On the Question of Privacy

“Dad, Thomas keeps looking at me.”

At one time or another, most people with siblings or multiple children have heard of (or experienced) this problem. On face of it, the complaint seems silly.  So what if they are looking at you!  It doesn’t hurt.  It doesn’t stop you from doing anything.

And yet, as an adult, if someone keeps looking at you, we would call them a stalker.  Why do we sometimes dismiss it out of hand for children?  I suspect it is because privacy is such a unique beast, with both subjective evaluations and objective outcomes, that it is extremely difficult to think about.

I experienced this dilemma recently when writing a research article on privacy.  I found my understanding of the privacy evolving as I worked, with some surprising realizations.

The Subjectiveness of Privacy

For a long time, it boggled my mind that women who wear skimpy swim suits to the beach for all the world to see could suddenly become squeamish if someone saw them in their underwear that arguably covered more of the their body than the swim suits. And yet understanding the difference in the two contexts is the key to understanding privacy.  Privacy is a subjective state.  A state where one chooses to remain away from others – out of sight and out of hearing. It’s a state in which only the individual can choose to be in.

The reasons for desiring privacy are many and varied.  As are the conditions for privacy to exist.  For example, when I’m at the gym, I go into the locker room to change clothes.  Generally people in the locker room are respectful of each other and avert their eyes when someone is changing clothes, providing some semblance of privacy.  And yet, I wouldn’t change my clothes in the front yard of my house even if there are fewer people about.  Privacy is not about how many people see you, it’s about which people see you.

Privacy gets more complicated.  Because it is not just about who sees what, but also when.  When I work on a  paper, I often close my office door.  I want privacy during the process for two reasons, 1) to reduce the number of distractions so I can concentrate and 2) so that others do not see my work in progress which may be full of errors or incomplete thoughts. Yet when I am done writing, I willingly show my work to the world.  I want to pick the time and place to reveal myself and my work.

And so it is with the women in skimpy bathing suits.  At the beach, they want to show off to the world.  Yet when in their underwear, they do not.  It really is as simple as that.  Whether or not that choice seems rational to an outside observer is irrelevant.  Privacy should be respected.

The Objective Nature of Privacy

For many years, I struggled to see the objective nature of privacy.  I kept focusing on the subjectiveness of it all and considered it a confusing mess.  It wasn’t until I read No Corn on this Cobb, a law review article by Amy Peikoff, that it came into clearer focus. In this article, she reconsiders a privacy case where a photograph of a man was used without his consent in an advertisement.  Peikoff did not agree with the judge’s reasoning in the case and offered the following alternative reasoning:

Another alternative would be to recognize that part of what it means for one to have a right over his person is to have the right to control who is allowed to see him. While one who goes out in public at a given time has given his implied consent to be viewed by anyone who happens to be present at that particular place and time, he has not given his consent to be viewed by anyone else; this latter would be made possible by the taking of the photograph. This is why a separate consent for the taking of photographs should be required.

Later, she summarized her thoughts with:

Part of the right to liberty means having the right to exhibit oneself in public as much or as little as one chooses. One who takes another’s photograph and then displays it is, in essence, forcing that other person to be exhibited in public at a time or place not of his choosing, and thus infringing his right to liberty.

This was a novel insight for me – applying the right to liberty to the control of privacy.  Privacy is a liberty we all should enjoy, if and when we choose.  Certainly there are aspects to it that are subjective, but objectively, it’s a state that we are either in or not in.  If someone forcibly removes us from that state, they are violating our right to act as we see fit. This is no different than when one child stares at the other.  The starer is forcing constant surveillance on the other, restricting whatever privacy and peace of mind the other child may want.

In a similar manner, when I close my office door, I expect to maintain my privacy while I work.  Certainly this becomes more complicated when using someone else’s property, such as using ECU‘s computers and buildings, because usage of the property comes with certain conditions.  But those conditions are usually spelled out so you can maintain privacy within that framework.

Bottom line, privacy is chosen in the manner and time that best allows a person to live a flourishing life.  No one can chose for anyone else the manner of that state, all we can do is respect it when it has been chosen.

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