Scanlon on 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 believed they do. Specifically, 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, not his. Leah added examples from labor law, where there are questions that employers are not permitted to ask employees.)

The zones are conventionally defined. 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).

Among other things, this allows him to dispense with the hated right not to be looked at (Scanlon 1975, 320). Hurrah!

Sydney asked what 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 there is a difference between Scanlon, on the one hand, and Warren and Brandeis on the other.

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