Support for the Right to Privacy

Scanlon agrees with Thomson that there is no single overarching right to privacy. But in this article he seeks to show that the various rights that make up what we loosely call the right to privacy have more in common than she believes they do. Specifically, he claims that they “have a common foundation in the special interests that we have in being able to be free from certain kinds of intrusions” (Scanlon 1975, 315).

The intrusions that Scanlon has in mind are intrusions into conventionally defined zones or territories. He gives two examples of zones of privacy:

  1. Places, such as the home.
  2. Circumstances in which certain questions are inappropriate, such as questions at a police station meant to elicit a confession out of someone who has requested a lawyer or otherwise invoked a right against self-incrimination. (That was my example; his involved someone asking about salaries at a dinner party. We later added examples from labor law, where there are questions that employers are not permitted to ask employees.)

The zones are conventionally defined and so they can vary from one society to another. But once a conventional definition exists, it establishes places where we can “carry out our activities without the necessity of being continually alert for possible observers, listeners, etc.” (Scanlon 1975, 317).

Scanlon vs. everyone else

Scanlon does not think that privacy rights are necessarily derived from other rights. For instance, he thinks that the zones of privacy are not necessarily determined by property rights. In commenting on Thomson’s case of the picture and the x-ray machine, Scanlon said that he thinks I have the same right to keep a picture from being observed if I am in a hotel room and the picture is borrowed as I would have if I were in my own house and the picture were mine (Thomson 1975, 298–300; Scanlon 1975, 318). This enables him to dispense with the right not to be looked at (Scanlon 1975, 320).

What would Scanlon would say about a picture that is on someone else’s phone? Is that in my zone or not? I suppose you could say that it is, but it seems to me that this would be out of keeping with his main idea. Scanlon’s main idea was that privacy protects places, giving those who are in them the ability to move around without having to worry about being observed. A concern about a picture on a phone is a concern about the publication of information. You could worry about that even if you had no worries about being observed (if, say, you sent the picture voluntarily). So, in my opinion, there is a difference between Scanlon, on the one hand, and Warren and Brandeis on the other.

However, Robert made a pretty good case for thinking that Scanlon could accommodate this sort of case. It would not fall into his first category, but the second one, about circumstances, is still available. He would have to stretch. That was about the inappropriateness of asking certain questions in certain circumstances. But I think I could see how he might be able to do it. Anyway, spelling it out is Robert’s problem.

Is it circular?

Antonio thought that Scanlon’s account of our interest in privacy looked circular. He thought that Scanlon had shown that we have an interest in being free from offensive intrusions and observations. But, he said, that is not the same thing as saying that we have blanket “zones” where we want to be free from any observation at all.

This example might illustrate his point. You are not bothered by being observed in your home by members of your family but you are bothered by being observed by non-members, so the home is not simply a “zone” in which you want to be free from observation. (I just thought of the example now and I am not sure that it illustrates the point Antonio had in mind. So blame me and not him.)

Peter, however, thought that Scanlon’s idea was a good one. He thinks that we do want to have a blanket rule governing particular real or virtual spaces. What we want, according to Peter, is to know in advance when we are liable to be observed. I suspect Peter would say that my example of the family members observing one another in the home fits that model. You know in advance who is and who is not allowed to observe you. And families develop rules about privacy with respect to one another too, he might add.

Key concepts

  1. Scanlon’s theory of conventional zones of privacy
  2. Why Scanlon thinks privacy is valuable
  3. How Scanlon’s theory compares with Thomson’s and Warren and Brandeis’s


Scanlon, Thomas. 1975. “Thomson on Privacy.” Philosophy & Public Affairs 4 (4): 315–22.

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