Philosophy of Law Fall 2019

Scanlon on Privacy

Overview

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. I later added examples from labor law, where employers are sometimes not permitted to ask job applicants about things like felony convictions.)

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. Thomson

Unlike Thomson, Scanlon thinks that the right to privacy stands on its own and that it is not necessarily protected by other rights. For instance, he thinks that the zones of privacy are not necessarily determined by property rights. To see what he is saying, we talked about how handles Thomson’s example of the picture and the x-ray machine. Thomson thinks that someone who uses an x-ray machine to look at a picture I own in my safe violates my right to privacy that is derived from my ownership of the picture (Thomson 1975, 298–300). Scanlon thinks my right to privacy would be violated even if the picture does not belong to me and I put it in a safe that I do not own. For instance, suppose you loaned it to me and I put it in a safe in a hotel room (Scanlon 1975, 318).

If all this works, Scanlon thinks he can do something similar with cases in which a person is observed. He thinks people have the right to privacy, that is, the right to be free from observation, when they are in their privacy zones and not when they are outside of those zones. This enables him to dispense with the right not to be looked at (Scanlon 1975, 320).

Patrick pointed out that the owner of the picture would have had his or her privacy right violated when someone else looked at the picture. But the picture owner had no zone of privacy in that case. The only zones would be those held by the person who rented the hotel room or safe. Jayden replied that the most natural way to interpret this case is that the zone is shared between the picture owner and the person who has rights in the hotel room and safe. If so, the zone theory can explain why both have their privacy violated.

There was another objection worth mentioning that I think was also due to Patrick. It was that two pieces of information could be equally in your zone but one is more private than the other. For example, if you were to enter my house, you could learn what furniture I have in my living room and you could find my financial records. The latter is much more private than the former. Even if it’s a violation of my privacy to enter at all, since my home is presumably one of my privacy zones, it’s a greater violation if you pick up my financial records than it is if you note the furniture in the living room. If so, privacy has to involve more than zones.

Scanlon vs. Warren and Brandeis

Warren and Brandeis are concerned with the publication of information. But Scanlon thinks that your privacy can be violated even if someone does not gather any private information to publish. Suppose you look into my bathroom window hoping to see me get out of the shower but, as it happens, I’m not there. You don’t gather the information you sought, namely, what I look like getting out of the shower, but you have violated my right to privacy, in Scanlon’s opinion. Privacy, for Scanlon, protects you from possible observation. For Warren and Brandeis, it protects you from publication.

Meghna said that Warren and Brandeis could accommodate the “peeping Tom when no one is home” case. It’s an attempted violation of privacy rights. Just as attempted murder is a crime, so is this. I find the zone idea a bit more natural, but this might work too.

In any event, Scanlon also has a different understanding of why privacy is valuable than Warren and Brandeis do. Scanlon maintains it’s valuable because it gives us spaces where we are free from being observed. I think there is some truth to that and I don’t think that Warren and Brandeis would disagree, even though it’s not part of their analysis. At the same time, I’m not sure it’s the whole truth.

Warren and Brandeis lived in a world where there were no zones free from observation. They had servants, so they were always being observed. What they wanted was to control the publication of information about themselves; they wanted to have legal recourse if the servants spread their private information. That’s important too. We don’t always want to be free from observation. We want to share our lives and conversations with others. But we also want some of that to be private. What does that mean for things that are shared? It has to mean something like “don’t publish this.” So I think Warren and Brandeis are onto something important about privacy.

It also tickles me that, in many respects, our world is more like the one that Warren and Brandeis lived in than it is like Scanlon’s world in 1975. There are no zones free from observation for us. Only instead of being observed by servants, we’re being observed by electronic gizmos. This is desirable: electronic servants are great! But it does mean that our concern about privacy has to be oriented towards controlling the disclosure of what they observe rather than preventing them from observing us in the first place.

Main points

Here are the points that you should know or have an opinion about from today’s class.

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

References

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.