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

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. 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).

It’s not obvious that this works. As Bryce and Francis pointed out, Thomson could say that you have a right to privacy in this case derived from your contract with the hotel. If so, the right to privacy still conforms with Thomson’s “simplifying hypothesis” rather than standing on its own. The right would be derived from the contract with the hotel rather than being derived from the property right to the safe, but it would still be derived from other rights as the simplifying hypothesis maintains.

Scanlon’s best move here, in my opinion, is to find a zone where there are no rights. As Jon put it, he needs a zone of personal space. I proposed that a conversation in a public park would be such a zone. It’s private: no one is supposed to listen in. But the people having the conversation don’t have any rights to the space they are occupying other than the right to privacy. If you accept that there is a right to privacy there, it is hard to identify what right it would be derived from.

Zach had an interesting question about this. Suppose that a quiet conversation in a public park is private: you would violate the right to privacy if you listened in. Suppose also that someone walking around naked in a public park has no right to privacy: you would not violate this person’s rights by looking at him or her. What’s the difference? Why is the park a privacy zone for the first case but not the second? I think that’s a delightful question and I’m happy to say that I don’t know the answer. Have at it!

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 that Brandon and I didn’t care for (Scanlon 1975, 320).

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 (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.

They also have different understandings of why privacy is valuable. 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 but 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 too.

I also think that Izzy had a point when she said that in many respects our world is more like the one that Warren and Brandeis lived in. There are no zones free from observation. 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