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The Right to Privacy
Academic affiliation: Oklahoma State University
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The definition of privacy by most Americans includes the personal items that belong to a person as well as the private things of life (i.e. the things no one has access to). No author specifically suggests how more and more Americans are coming to believe intellectual property (ideas, thoughts, anything intangible) should be a part of privacy, along with private property (physical, possessions, and tangible); however, the author that follows implies this meaning. Jeffery Reiman states: “The contents of my consciousness become mine because they are treated according to the ritual of privacy” and the contents of consciousness include images, thoughts, memories, and reveries, as an example of the common American idea previously stated (Reiman 43). Personal information is discussed and is considered intellectual property, which is often debatable as well. Therefore, the right to privacy does include intellectual property, (while privacy is perceived to include private
possessions) and invasions of intellectual property privacies need to have the same consequences as invasions of private possession privacies.
Intellectual property includes ideas, thoughts, and anything intangible. In order for this idea to become the standard definition, society, as a whole, needs to agree on the definition of privacy. Judith Jarvis Thomson states, “Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is” (Thomson 295). The unclear idea is the reason why no one knows what privacy means or even what it includes. The common idea and belief that each individual has an equal right to the right of privacy needs first to be accepted. Reiman states, in reference to privacy being a social ritual, “Privacy is an essential part of the complex social practice by means of which the social group recognizes – and communicates to the individual – that his existence is his own” (39). The significance is the emphasis on the communication between the societal group and the individual. In order to include intellectual property as a part or constituent of privacy, the individual has to be recognized. Reiman goes on to discuss that
The relationship between privacy and personhood is a twofold one. First, the social ritual of privacy seems to be an essential ingredient in the process by which ‘persons’ are created . . . Secondly, the social ritual of privacy confirms, and demonstrates respect for the personhood of already developed persons. (39)
The process or order of the ideas from Reiman show how the American society has evolved to include first the privacy that is entitled to each person no matter what, and second that there is respect for each person’s right to privacy.
An example of intellectual property is personal space. It is intangible, but is not considered an idea or thought. However, as Gini Graham Scott states, “We treat the space around us as a private possession over which we want control and ownership, and place boundaries around the self” (19), referring to personal space as not intellectual property. Therefore, the author believes that personal space here is not considered an intangible object that would be a part of the intellectual privacy category; it is considered a possession, which implies a tangible object. However, since the author believes personal space is not intellectual property, this paper suggests otherwise. Personal space is not a tangible object that can be handled; it is an intangible object because it cannot be seen as easily as a chair or a piece of paper. In addition, personal space varies from person to person, which would validate personal space as intellectual property, because if it were tangible, there
would be one set personal space for each person. This discrepancy is evident by some people who believe these ideas and the right to privacy, which needs discussing and clarification.
Privacy includes many different aspects such as “a person’s ability to regulate information about or access to him or herself
. . . the individual’s freedom to make decisions about certain important personal actions, . . .” and “the psychological notion of privacy as a form of personal contact over intimacy” (Scott 10). Three aspects divide each section for a better understanding, according to Scott. The first aspect is the main area where the invasion of privacy comes from. It includes “Where someone intrudes on another person’s space or inappropriately reveals false or secret information about them” (10). The second aspect includes and mainly deals with the “fundamental or constitutional privacy debates” which includes whether or not a person is able or even allowed to make certain important decisions on their own (10). Last aspect includes how much a person will give and accept the love, care, comfort, and affection from another person. What is socially acceptable and what is not. These three aspects of privacy help clarify the meaning of privacy while giving a basis for the debatable argument of what privacy should include and who has the right to invade privacy (i.e. the government, C.I.A., F.B.I., etc) for the benefit of the person(s) involved. In addition to Scott, James Rachels states four reasons why privacy is important. They are as followed: (a) Privacy is sometime necessary to protect people’s interests in competitive situations, (b) someone may want to keep some aspect of his life or behavior private simply because it would be embarrassing for other people to know about it, (c) medical records should be kept private, having to do with the consequences to individuals of facts about them becoming public knowledge,” and in response to credit and job applications and “clearly it is unfair for one’s application for credit [or job] be influenced by such irrelevant matters. (323)
This is important because it proves how vague and unclear the ‘real’ definition of privacy is, (if there really is a ‘real’ definition). There is no one-way to describe privacy or even what it entails, which is the cause for the debate over privacy. When the debate has a solution is only when the ‘real’ definition of privacy will be understood.
The general legislative idea of invasion of privacy is as follows: In the U.S., “the legal approach has, by and large, been by way of making invasion of privacy a civil offense (in some cases, and in important areas, a criminal offense) . . .” (McCloskey 306). In addition, “the concern of lawyers and legislators has been to define what are illegitimate invasions of privacy for which damages can reasonably be wrought and awarded, rather than to define what constitute losses and invasions of privacy” (McCloskey 306). An invasion of privacy can include using an individual's belonging without his or her consent, spying on another person for a reason other than governmental work, reading a person’s mail, and so on. However, in order for invasions of privacy to become civil or criminal offenses, the domains and definition of privacy needs to be stated. According to Mark Alfino and G. Randolph Mayes, they see three domains as important to the understanding of privacy. They are:
(1) Extend the domain of privacy in a way that explains why both physical intrusions and surreptitious collection of personal information can result in violations of privacy; (2) restrict the domain of privacy so that it does not claim as private areas that are clearly a matter of legitimate public interest and access; and (3) define the domain of privacy in a way that shows clearly whether it is an independent domain or fully contained within the domain of other rights. (5)
These invasions of privacy also have a darker side, which is the fact of other people finding and knowing private aspects of a person’s life. The darker side includes all background checks a company does before hiring a person, the “taxation department,” the credit card companies, and the one that is increasing the most lately is the “Internet background checks” (McCloskey 309) and (Rosen 33). The taxation department is a government aspect that is unlikely to be changed because it is for the good of the person, government, and country. The Internet background checks however, are increasing and “it’s not unheard of for former partners to post reports in cyberspace about each other’s performance” (Rosen 33). The posting of a person’s performance is one form of privacy that walks the line. It is an invasion of privacy because what goes on behind closed doors, stays behind those doors, and that is how many people view privacy. The violation of privacy is the act of opening up some
private sector of their lives that makes a person feel vulnerable to judgment and uncomfortable. Therefore, personal information is the same as intellectual property.
The ideas of privacy have evolved to include intellectual property as well as physical or private property. The significance is that in order to understand privacy, the separation between intellectual and private property has to be made. As stated previously, intellectual property includes ideas, thoughts, and anything intangible. Private property on the other hand includes anything tangible, any object, and material item, as the discussion follows.
Personal possessions or private property can include but are not limited to, land, a house, personal belongings, a person’s body, and so on. Samuel Warren and Louis D. Brandeis state, “the common law has always recognized a man’s house as his castle, impregnable, often even to its own officers engaged in the execution of its commands” (Warren 10). This statement shows how even in the late nineteenth century (1890, which is when this article was written) the government realized and acknowledged a man’s personal property. However, the continuation of how they would perceive the government would be protecting a man’s personal property, in the future, would be informational to the way the individuals in the late nineteenth century thought and felt about the future. No author or article previously discussed went into a discussion about how the government protects a person’s personal property. This idea would be influential for further studies and discussions on the idea and right to
privacy. I suggest the government in the present day states they protect each individual equally; however, this is not the case. In order for a person to be treated equally under the law, that person must have money and connections, which is reiterated throughout the news and headlines each day. Without the money and connections, a person will not be treated the same as a person with everything. This is only common sense to each individual in the twenty-first century.
The difference between the debate over the privacy of intellectual and private property is the knowledge that private property has concrete evidence if the privacy of the property was invaded. The intellectual property, on the other hand, has no evidence if the privacy of intellectual property was invaded. For example, if a person trespasses on someone else’s land, that is an invasion of privacy in the private property aspect. It can also be proven with concrete evidence such as pictures, footsteps, fingerprints, and so on. However, when someone steals someone else’s idea or thought and claims it as theirs, there is no concrete evidence to which person the idea truly belonged to in the beginning. None of the scholarship researched goes on to discuss this aspect of privacy and it needs to be discussed. The discussion based on my own observations and opinions is discussed in the following paragraphs.
A way to begin understanding the debate over privacy is to locate which three, basic periods the debate is covering. Amitai Etzioni describes the three as, “Pre-1890” which is “utilizing principles derived from property rights to protect privacy,” “1890 to 1965” which is “generally considered the era during which a right to privacy was developed, largely as a part of tort law,” and “post-1965” which is “a period that has seen a major expansion of the right to privacy, particularly with regard to its constitutional basis” (Etzioni 188). While each period is important alone because of the insight to the individual’s believes of the specific period, there are added details that increase the importance. First, the post 1890 period implies the conservative and Old English ways of life through the privacy of private property. It also was “a reflection of natural law, an inalienable right, and a strongly privileged good” (189). This simply supports the knowledge of conservative and Old
English way of life in the past. Second, 1890 to 1965 period is when the laws of the United States were changed and new ones were added. The debate at this time was “to treat privacy either as a cardinal element of autonomy (or liberty), or to treat these concepts as if they were synonymous with privacy, further extending the reverence for privacy” (190). This quote captures the turmoil that was happening in the country as well as the courtroom for this debate. Lastly, the post 1965 period, which is also referred to as postmodern period is the present and did not happen too long ago. Three major cases that happened at this time were Griswold v. Connecticut in 1965, Eisenstadt v. Baird in 1972, and Roe v. Wade in 1973 (192). All the three cases had an underlying theme, which is “the prevailing conceptions of the common good were very strongly privileged and left relatively little room for considerations of privacy and autonomy” (192). This emphasizes the move from a
conservative way of life to an individualistic and liberal way of life and the transition became to what the United States is like presently. These examples show how the ideas of privacy have changed over time, which in effect does not give a definition of privacy.
This paper has covered the many reasons and aspects of intellectual property and has stated directly that intellectual property should be included as a part and/or form of privacy. In connection with the debatable point of intellectual property being considered privacy, a few examples of the other side of the debate are as followed. These examples should give some insight to what the other side is debating and why.
One example of why intellectual property should not be considered privacy is because there is not evidence that intellectual property that is in question came from one person and not the other. Life, in general, calls for evidence and reasons for why or why not something is good for someone. A concrete example of this would be who owns someone’s body? This question can only be answered in a discussion over patents and subjects related to identity, however, even though it is tangible, it is not something that can be easily owned or possessed. Mark Alfino and G. Randolph Mayes state assumptions made by individuals about privacy, which include, “privacy is seen either as a non-fundamental right, or as a good that alls short of being an actual right at all” (Alfino 2). Privacy is considered by some not to be a right because it is given to each person no matter what race, sex, religion, color, or anything. It is more of a privilege than any right. Another example is “If privacy is
a fundamental moral right, then the right to privacy is not sufficient to justify the claim that individuals are entitled to control over their personal information” (2). This statement goes back to the intellectual property example because personal information is not a tangible object; it is intangible. While the examples of why intellectual property is not privacy and privacy not being a right is not as concrete and researched as the ideas above, the idea and opinion always end up in each person’s mind and lets them make their own decision.
Intellectual property should be considered privacy because an intangible object such as personal information, thoughts, ideas, and so on give free reign to anyone. The different aspects of privacy are needed to understand and gain a complete definition of privacy. That in turn helps each person gain a better understanding of their opinion.
Alfino, Mark and G. Randolf Mayes. “Reconstructing the Right to Privacy.” Social
Theory and Practice 29.1 (2003): 1-18.
Etzioni, Amitai. The Limits of Privacy. New York: Basic, 1999.
McCloskey, H.J. “The Political Ideal of Privacy.” The Philosophical Quarterly 21.85
Rachels, James. “Why Privacy is Important.” Philosophy and Public Affairs 4 (1975):
Reiman, Jeffery H. “Privacy, Intimacy, and Personhood.” Philosophy & Public Affairs
6.1 (1976): 26-44.
Rosen, Jeffery. “Why Privacy Matters.” The Wilson Quarterly 24.4 (2000): 32-8.
Scott, Gini Graham. Mind Your Own Business: The Battle for Personal Privacy. New
York: Plenum Publishing Corporation, 1995.
Thomson, Judith Jarvis. “The Right to Privacy.” Philosophy & Public Affairs 4 (1975):
Warren, Samuel and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review
193.4 (1890). ProQuest Direct. Louis D. Brandeis School of Law Library. 19
Sept 2003 http://www.louisville.edu/library/law/brandeis/privacy.html.
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