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The Right to Privacy:
A Bibliographic Analysis Essay
Stefani Warmack
Academic affiliation: Oklahoma State University
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The purpose of this paper is to examine scholarship on the issue of privacy while advancing the argument of the right each individual has to privacy. Privacy as defined by Samuel Warren and Louis D. Brandeis in 1890 is “the individual shall have full protection in person and in property…,” however, “it has been found necessary from time to time to define anew the exact nature and extent of such protection” (1). Due to the changes in politics, society, and economics concerning common law, new rights, and the growth of the demands of society, there is a need for a new definition. Furthering their idea, Warren and Brandeis also state with all the changes within society, phrases and words do not constantly mean the same. For example, “the ‘right to life’ served only to protect the subject from battery in its various forms” (1). Now ‘right to life’ means the right to live or die. Warren and Brandeis state privacy should be protected by the government and include intangible and tangible forms of possessions. This article was written in 1890, and Warren and Brandeis’s realm of thinking was small (compared to the larger realm of thinking individuals presently have) therefore, many authors who write about this subject, agree or disagree, cite this article because it is one of the first articles about privacy.

Jeffery Rosen states one of the main points by Warren and Brandeis is they “worried that changes in technology as well as law were altering the nature of privacy” (Rosen 34). Privacy rights were a common fear of late eighteenth century people, which was caused by the changes in technology and law. Changes in technology, such as spy cams, video surveillance, and the internet, threatened privacy because the amount of information a person could obtain on another was unheard of without first knowing them. The changes also made the transitions from pre-industrial to industrial to post-industrial difficult because “what individuals want in an exhibitionist society is not the right to be left alone,” (as Warren and Brandeis ultimately define privacy, due to the changes in society the definition of privacy changes) “but the right to control the conditions of their own exposure” (35). As Warren and Brandeis imply, because of the changes in technology, the definition of privacy needs to be redefined.

Amitai Etzioni, published a book on the limits of privacy in 1999, which includes one specific chapter entitled, “A Contemporary Conception of Privacy” (183). In this chapter, Etzioni cites Warren and Brandeis on how their ideas were published in an article before the twentieth century, as noted earlier. Their ideas and article has helped shape the present idea of privacy; not to mention their article is considered “‘the most influential law review article ever published’” and “served as the basis for hundreds of legal cases in the century that followed” (189). Not only the importance is necessary to state, but also the “novel claim that the right to privacy is conceptually distinct from other freedoms” is noteworthy as well; because this idea was ‘thinking outside the box’ in the 1890’s and this conception still has some truth today (189). The same fears evident in the 1890’s of the government becoming too controlling or not controlling enough is still evident today by contemporary individualists. These individuals also believe new technology and social developments will also deplete the value of privacy; which is taken from Warren and Brandeis. Etzioni states a purpose of writing Warren and Brandeis’s article is the intrusiveness of the press. Not one purpose of Warren and Brandeis’s article is evident or stated in any other article, which signifies the research done by Etzioni.

While the articles prior to and after this article are about privacy in general and in reference to the public, this article by H.J McCloskey entitled, “The Political Ideal of Privacy,” is based on the political ideas of privacy. Simply put, privacy is “in some sense a basic contemporary liberal value,” taken from the notion, “we think much more highly of a society which respects privacy and much less highly of one in which privacy is exposed to invasions” (McCloskey 303). One political idea taken from a common belief is each person is entitled to have the right to privacy, and seen as “a positive right in the enjoyment of which we may, by virtue of it, demand the help of the state, society, and other persons… It may legitimately be overridden and is so overridden in situations such as those of national emergency” (303). (An example of this is the heightened security in the U.S. airports after the attack on September 11, 2001 on the U.S). In reference to the government now making an invasion of privacy a civil offense, a citation of the Warren and Brandeis article is connected to this idea. McCloskey states, “the Warren-Brandeis article was a key step in the development of the law relating to the right to privacy in the U.S.A.” (307). The citation is nothing more than quotes, which are viewed as key points in the Warren and Brandeis article. Nonetheless, a point that is restated by many authors, including McCloskey, is this article is famous for being the first of its kind to have such a change in the government, in response to the article.

Consistent with Warren and Brandeis’s ideas on privacy, Judith Jarvis Thomson believes and views privacy, as do most individuals, to include personal items and possessions. Even though people tend to be more protective of their personal items (intellectual property) than their possessions, people still categorize both intellectual property and possessions the same. The problem with this is personal items and possessions need to be distinguished clearly; what is and is not one or the other. Intellectual property, or personal items, may and do include thoughts, ideas, beliefs, and intangible items. Possessions, however, include any tangible item belonging to a person. This distinction is difficult to make because as 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” (265). Warren and Brandeis touch on this distinction, but do not describe the importance, as does Thomson.

Jeffery Reiman rejects Thomson’s view on privacy which is, “ ‘derivative’” in a sense that “it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy” (Thomson 313). This means all rights have been categorized together and no one has ever said anything about the right of privacy. Since it is an issue today, the other rights also need to be reviewed and changed if need be. Reiman believes “there is something unique and uniquely valuable protected by the right to privacy,” which helps clarify his position on privacy (28). He states that privacy should and does include the thoughts of a person and privacy also “protects the individual’s interest in becoming, being, and remaining a person” (44). This definition includes each person is given the right to privacy equally. Reiman states each person is likely to miss the uniqueness of the protection of privacy. If each person misses the uniqueness, “there may come a time when we think we are merely limiting some personal or property right in favor of some greater good, when in fact we are really sacrificing something of much greater value” (28).

Mark Alfino and G. Randolph Mayes also do not support the position of Warren and Brandeis, and Thomson, along with Reiman. Their purpose is to “show that even in a world haunted by the specter of terrorism, privacy can be conceived as a fundamental moral right… [and] we might even demand such increases in the interest of protecting our privacy” (1). Alfino and Mayes state it is very easy to confuse privacy with the right to private property, as most do, including Warren and Brandeis, and Thomson. In order to sort through the confusion, Alfino and Mayes believe to discard the widely held belief that privacy is not a certain right, but a collection of a few rights that give people power and rule over many domains. “We reject this view, and show below that the domain of privacy can be specified in a way that distinguishes it significantly from other rights” clearly states the stand made by Alfino and Mayes. Alfino and Mayes also state the difference in theories of privacy is the main reason why no one can define clearly, what privacy entails. Their two reasons why theories are different are: “(1) in some theories the right to privacy is the right to restrict access to the person him- or herself, and (2) in other theories the right to privacy is the right to restrict access to personal information” (3). Alfino and Mayes believe almost every view falls within these two categories, which is helpful because the complex definition of privacy is easier to understand. The category or statement Alfino and Mayes see James Rachels defend is the “penumbral theory of privacy rights ‘emanating’ from a variety of Supreme Court decisions involving liberty, expression and due process” (9). James Rachels’s name is cited only in reference to the relation of other theories of privacy.

Rachels, another credible author, refers to Thomson’s simplified hypothesis as similar to his own, however, he digs deeper and states, “We could still regard the right to privacy as a distinctive sort of right in virtue of the special kind of interest it protects” (333). Briefly stating a few parts of Thomson’s article gives Rachels more support on his view of privacy, which states there are many controllable and uncontrollable aspects of privacy. The controllable aspects include relationships. Meanwhile the uncontrollable aspects are the things that interfere with those controllable relationships. Reiman and Gini Graham Scott cite Rachels, as the discussion follows below.

Author and scholar, Gini Graham Scott, wrote a book over privacy and the issues, debates, and different ideas and views on privacy. By basing chapter one on the importance of personal privacy, the main idea and importance of privacy is stated early on, which is, “privacy is what makes human” (Scott 9). It is also “important today because we give much more recognition to the individual, and one’s privacy is essential to maintaining that individuality,” which is referred to throughout the book (20). Under the subject heading in chapter one, “The Development of the Need for Privacy,” Scott cites Rachels in connection with the heading and the strong need psychologically for privacy (17). Stating Rachels’s claim privacy is detrimental to an individual because it helps with the development of love, trust, other feelings, and friendships. Privacy helps with the development because it allows each individual to have personal boundaries and allows who does and does not enter into those boundaries.

Along with the information earlier, Jeffery Reiman also cites Rachels in his article and instead of agreeing with Rachels, Reiman finds his theory “both compelling and hauntingly distasteful” (32). Compelling because Rachels’s theory makes ordinary life understandable and supports Reiman because “it meets the basic requirement for identifying a compelling interest at the heart of privacy” (32). However, Reiman finds Rachels’s idea to be “hauntingly distasteful” as well because “it suggests a market conception of personal intimacy” which has become not private or intimate anymore. This change of things were once private and are not anymore is the underlying reason why privacy is important, it leaves something to the imagination. As Rosen states, the Western society has become an “exhibitionist society” in which nothing is private (35). The main idea Reiman wants to pass along is the private sectors of our lives are becoming more open. Later, this will leave each person feeling empty because all secrets are told which leaves nothing behind closed doors.

Warren and Brandeis, and Thomson agree on the idea that privacy includes the intellectual and physical property or as Warren and Brandeis state, “intangible, as well as tangible” (1). Rosen and Etzioni agree on how the changes of privacy have developed according to Warren and Brandeis’s predictions. McCloskey remains neutral and uses Warren and Brandeis article as a historical document on the political topic. Alfino and Mayes, and Reiman disagree with the ideas upon which Warren and Brandeis, and Thomson agree. Rachels and Scott do not disagree or agree with Warren and Brandeis; however, the ideas of Rachels and Scott are similar to Alfino and Mayes on privacy being a fundamental right.

Works Cited

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 (1971): 303-14.

Rachels, James. “Why Privacy is Important.” Philosophy and Public Affairs 4 (1975): 323-33.

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): 295-314.

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.Sept 2003 http://www.louisville.edu/library/law/brandeis/privacy.html.

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