Review: [untitled]

Author(s): William Parent

Reviewed work(s):
In Pursuit of Privacy: Law, Ethics, and the Rise of Technology by Judith Wagner DeCew
Source: Ethics, Vol. 109, No. 2 (Jan., 1999), pp. 437-439
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2989486
Accessed: 22/09/2008 01:33

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 Book Reviews 437
are good. Space constraints being what they are, I can only apologize for not
discussing them.
The whole volume is well worth reading and rereading by anyone interested
in practical reason and its relation to morality.

DAVID SCHMIDTZ
UniversityofArizona

DeCew,Judith Wagner. In Pursuit of Privacy: Law, Ethics, and the Rise of Technology.
Ithaca, N.Y: Cornell University Press, 1997. Pp. 199. $15.95 (paper).

The philosophical literature on privacy is dominated by two different concep-

tions of its meaning. On the one hand, there are narrow definitions which con-
ceive of privacy exclusively in terms of information, though advocates of infor-
mational privacy differ among themselves concerning the kind of information at
stake and the importance assignable to the issue of personal control over it.
Broader definitions of privacy, on the other hand, usually incorporate some ver-
sion of the information conception but extend its meaning to embrace personal
decision making of various kinds. American law reflects this conceptual division:
tort jurisprudence and Fourth Amendment cases affirm the values of informa-
tional privacy while recent U.S. Supreme Court decisions on contraception, abor-
tion, and the right to die discuss privacy as a matter of making certain kinds of
decisions free from government intrusion.
Judith Wagner DeCew's book attempts an ambitious defense of a broad con-
ception of privacy. This is one of the book's virtues. Too often philosophers and
lawyers simply assume that 'privacy' connotes much more than matters of infor-
mation acquisition and dissemination. DeCew's defense, which takes up chapters
3 and 4, follows her criticism of my narrow definition in chapter 2. Because these
criticisms clearly reveal her deepest intuitions about the subject, I will spend
some time now responding to them. I proposed that we understand 'privacy' to
mean the condition of not having undocumented personal information about
oneself known to others. By 'documented information' I mean information that
belongs to the public record and is thus publicly available. Personal information
can belong to one of two categories: it can involve matters that people in a given
culture choose not to reveal about themselves (except perhaps to close friends
and relatives) or it can involve matters that particular individuals feel unusually
sensitive about and therefore choose not to disclose about themselves.
DeCew raises several objections to this characterization of privacy. (1) It is
difficult to deny that a widely distributed reprint of previously published infor-
mation about an individual A in obscure documents would be a further invasion
of A's privacy. (2) Again supposing that information about A belongs to the pub-
lic record, then by my account even the most insidious snooping to obtain it
would not invade A's privacy, yet most of us would find that this would diminish
our privacy, even if done by someone unaware that the facts in question were
already documented. (3) Assuming that B trains a telescope on A but discovers
nothing that isn't already documented, we would nonetheless properly accuse B
438 Ethics January 1999
of invading A's privacy. (4) That no undocumented personal knowledge about A
is obtained by B's constant pressing of questions on A does not remove the privacy
invasion. (5) My descriptive emphasis on what is a part of the public record leaves
no room for a normative sense of privacy encompassing interests worthy of pro-
tection (pp. 31-34).
My responses to these objections can be simply summarized. Regarding (1),
DeCew seems to assume that the more information the public knows about an
individual the greater the loss of privacy she suffers. But suppose that A walks in
the nude around his block and is spotted by one of his neighbors who photo-
graphs him and publishes the picture in the local paper. Now many more people
know more about A than they did before but we should not condemn the pub-
lication on privacy grounds given the decidedly public nature of the photo-
graphed behavior. To the extent that we criticize the snooping in (2) it is because
of our belief either that the actions would indeed uncover undocumented per-
sonal facts about A or that they constitute unwarranted harassment and trespass
against A. B's actions in (3) certainly intrude upon A's seclusion and solitude.
Moreover it is difficult to gainsay that B probably would discover undocumented
personal information about A by his persistent eavesdropping. In (4) B's actions
are most accurately condemned not in the language of privacy but as invasions of
A's personal security and peace of mind. Finally, the question raised in (5) of what
is and is not legitimate for the public to know, while important, belongs to a
complete normative theory of privacy of the kind I never intended to offer.
DeCew's defense of a broader conception of privacy relies fundamentally on
the intuition that there is a sphere of human conduct that is nobody else's busi-
ness except that of the actors themselves. So 'the private' designates, roughly,
whatever is not the legitimate concern of others. Because this characterization
does not allow for justifiable invasions of privacy DeCew amends it to designate
whatever is generally not the legitimate concern of others. And by way of further
clarification, DeCew adds: "We can say that an interest in privacy is at stake when
intrusion by others is not legitimate becauseitjeopardizes or prohibits protection
of a realm free from scrutiny,judgment, and the pressure, distress, or losses they
can cause" (p. 64).
DeCew finds much to admire in Ferdinand Schoeman's similarly expansive
analysis of privacy in his Privacyand SocialFreedom.For both philosophers, privacy
protects us from inappropriate expressions of social coercion that can preclude
personal self-expression and the free association with others. It also shields us
from intrusions and pressures arising from others' access to our persons and
to details about us. Not surprisingly, then, DeCew adopts Schoeman's threefold
classification of privacy:informational privacy,or control over information about
oneself; accessibility privacy, including physical access and physical proximity;
and expressive privacy, which safeguards a domain for expressing one's self-
identity (pp. 73-78).
There are serious difficulties with DeCew's account. The key expression 'not
the legitimate concern of others' is significantly ambiguous. It can mean 'what
others have no legitimate business knowing about' or it can mean 'what others
have no legitimate business stopping a person from doing'. The former meaning,
when suitably qualified, captures a bona fide privacy issue. The latter meaning,
however, makes it clear that the value really at stake is personal liberty. Further-
more, DeCew's definition of informational privacy paradoxically implies that
 Book Reviews 439
control over publicly available facts is a legitimate aspect of privacy. It also mis-
leadingly implies that if A lacks control over information about herself, she can-
not have any privacy. This is misleading because the persons with such control
simply may not obtain or disseminate any undocumented personal facts about A.
Finally, the idea of accessibility privacy counterintuitively means that physical ac-
cess to A even in public places diminishes her privacy.
Fortunately the last five chapters of In Pursuit of Privacy do present more
convincing arguments. In chapter 5, for example, DeCew persuasively rebuts
the feminist critique of privacy as yet another device for perpetuating misogy-
nous violence in the home. In chapter 6 she argues thatJohn Hart Ely's famous
and influential criticism of the Supreme Court abortion case Roe v. Wade,need
not lead to the conclusion that privacy is irrelevant to the proper legal resolu-
tion of this issue. And in chapter 7 DeCew attacks the Supreme Court's ruling
that the Constitution does not protect gays who engage in consensual sodomy
(though her attack is compromised conceptually by relying on the broad notion
of privacy).
Chapter 9 deals with drug testing and privacy. Here DeCew defends the rea-
sonable position that while drug abuse mustn't be tolerated in the workplace or
anywhere else where it threatens the safety of persons, great care must be taken
to ensure that testing programs do not gratuitously intrude on the privacy of
those subjected to them. She also correctly emphasizes that there are legitimate
concerns about the accuracy of these tests as well as serious questions concerning
their efficacy in achieving the laudable goals of improving employees' safety and
job performance. In chapter 10 DeCew usefully discusses the moral and legal
challenges to privacy arising from database information storage and new tele-
phone computer services like caller identification. Her objective is to support
ways of managing these technologies so that we can enjoy their benefits without
suffering unnecessary losses of privacy. But she misconstrues the essential threat
to privacy as a loss of control over sensitive information, while it should be
identified with how much, if any, of this information is actually acquired and
disseminated.
To sum up, In Pursuit of Privacy makes a significant contribution to the on-
going philosophical debate on the nature and value of privacy. In particular,
DeCew's attempt to furnish a systematic justification of a broad conception of
privacy is worth careful study and her analyses of present-day dangers to privacy
deserve every citizen's thoughtful attention.

WILLIAM PARENT
Santa Clara University

Engstrom, Stephen, and Whiting, Jennifer, eds. Aristotle, Kant, and the Stoics:
Rethinking Happiness and Duty.
New York: Cambridge University Press, 1996. Pp. ix+ 310. $54.95 (cloth); $18.95
(paper).

As the editors of this volume point out in their lucid introduction, recent work
in both the Aristotelian and Kantian traditions suggests that the gulf between