Abstract
This paper argues that individuals do, in a sense, own or have exclusive claims to control their personal information and body parts. It begins by sketching several arguments that support presumptive claims to informational privacy, turning then to consider cases which illustrate when and how privacy may be overridden by public health concerns.
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Notes
This account is similar to Anita Allen and Ruth Gavison’s “inaccessibility” view of privacy and Ernest Van Den Haag and Richard Parker’s “control” theory. See Allen (2003), Gavison (1983, pp. 113–134), Fried (1970, chapter 9), Wasserstrom (1979, p. 148), Gross (1971, p. 170), van Den Haag (1971, p. 147), Parker (1974, p. 280). For a critique of control based accounts of privacy see Judith Jarvis Thomson (1975, p. 295).
The lack of separation leads to the disruption of social relationships and increases of disease, high blood pressure, and heart failure. Calhoun allowed Norway rats, which were amply fed, to breed freely in a quarter-acre pen. Their number stabilized at 150 and never exceeded 200. Paraphrased from Hall (1968, p. 86), Calhoun (1950, pp. 113–122).
“The disorders of Calhoun’s overcrowded rats bear a striking resemblance to… Americans who live in densely packed urban conditions… Chombart de Lauwe has gathered data on French worker’s families and has demonstrated a statistical relationship between crowded living conditions and physical and social pathology. In Manhattan Srole et al. showed that only 18% of the representative sample were free of emotional disorders while 23% were seriously disturbed or incapacitated” (Hall 1968, p. 86).
This view is echoed by Desmond Morris who writes, “Each kind of animal has evolved to exist in a certain amount of living space. In both the animal zoo and the human zoo [when] this space is severely curtailed… the consequences can be serious” (Morris 1969, p. 39).
This view is supported by John Roberts and Thomas Gregor: “… privacy as a set of rules against intrusion and surveillance focused on the household occupied by a nuclear family is a conception which is not to be found universally in all societies. Societies stemming from quite different cultural traditions such as the Mehinacu and the Zuni do not lack rules and barriers restricting the flow of information within the community, but the management and the functions of privacy may be quite different” (Roberts and Gregor 1971, p. 225, italics mine).
Barry Schwartz, in an important article dealing with the social psychology of privacy, provides interesting clues as to why privacy is universal. According to Schwartz privacy is group preserving, maintains status divisions, allows for deviation, and sustains social establishments. As such, privacy may be woven into the fabric of human evolution (Schwartz 1968).
The “Pareto” condition is named after Vilfredo Pareto (1848–1923) an Italian economist and sociologist. One state of the world, S1, is Pareto superior to another, S2, if and only if no one is worse-off in S1 than in S2, and at least one person is better-off in S1 than in S2. S1 is strongly Pareto-superior to S2 if everyone is better-off in S1 than in S2, and weakly Pareto-superior if at least one person is better-off and no one is worse-off. State S1 is Pareto optimal if no state is Pareto superior to S1: it is strongly Pareto optimal if no state is weakly Pareto superior to it, and weakly Pareto optimal if no state is strongly Pareto superior to it. Throughout this essay I will use “Pareto” as a “super-weak” condition—i.e., no one is worsened. (Adapted from Cohen 1995, p. 160.)
Suppose we compare how Friday is when he gets to use and control some value V to his condition where he does not get to use or control V. On this account, whenever anyone exclusively uses and controls V they worsen others. Assuming that water is valuable, Crusoe worsens Friday when Crusoe takes a drink—alas, Friday would be better if he got to drink the water in question even if they are both standing by an endless stream of perfectly good drinking water. Such baselines are indefensible because they produce over-broad accounts of moral bettering and worsening. For more about the difficulties in determining a baseline (see Hubin and Lambeth 1989, p. 489; Kagan 1989, chap. 3).
To adopt a less stringent principle would permit individuals, in bettering themselves, to worsen others. Such provisos on acquisition are troubling because they may open the door to predatory activity. To require individuals, in bettering themselves, to better others is to require them to give others free rides. Both of these standards are open to rational complaint. See Nozick's Robinson Crusoe case in Anarchy, State, And Utopia (1974, p. 185).
Several other points can be offered in support of a Pareto-based proviso as well. A “no harm, no foul” principle leaves “moral room” for individuals to live their lives as they see fit. While consequences matter, there is no maximization requirement—no required trade-offs of someone’s lifelong goals and projects for mere incremental increases in social utility. In this way a Pareto-based proviso accords with our considered convictions regarding respect for persons and at the same time accommodates consequentialist views linking theories of the good and theories of the right.
The following quote from a Chinese military newspaper applies a number of these issues to information war. “After the Gulf War, when everyone was looking forward to eternal peace, a new military revolution emerged. This revolution is essentially a transformation from the mechanized warfare of the industrial age to the information warfare of the information age. Information warfare is a war of decisions and control, a war of knowledge, and a war of intellect. The aim of information warfare will be gradually changed from ‘preserving oneself and wiping out the enemy’ to ‘preserving oneself and controlling the opponent.’ Information warfare includes electronic warfare, tactical deception, strategic deterrence, propaganda warfare, psychological warfare, network warfare, and structural sabotage” (Jiefangjun Bao, Chinese Army Newspaper, cited in Carlin 1997).
A serious objection to this argument is that maybe the risks imposed on individuals through the manipulation of personal information are counterbalanced by other values such as increased opportunities or security. I would counter that the iterated nature of the risks along with the fact that such burdens (and benefits) are imposed, not freely chosen, constitutes a morally relevant worsening.
These considerations provide a compelling answer to what might be called the consent argument against informational privacy. On this view, individuals have no privacy rights because they have—by stepping into the public domain or by sharing information—agreed that others may own and control this information. But even if consent, however thin it might be, is given for the initial disclosure of disparate bits of information, it does not follow that consent has also been given for data shifting and aggregation of this information. The notion of consent implied in this argument against informational privacy may also be challenged. Appearing in public is a necessity for most of us.
Assuming of course that Fred is not shielding immoral and criminal activity.
If both prospective parents have the sickle-cell disease—i.e., there is no “dice rolling,” the child will have sickle-cell anemia—they should be strongly encouraged to adopt or obtain a donor. I hesitate in saying that they should be prohibited from having kids, because I would hesitate in claiming that a life with sickle-cell anemia would not be worth living and that a proper function of government is to prevent such lives.
“STDs can result in irreparable lifetime damage, including blindness, bone deformities, mental retardation, and death for infants infected by their mothers during gestation or birth. In women, STDs can lead to pelvic inflammatory disease (PID), infertility, potentially fatal ectopic pregnancies, and cancer of the reproductive tract” National Prevention Information Network CDC, http://www.cdcnpin.org/scripts/std/std.asp (last visited 3/10/2009).
The economic cost of such a policy is not my present concern.
Anonymous e-cards have been used to contact those at risk with some success. See http://www.isis-inc.org/in-print/PLoS_Report_200810.php (last visited 3/10/2009).
Surprisingly many couples continue to have unprotected sex even after one of them has contracted HIV. In a “European Study of heterosexual transmission of HIV infection around half of the 245 couples taking part continued to have unprotected sexual intercourse despite repeated counseling” (Cowan et al. 1996, p. 249).
Admittedly there may be many causal factors that impact these numbers – e.g., perhaps there are better systems of sex education in Canada and Europe.
For example see European Data Protection Law http://www.dataprotection.eu/ (last visited 3/10/2009).
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Moore, A.D. Privacy, Public Health, and Controlling Medical Information. HEC Forum 22, 225–240 (2010). https://doi.org/10.1007/s10730-010-9139-0
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DOI: https://doi.org/10.1007/s10730-010-9139-0