Privacy
Rogene Buchholz
Is the state of being free from intrusion or disturbance in one’s private life or affairs (Flexner, 1987). One’s private life is considered to be that which is not of an official or public character, that solitary or secluded part of life that does not include the presence of others. The private part of life is the most intimate and personal part of life that is not exposed to the public or available to outsiders for whatever reason. Privacy refers to that sphere of life where one’s behavior, thoughts, feelings, etc., are unknown to others and are not available for their scrutiny.
The self requires a space of its own to be what it is, and this space is the private world. While people play many social roles in the context of a society, the underlying self, the so called real person, is seen as the ultimate moral unit, de serving of protection and respect in its own right, and not just because of the functional role it occupies. Its sources of dignity are detach able from the specific social fields it occupies. Because the self is not dependent on any particular context for its value, it implicitly imposes a limit on what can be done to beings to achieve any particular social objective. It is capable of standing in opposition to society or taking a critical attitude toward things going on in society, even if this critical attitude is unwelcome.
Yet the self is not an atomic unit independent of other selves. Our dependence on others accounts for most of our moral qualities and accounts for most of what we are and can hope to become. This susceptibility to others is a prime and salutary feature of being human, but it also threatens us in ways that need to be limited. In different historical settings, and in different contexts, different levels of susceptibility to others are appropriate. The concept of privacy limits the amount and effectiveness of social control over an individual. In various set tings, different levels of self direction are appropriate. Privacy protects the individual by limiting scrutiny by others and the control some of them have over our lives (Schoeman, 1992).
On the narrow end of the spectrum, privacy relates exclusively to personal information and describes the extent to which others have access to this information. A broader conception extends beyond the informational domain and encompasses anonymity and restricted physical access. The most embracing characterizations of privacy include aspects of autonomy, particularly those associated with control over the intimacies of personal identity. For advocates of this interpretation, privacy is the measure of the extent an individual is afforded the social and legal space to develop the emotional, cognitive, spiritual, and moral powers of an autonomous agent (Schoeman, 1992).
As social beings, we may be more vulnerable to social than to legal coercion, and the strategies that we construct to combat social coercion will be different from those that insulate us from legal coercion. The strategies that protect individuals from the overreaching power of government are mostly dependent on legal remedies. In the social realm, the defenses will have to be of a more nuanced and informal character as represented in social norms. Given the awareness of the danger of social control, it is curious that so little mainstream philosophical attention is placed on the rights and wrongs of social control mechanisms (Schoeman, 1992).
With respect to privacy, it is interesting to note that the US Constitution does not explicitly mention a right to privacy, although the Bill of Rights does protect what could be called zones of privacy, including the free exercise of religion and security from unreasonable searches and seizures. Not until 1966, however, did the Supreme Court affirm that a right to privacy exists in a case involving a Connecticut law restricting contraception. While this case pertained to marriage and the family, it wasn’t long before this right to privacy was transformed into an individual right that has had many permutations. In Roe vs. Wade Justice Blackmun had the following to say about the constitutional right to privacy:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court of individual Justices have, indeed, found at least the roots of that right in the First Amendment . . . in the Fourth and Fifth Amendments . . . in the penumbras of the Bill of Rights . . . in the Ninth Amendment . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment . . . These decisions make it clear that only personal rights deemed ‘‘fundamental’’ or ‘‘implicit in the concept of ordered liberty’’ . . . are included in this guarantee of personal privacy. (Roe vs. Wade, 410 US 113, 1973)
The Fourth Amendment to the Constitution guarantees the right to be secure in one’s person, houses, papers, and effects against unreasonable search or seizure. The First Amendment affords people free exercise of religion and freedom of speech, the press, and assembly – freedoms we associate with freedom of conscience. The Fifth Amendment ensures that people cannot be re quired to testify against themselves, and the Fourteenth Amendment provides that they cannot be deprived of life, liberty, or property without due process of law. In tort law there are four categories of individual protection: (1) intrusion upon a person’s seclusion, solitude, or private affairs; (2) disclosure of private, embarrassing facts; (3) public disclosure of a person in a false light; and (4) appropriation of another’s name, image, or other aspect of identity, for one’s advantage or profit, without that person’s consent (Schoeman, 1992: 12).
Privacy has been held to be the most comprehensive of all rights and the right that is most cherished by civilized individuals. It has also been described as the kernel of freedom and as the most basic right from which all other freedoms stem (Rotenberg, 1993). Whether privacy is this basic is subject to debate, but there seems no doubt that privacy serves some basic human need, that there is some kernel to the self that needs to be protected from intrusion and from scrutiny by other people. There apparently are some things that must be kept inviolate and unknown in order for humans to have some space that is entirely their own and is unavailable to others.
The question in an advanced society with all kinds of interconnections between people, and where people are dependent on one another for the performance of certain jobs, is: Where does the sphere of privacy end and the public’s need to know begin? Many of the issues that involve privacy in our society can be stated in terms of the individual’s right to privacy versus the society’s need to know. Other issues, particularly with regard to private property, can be stated in terms of the right to use things in one’s own interests versus the public’s right to regulate that usage in the public interest. These questions are complex and have no easy answers.
The rapid advances in computer and telecommunications technology have taken individual records and individual papers from the home and private safes and out of the control of the individual. The record keeping explosion of the computer age has prompted both government and the private sector to keep previously un imagined records and papers relating to the individual (Freeman, 1987). The right to privacy is not absolute in an organized society, for society’s need to know must always be balanced against the individual’s right of privacy in most democratic societies.
With regard to business organizations, privacy is an issue relating to drug testing, testing for AIDS, computer privacy, and other issues. Drug abuse constitutes a significant problem in the workplace, contributing to impaired productivity and job performance, increased accidents and injuries, violations of security, theft of company property, and diminished employee morale. Highly focused programs such as drug testing can be a valuable deterrent in discouraging non users from beginning to use drugs, deterring experimental users from graduating to more serious abuse, motivating non addicted users to discontinue using drugs for fear of getting caught, and challenging addicted users to seek medical help.
Drug testing is especially appropriate in safety related work, particularly where public safety is involved. In 1994, new US federal regulations doubled the number of workers that needed to be tested for drug and alcohol use at work. Government required both random alcohol and drug testing each year for 25 percent of transportation workers in such safety sensitive areas as trucking, aviation, railroads, and pipe lines. Only random drug testing was required before. The rules also covered mass transit workers, and expanded drug testing to intrastate truckers and bus drivers (Newman, 1994).
These new rules were expected to cover 7.5 million workers as compared with 3.5 million before. In addition to the new coverage required by these rules, testing for drugs was on the rise generally, as more companies were testing job applicants and employees. An American Management Association survey reported that in 1993, 85 percent of the 630 companies surveyed had drug testing programs, including 73 percent of manufacturers and 66 percent of financial service companies. Since 1987 the number of companies with drug testing programs has tripled (Newman, 1994).
Drug tests can be applied to many different kinds of samples and materials, but most often urine is tested because of the ease of getting a sample, the speed of conducting the analysis, and the low cost involved. But urine tests can be considered an invasion of privacy because the tests can disclose numerous other details about one’s private life, such as whether or not an employee or applicant is pregnant or is being treated for various medical conditions in addition to evidence of illegal drug usage. Drug testing is less intrusive if the actual giving of the sample is not observed, since most people using the toilet or urinal usually have an expectation of privacy. However, the absence of super vision means that an employee who does use drugs is able to substitute someone else’s ‘‘clean’’ urine or otherwise tamper with the sample.
Testing for AIDS has many of the same problems with regard to privacy, but is different in many important respects. For one thing, there is as yet no cure for AIDS, so identifying people who have the disease will not help them to get on some rehabilitation program. AIDS sufferers also run a greater risk of discrimination than do people on drugs, because the same elements of fear are not present. Once identified as a carrier of the AIDS virus, an individual runs the risk of losing friends, employment, housing, and insurance, despite laws protecting them from dis crimination. Another problem is that the results of testing can be misleading as well as inaccurate and lead to unjust treatment of individuals. In spite of these problems, however, much of the general public believe mandatory testing is necessary, particularly in those instances where there is a risk of exposure, where they are willing to set the right to privacy aside in the interests of protecting public health.
Problems in the computer field traditionally had to do with security breaks into the computer network, the accuracy of credit information, and other such problems. Technological changes have brought other issues on the agenda of concern, such as the monitoring of electronic mail (email) and employee performance. Do employers have the right to read employees’ electronic mail correspondence, or do employees who work on the equipment own the data even though the employer owns the infrastructure or pays for the service? Is it an invasion of privacy to monitor employees’ performance using computer technology without their knowledge? Companies have been encouraged to develop policies on these issues and legislation has been introduced into Congress to require companies to alert workers in advance if they regularly monitor email messages and place limits on how many times a worker could be monitored for performance.
These examples are only a few of the many areas in the workplace where privacy is a concern. The issue, as mentioned before, is generally stated as the employer’s or public’s need to know versus the individual’s right to privacy. This way of stating the issue looks on the surface to be some collective body such as the public pitted against the individual who wants privacy to be respected. However, in the final analysis, the issue really concerns one individual or set of individuals against another individual or set of individuals. People who fly in airplanes are at risk under normal circumstances, and they want to know if they are faced with an additional risk involving pilots who may be on drugs and not able to function properly. Individual managers may want to know what kind of conversations are taking place between employees over electronic mail, but employees want to keep these conversations private, as they do other conversations with fellow employees.
In all of these cases, decisions have to be made about where the zone of privacy ends and where other members of the public have a legitimate right to know in order to protect their own interests. What protections are needed to pre serve that core of the individual and protect that space that is necessary for human beings to function, and what intrusions on this space are valid to promote other people’s legitimate interests in knowing something about that individual and what he or she is doing? These are difficult questions that any society and its institutions have to continually grapple with as technology and society change, bringing up new issues that were not previously of concern.
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