to know their sexual orientation. Jane does not develop a similar sensitivity on Sunday, and other people continue to ascertain Jane’s sexual orientation through no action on her part.

On Davis’ account Jane suffers a loss of privacy sometime on Sunday. This seems counterintuitive. Jane’s privacy is linked to sensitivities that others develop—the fact that they stop wanting their sexual orientation to be known is presumably due to some sensitivity to the information—without her having to develop the sensitivity on her own. I will call this type of sensitivity a privacy preference, since the definition links preferences about which information is personal, and which is not, directly to the notion of privacy. In this case the privacy preferences of others seem to place some sort of demand on Jane, though it is not clear what the nature of this demand is. Perhaps it suggests that she should consider her sexual orientation to be a sensitive topic. Whatever the case may be, Jane’s continued indifference to the fact that others are able to ascertain her sexual orientation must be squared with the demand resulting from the claim that Jane has suffered a loss of privacy on Sunday due to the privacy preferences of others.

This tension seems even more problematic when we note that one’s own control over personal information features heavily in the definition yet is undermined by it. Not wanting others to know p is at the core of both the sensitive S’s notion of personal information, as it is at the core of the majority’s notion of personal information. The disjunctive in the definition of personal information causes problems in the way that Jane apparently suffers doubly on Sunday; she has apparently suffered a loss of privacy due to the shifting privacy preferences of others while at the same time suffering a loss of control of the very nature of information about her. Though the shifting nature of the information may not strike one as something over which they need to maintain control, many privacy theorists have placed a premium not just on the control of the flow of information, but also on control of the nature of it in order to maintain the contextual integrity that is seen as necessary for privacy [3]. I would suggest further that a loss of control over the scope of personal information is what leads to the strange new demand that is apparently placed on Jane.

I think we can understand where the demand plays out by addressing an underlying tension between the law’s need for a normative conception of privacy and individuals’ need to navigate privacy on their own terms. As a legal (largely instrumental) definition of privacy, I think Davis’ account gains considerable traction [4]. If a majority of individuals feel that certain information is personal in that they are sensitive to others coming to know it indiscriminately, and if there is a demonstrable harm associated with others coming to know it, then the law can justify prohibiting people from trying to come to know personal information.

However, Davis’ definition of privacy loses traction on the level of the individual. If Jane does not consider a privacy loss to have occurred, the normative claim placed on her by society (and the law) will not change this. The result is that we must question whether privacy, as defined by Davis, addresses the same kind of transgression that our concern for personal control over information, i.e. the moral kind, seeks to protect us against? Privacy laws, in the sense that they can be used in cases where individuals suffer harm, certainly address moral privacy concerns. But a focus on the legal/instrumental conception of privacy and control over personal information ignores the sensitivity that motivates our individual, moral, privacy concerns in the first place. If Jane does not feel that her privacy has been violated on Sunday, then the moral notion of privacy may differ necessarily from the legal one, if only so the law may function efficiently.

It has been suggested on the Identity Trail that many people don’t seem to care about their privacy [5]. A great deal of the resulting research has focused on trying to understand why this seems to be the case. Perhaps one factor in the equation is that we mistake the legal notion of the concept for the moral one when evaluating the sensibility of people’s actions in certain contexts. Understood this way the assertion that Jane has suffered a loss of privacy may be isolated to legal concerns. Convincing Jane otherwise may do nothing to secure her privacy.

Notes:
[1] It undoubtedly also fails in its attempt to describe the nature of the work being done in the various streams by the various researchers. To that end I would invite everyone reading this entry to browse the research that has accumulated on the Identity Trail in order to appreciate the full scope of it.
[2] Several collaborators on the Identity Trail have done this explicitly, including Marsha Hanen, Steven Davis and Dave Matheson, to name a few. Others have offered research into privacy implicating activities or technologies, always (I think) with an implicit view to informing or reaffirming our understanding of the concept.
[3] Nagel, T. (1998). Concealment and exposure. Philosophy and Public Affairs, 27(1), 3-30.; Nissenbaum, H. (1998). Protecting privacy in an information age: The problem of privacy in public. Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy, 17(5-6), 559-596.; Rachels, J. (1975). Why privacy is important. Philosophy and Public Affairs, 4, 323-333.; Scanlon, T. (1975). Thomson on privacy. Philosophy and Public Affairs, 4, 315-322.
[4] I invite the legal theorists to correct me in my discussion of the nature and function of laws if they feel compelled to do so.
[5] For example, Jaquelyn Burkell in this ID Trail Mix piece.