An Unalienable Right to Privacy

Philip Berne - Aug 24, 2010
An Unalienable Right to Privacy

With all the furor over privacy after Facebook introduced its new Places application, I started to think about what privacy really means as a concept. The reaction to Facebook Places ran a startling gamut. On one side people are screaming about George Orwell, whose book 1984 is like the privacy junkie’s version of Hitler. It’s an argument stopper. It’s also science fiction, but a sci-fi parable, at that. On the other side are those who are completely indifferent to Facebook’s privacy issues. These people don’t care and they don’t see the problem.

[Image credit: Idea Grove]

It seemed strange that the issue could be so divisive. Isn’t there an implied benefit to privacy? Don’t we all have in us some innate longing for privacy, and a resistance to intrusion? Even more importantly, I wonder if privacy is instrumental in the success of our democracy and our civilization. Do we need privacy like we need freedom of speech, or freedom to petition the government for a redress of grievances?

Privacy is a strange concept. We like to think that privacy is a right granted to us as human beings by our creator. We have the right to freedom of speech. We have the right to defend ourselves with weapons. We have the right to privacy. But that’s not really true. First of all, the word privacy is never mentioned explicitly in the U.S. Constitution, though there exists a patchwork of laws that together implicitly guarantee our rights to a private existence, to some extent. But there is no clear definition of privacy. That’s because privacy is not a right, it’s a state of mind.

The Constitution doesn’t deal with states of mind, but the Declaration of Independence sure does. In particular, the second sentence, which declares that all men (I’m quoting, forgive the 300 year old sexism) have certain unalienable rights, which include life, liberty and the pursuit of happiness.

Why not include privacy? I’m not naïve enough to suggest that our country’s founding fathers couldn’t have conceived of invasions of privacy as insidious and penetrating as we deal with every day in our modern, digital age. But clearly privacy wasn’t a primary concern. Except, in a way, those unalienable rights seem to imply some right to privacy, don’t they?

Privacy is a form of freedom. It’s a form of liberty. It’s a happiness. There is no doubt that a feeling of privacy, a feeling of being free from invasive and prying eyes, free from speculation and judgment, is ingrained in our subconscious minds. Privacy is a feeling that we have, not a right to be granted. A right, in our current situation, is a grant from the government. The government says we have the right to keep from self-incrimination at trial. Then, when we’re on the witness stand and a prosecutor asks us to bear witness against ourselves, we declare that right, and the government backs off. Defining a virtue as a right is a way of telling the government to keep its hands off.

Privacy is a state of mind, not a state of being. There are couples in New York City who feel they are sharing a private moment on a crowded street corner. There are people in the Appalachian mountains who feel their privacy is being invaded, even when they are all alone. Who is right? All of them, because privacy is a feeling. It’s the satisfaction we take from being alone. When we are dissatisfied with being alone, we feel lonely. When we are satisfied, we feel private.

The red herring of the privacy argument is incrimination. This argument basically believes that privacy is unnecessary if you have nothing to hide. It’s the easiest argument to make, and also the argument most ignorant of true human emotions. The worst part is when supposed privacy advocates buy into this. Take this counterproductive story in Valleywag, for instance. The author basically says that Facebook’s check-in feature is bad because you will get caught lying to your girlfriend or having an affair. Seriously. That’s the best Valleywag could come up with.

I dated a girl for a little over two years from high school into college. She broke up with me. She was my first serious girlfriend, and I was devastated. The night she broke up with me, I left my parents house in Columba, Md and drove three hours east to Ocean City, where my parents own a rental condo. The power and the plumbing were shut down for the off-season, but I just wanted to be alone. It was 1994, so nobody had cell phones. Escape was as easy as simply telling a few key friends not to call my parents house looking for me. I spent a night sitting on the balcony, staring at the ocean and writing very, very bad poetry that nobody will ever see. I was an English major, and they don’t sell clove cigarettes in Maryland, so bad poetry was all I had.

I just wanted some privacy. I wasn’t doing anything wrong. I didn’t want to be around anyone I knew. I couldn’t find happiness, I couldn’t avoid the depression. Privacy was an emotional state I was seeking, not a legal right that I was trying to protect.

I hate to use a traumatic example, because a desire for privacy doesn’t require trauma, or illicit behavior, or anything, really. It’s a desire to fulfill an emotional need state.

I don’t have a problem with Facebook’s Places check-ins because they are simply another form of sharing. If you want to share information about yourself, go right ahead. If I enjoy that sharing, I’ll follow. If not, I’ll unfriend you. When you start sharing information about other people, though, you have to be more careful. I learned this on Facebook very early when I posted some pictures from an all-night study session back in college. Quite a few friends were angry that I had posted such unflattering images without asking them, especially since I had tagged the pictures for all to see. Some of these people were professionals in respectable, semi-public positions. One is a Rabbi; another is an aspiring actor who has been in some Hollywood movies.

These people have a vested interested in controlling their image. It was disrespectful for me to step on their wishes and their feelings by posting these pictures. I was making decisions for them, telling them how they should present themselves. I was telling them how they should feel. There might be some growing pains in the Facebook Places feature, but in the end we’re not talking about strangers and enemies who are out to destroy you. We’re talking about friends. If we can’t respect our friends’ feelings, well, that’s why Facebook created the concept of unfriending.

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