Skip to main content

Too Much Info: Data Surveillance and Reasons to Favor the Control Account of the Right to Privacy


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.

This is a preview of subscription content, access via your institution.


  1. 1.

    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.

  2. 2.

    We write ‘moral right’ to distinguish it from a legal right.

  3. 3.

    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.

  4. 4.

    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).

  5. 5.

    Some control theorists do not include the access-part. See Schoeman (1984, pp. 2–3).

  6. 6.

    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).

  7. 7.

    Moore borrows the Zone Intrusion case from Thomson (1975, p. 298).

  8. 8.

    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.

  9. 9.

    Moore borrows The Loud Fight case from Thomson (1975, p. 296).

  10. 10.

    This means that access and control accounts overlap in some cases. This is so because the AA adds a necessary condition to the CA.

  11. 11.

    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.

  12. 12.

    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.

  13. 13.

    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.

  14. 14.

    This is inspired by Philip Pettit’s idea of ‘republican freedom’. See Pettit (1999).

  15. 15.

    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.

  16. 16.

    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.

  17. 17.

    For another example, see Farber (1993, p. 515).

  18. 18.

    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.

  19. 19.

    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.

  20. 20.

    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’.

  21. 21.

    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.

  22. 22.

    Moore gets this example from Rickless (2007).

  23. 23.

    Note that this counts in favor of our earlier point that the access must be actual access, not only the ability to access.

  24. 24.

    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.

  25. 25.

    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.


  1. Allen, Anita. 1988. Uneasy Access: Privacy for Women in a Free Society. Lanham, MD: Rowman & Littlefield Publishers.

    Google Scholar 

  2. Allen, Anita. 1999. Coercing Privacy. William and Mary Law Review 40(3): 723–757.

    Google Scholar 

  3. Allen, Anita. 2003. Why Privacy isn’t Everything: Feminist Reflections of Personal Accountability. Lanham, MD: Rowman & Littlefield Publishers.

    Google Scholar 

  4. Altman, Irwin. 1976. Privacy: A Conceptual Analysis. Environment and Behavior 8(1): 141.

    Article  Google Scholar 

  5. Berlin, Isaiah. 1969. Two Concepts of Liberty. Oxford: Clarendon Press.

    Google Scholar 

  6. Bezanson, Randall P. 1992. The Right to Privacy Revisited: Privacy, News, and Social Change, 1890–1990. Northwestern University 80(5): 1133–1175.

    Google Scholar 

  7. Bok, Sissela. 1989. Secrets: On the Ethics of Concealment and Revelation. New York: Vintage Books.

    Google Scholar 

  8. Farber, Daniel A. 1993. Book Review: Privacy, Intimacy, and Isolation by Julie C. Inness. Constitutional Commentary 10: 510–519.

    Google Scholar 

  9. Feinberg, Joel. 1985. Offence to Others. Oxford: Oxford University Press.

    Google Scholar 

  10. Fried, Charles. 1968. Privacy. Yale Law Journal 77(3): 475–493.

    Article  Google Scholar 

  11. Gavison, Ruth. 1980. Privacy and the Limits of Law. Yale Law Journal Article 89(3): 421–471.

    Article  Google Scholar 

  12. Goldberg, Ian, Austin Hill, and Adam Shostack. 2001. Trust, Ethics and Privacy. Boston University Law Review 81(2): 407–422.

    Google Scholar 

  13. Gross, Hyman. 1971. Privacy and Autonomy. In Nomos XIII: Privacy, pp. 169–181.

  14. Hoye, Matthew, and Jeffrey Monaghan. 2015. Surveillance, Freedom and the Republic. European Journal of Political Theory 17(3): 343–363.

    Article  Google Scholar 

  15. Inness, Julie C. 1992. Privacy, Intimacy, and Isolation. Oxford: Oxford University Press.

    Google Scholar 

  16. Macnish, Kevin. 2018. Government Surveillance and Why Defining Privacy Matters in a Post-Snowden World. Journal of Applied Philosophy 35(2): 417–432.

    Article  Google Scholar 

  17. Margulis, Stephen T. 1977. Conceptions of Privacy: Current Status and Next Steps. Journal of Social Issues 33(3): 5–21.

    Article  Google Scholar 

  18. Miller, Arthur R. 1971. The Assault on Privacy: Computers, Data Banks, and Dossiers. Ann Arbor: University of Michigan Press.

    Google Scholar 

  19. Moore, Adam D. 2003. Privacy: Its Meaning and Value. American Philosophical Quarterly 40(3): 215–227.

    Google Scholar 

  20. Moore, Adam. 2008. Defining Privacy. Journal of Social Philosophy 39(3): 411–428.

    Article  Google Scholar 

  21. Moore, Adam D. 2010. Privacy Rights: Moral and Legal Foundations. University Park: Pennsylvania State University Press.

    Google Scholar 

  22. Moore, Adam D. 2018. Privacy, Interests, and Inalienable Rights. Moral Philosophy and Politics 5(2): 327–355.

    Article  Google Scholar 

  23. Newell, Bryce Clayton. 2018. Privacy as Antipower. In Pursuit of Non-Domination (Foreword). European Data Protection Law Review 4(1): 12–16.

    Article  Google Scholar 

  24. Parent, W. A. 1983. Privacy, Morality, and the Law. Philosophy and Public Affairs 12: 269–288.

    Google Scholar 

  25. Parker, Richard. 1974. A Definition of Privacy. Rutgers Law Review 27: 275–296.

    Google Scholar 

  26. Pettit, Philip. 1999. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press.

    Book  Google Scholar 

  27. Reiman, Jeffrey H. 1995. Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future. In Privacy, ed. Eric Barendt, 159–176. Dartmouth: Ashgate.

    Google Scholar 

  28. Rickless, C. Samuel. 2007. The Right to Privacy Unveiled. San Diego Law Review 44(4): 809–846.

    Google Scholar 

  29. Roberts, A. 2014. A Republican Account of the Value of Privacy. European Journal of Political Theory. 14(3): 320–344.

    Article  Google Scholar 

  30. Rössler, Beate. 2005. The Value of Privacy. Cambridge: Polity Press.

    Google Scholar 

  31. Rubel, Alan. 2011. The Particularized Judgment Account of Privacy. Res Publica 17(3): 275–290.

    Article  Google Scholar 

  32. Ryan, M., and M. R. Calo. 2010. The Boundaries of Privacy Harm. Indiana Law Journal 86: 1131.

    Google Scholar 

  33. Scanlon, Thomas. 1975. Thomson on Privacy. Philosophy and Public Affairs 4(4): 315–322.

    Google Scholar 

  34. Schoeman, Ferdinand. 1984. Philosophical Dimensions of Privacy. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  35. Thomson, Judith Jarvis. 1975. The Right to Privacy. Philosophy & Public Affairs 4(4): 295–314.

    Google Scholar 

  36. van den Haag, Ernst. 1971. On Privacy. In Privacy: Nomos XIII, pp. 149–168.

  37. van der Sloot, B. 2018. A New Approach to the Right to Privacy or How the European Court of Human Rights Embraced the Non-domination Principle. Computer Law and Security Review 34(3): 539–549.

    Article  Google Scholar 

  38. Warren, Samuel D., and Louis D. Brandeis. 1890. Right to Privacy. Harvard Law Review 4(5): 193–220.

    Article  Google Scholar 

  39. Westin, Alan F. 1970. Privacy and Freedom. London: Bodley Head.

    Google Scholar 

Download references

Author information



Corresponding author

Correspondence to Jakob Thrane Mainz.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

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).

Download citation


  • Privacy rights
  • Surveillance
  • Ethics of surveillance
  • Control account
  • Access account