In this paper, we argue that there is at least a pro tanto reason to favor the control account of the right to privacy over the access account of the right to privacy. This conclusion is of interest due to its relevance for contemporary discussions related to surveillance policies. We discuss several ways in which the two accounts of the right to privacy can be improved significantly by making minor adjustments to their respective definitions. We then test the improved versions of the two accounts on a test case, to see which account best explains the violation that occurs in the case. The test turns out in favor of the control account.
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The CA, broadly conceived, has been developed by Warren and Brandeis (1890), Westin (1970), Fried (1968), Moore (2003, 2010), Gross (1971), Parker (1974), Parent (1983), Allen (2003), Rössler (2005), Bezanson (1992), Goldberg et al. (2001), Altman (1976), Ryan and Calo (2010), Margulis (1977), Miller (1971), Scanlon (1975), Inness (1992), and many more. The AA, broadly conceived, has been developed by Thomson (1975), Gavison (1980), Bok (1989), Allen (1988), van den Haag (1971), Macnish (2018), and others. Note that some theorists have contributed to both.
We write ‘moral right’ to distinguish it from a legal right.
It is frustratingly difficult to determine which accounts are meant to be descriptive, which are meant to be normative, and which are both. Among the theorists we discuss in this paper, we count Adam Moore’s account as a normative CA, and Judith Jarvis Thomson’s and Kevin Macnish’s accounts as normative AAs.
In this paper, we focus on informational privacy, although many have argued persuasively that privacy also concerns other things like spaces or bodies (See e.g. Moore 2010, pp. 25–26).
Some control theorists do not include the access-part. See Schoeman (1984, pp. 2–3).
Despite the fact that it is very difficult to determine which control theorists think of their respective accounts as normative accounts, we think it is fair to say that the CA1 can at least be distilled from the accounts of Allen (1999), Parker (1974), and Moore (2008), but probably many more. Allen, for example, writes: ‘“privacy” means personal data control or rights of data control; that the right of privacy is a right of personal data control; and that enhancing personal data control by individuals is the optimal end of privacy regulation’ (p. 875).
Moore borrows the Zone Intrusion case from Thomson (1975, p. 298).
One might argue that information has indeed been accessed, although the person forgets the information immediately. That might be so, but it seems that this is not what drives Moore’s intuition that a violation has occurred. What drives his intuition seems to be that control over access has been lost.
Moore borrows The Loud Fight case from Thomson (1975, p. 296).
This means that access and control accounts overlap in some cases. This is so because the AA adds a necessary condition to the CA.
It is very difficult to determine which access theorists think of their respective accounts as normative accounts, but according to the access theorist Macnish the position that access is necessary for a violation of the right to privacy to occur is held by Allen (1988), Bok (1989), Gavison (1980), Gross (1971), Thomson (1975), and van den Haag (1971). The AA1 can at least be distilled from the accounts of these theorists.
By ‘actual access’, the access theorists seem to mean something like ‘actual epistemic access’. A person must have formed an epistemic relation to the information in question in order for actual access to obtain.
The distinction between Positive Control and Negative Control is inspired by Isaiah Berlin’s famous distinction between ‘positive liberty’ and ‘negative liberty’ (Berlin 1969, pp. 121–122). However, there is a crucial difference: negative liberty has a contrafactual definition, while Negative Control does not.
This is inspired by Philip Pettit’s idea of ‘republican freedom’. See Pettit (1999).
We are not the first ones to consider the combination of republicanism and privacy. See, for example, Newell (2018), Roberts (2014), van der Sloot (2018), and Hoye and Monaghan (2015). However, all of these authors write about how privacy is important for retaining republican freedom. Our idea is different. We interpret control in a republican manner in order to improve the control account, so that it can escape certain objections.
Joel Feinberg has argued that in a case like this, Smith has actually violated Jones’s right to privacy by divulging private information unto Jones (Ferinberg 1985, p. 23). As Feinberg would probably agree, this hinges on an interpretation of privacy, which conflates privacy with liberty or autonomy.
For another example, see Farber (1993, p. 515).
Note that this implies that many modern democratic states are constantly engaged in infringing on privacy rights, when relevant state authorities gain access to personal finances, medical records, etc. People may have differing intuitions in this case. Our intuition is that such states do in fact infringe on people’s right to privacy, but that doing so can be justifiable on weightier non-privacy related grounds.
Thanks to Beate Rössler for pointing out the following to us: what is wanted by A in Apology is not the intrusion itself, but to give C the apology. But then let us change the example so that A wants C to intrude, because then A would feel that they were even, and that A no longer had to feel bad about what she did to C. Or, change it so that A has voyeuristic tendencies and likes to be watched or listened to by others. In these cases, A’s right to privacy would be violated (a right is not automatically waived just because the claimant likes that others occasionally violates the right), and yet the intrusion would be wanted.
If Macnish did not intend this to be a discussion of privacy rights, he should have made that more explicit, and probably abstained from using the word ‘violation’.
This does not mean that no violations will occur downstream. For example, publicizing the forgotten diary on the Internet would still constitute a violation. See Moore (2018) for a discussion on issues of forfeiting and waiving rights.
Moore gets this example from Rickless (2007).
Note that this counts in favor of our earlier point that the access must be actual access, not only the ability to access.
In ‘The Access Account of the Right to Privacy’ section, we argued that if the access in the AA is the ability to access, it would collapse into a type of CA. The type of CA it would collapse into is a republican CA.
The distinction between Negative Control and Republican Control saves the control theorists from several objections in which the access theorists seem to think that a loss of Republican Control must be a violation on the CA. This shows the importance of specifying that the CA should only be concerned with losses of Negative Control.
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Mainz, J.T., Uhrenfeldt, R. Too Much Info: Data Surveillance and Reasons to Favor the Control Account of the Right to Privacy. Res Publica 27, 287–302 (2021). https://doi.org/10.1007/s11158-020-09473-1
- Privacy rights
- Ethics of surveillance
- Control account
- Access account