8/14/2019 Review of In Pursuit of Privacy: Law, Ethics, and the Rise of Technology by Judith Wagner DeCew

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Review: [untitled]Author(s): William ParentReviewed work(s):

In Pursuit of Privacy: Law, Ethics, and the Rise of Technology by Judith Wagner DeCewSource: Ethics, Vol. 109, No. 2 (Jan., 1999), pp. 437-439Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2989486Accessed: 22/09/2008 01:33

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8/14/2019 Review of In Pursuit of Privacy: Law, Ethics, and the Rise of Technology by Judith Wagner DeCew

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Book Reviews 437are good. Space constraints being what they are, I can only apologize for notdiscussing them.The whole volume is well worth reading and rereading by anyone interestedin practical reason and its relation to morality.

DAVID SCHMIDTZUniversity fArizona

DeCew,Judith Wagner. In Pursuit of Privacy: Law, Ethics, and the Rise of Technology.Ithaca, N.Y: Cornell University Press, 1997. Pp. 199. $15.95 (paper).The philosophical literature on privacy is dominated by two different concep-tions of its meaning. On the one hand, there are narrow definitions which con-ceive of privacy exclusively in terms of information, though advocates of infor-mational privacy differ among themselves concerning the kind of information atstake and the importance assignable to the issue of personal control over it.Broader definitions of privacy, on the other hand, usually incorporate some ver-sion of the information conception but extend its meaning to embrace personaldecision making of various kinds. American law reflects this conceptual division:tort jurisprudence and Fourth Amendment cases affirm the values of informa-tional privacy while recent U.S. Supreme Court decisions on contraception, abor-tion, and the right to die discuss privacy as a matter of making certain kinds ofdecisions free from government intrusion.

Judith Wagner DeCew's book attempts an ambitious defense of a broad con-ception of privacy. This is one of the book's virtues. Too often philosophers andlawyers simply assume that 'privacy' connotes much more than matters of infor-mation acquisition and dissemination. DeCew's defense, which takes up chapters3 and 4, follows her criticism of my narrow definition in chapter 2. Because thesecriticisms clearly reveal her deepest intuitions about the subject, I will spendsome time now responding to them. I proposed that we understand 'privacy' tomean the condition of not having undocumented personal information aboutoneself known to others. By 'documented information' I mean information thatbelongs to the public record and is thus publicly available. Personal informationcan belong to one of two categories: it can involve matters that people in a givenculture choose not to reveal about themselves (except perhaps to close friendsand relatives) or it can involve matters that particular individuals feel unusuallysensitive about and therefore choose not to disclose about themselves.

DeCew raises several objections to this characterization of privacy. (1) It isdifficult to deny that a widely distributed reprint of previously published infor-mation about an individual A in obscure documents would be a further invasionof A's privacy. (2) Again supposing that information about A belongs to the pub-lic record, then by my account even the most insidious snooping to obtain itwould not invade A's privacy, yet most of us would find that this would diminishour privacy, even if done by someone unaware that the facts in question werealready documented. (3) Assuming that B trains a telescope on A but discoversnothing that isn't already documented, we would nonetheless properly accuse B

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438 Ethics January 1999of invading A's privacy. (4) That no undocumented personal knowledge about Ais obtained by B's constant pressing of questions on A does not remove the privacyinvasion. (5) My descriptive emphasis on what is a part of the public record leavesno room for a normative sense of privacy encompassing interests worthy of pro-tection (pp. 31-34).My responses to these objections can be simply summarized. Regarding (1),DeCew seems to assume that the more information the public knows about anindividual the greater the loss of privacy she suffers. But suppose that A walks inthe nude around his block and is spotted by one of his neighbors who photo-graphs him and publishes the picture in the local paper. Now many more peopleknow more about A than they did before but we should not condemn the pub-lication on privacy grounds given the decidedly public nature of the photo-graphed behavior. To the extent that we criticize the snooping in (2) it is becauseof our belief either that the actions would indeed uncover undocumented per-sonal facts about A or that they constitute unwarranted harassment and trespassagainst A. B's actions in (3) certainly intrude upon A's seclusion and solitude.Moreover it is difficult to gainsay that B probably would discover undocumentedpersonal information about A by his persistent eavesdropping. In (4) B's actionsare most accurately condemned not in the language of privacybut as invasions ofA'spersonal security and peace of mind. Finally,the question raised in (5) of whatis and is not legitimate for the public to know, while important, belongs to acomplete normative theory of privacyof the kind I never intended to offer.DeCew's defense of a broader conception of privacyrelies fundamentally onthe intuition that there is a sphere of human conduct that is nobody else's busi-ness except that of the actors themselves. So 'the private' designates, roughly,whatever is not the legitimate concern of others. Because this characterizationdoes not allow for justifiable invasions of privacy DeCew amends it to designatewhatever is generally not the legitimate concern of others. And by wayof furtherclarification, DeCew adds: "Wecan saythat an interest in privacyis at stake whenintrusion by others is not legitimate becausetjeopardizes or prohibits protectionof a realm free from scrutiny, udgment, and the pressure, distress, or losses theycan cause" (p. 64).DeCew finds much to admire in Ferdinand Schoeman's similarly expansiveanalysisof privacyin his Privacyand SocialFreedom. or both philosophers, privacyprotects us from inappropriate expressions of social coercion that can precludepersonal self-expression and the free association with others. It also shields usfrom intrusions and pressures arising from others' access to our persons andto details about us. Not surprisingly, then, DeCew adopts Schoeman's threefoldclassification of privacy: nformational privacy,or control over information aboutoneself; accessibility privacy, including physical access and physical proximity;and expressive privacy, which safeguards a domain for expressing one's self-identity (pp. 73-78).There are serious difficulties with DeCew's account. The key expression 'notthe legitimate concern of others' is significantly ambiguous. It can mean 'whatothers have no legitimate business knowing about' or it can mean 'what othershave no legitimate business stopping a person from doing'. The former meaning,when suitably qualified, captures a bona fide privacy issue. The latter meaning,however, makes it clear that the value really at stake is personal liberty. Further-more, DeCew's definition of informational privacy paradoxically implies that

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Book Reviews 439control over publicly available facts is a legitimate aspect of privacy. It also mis-leadingly implies that if A lacks control over information about herself, she can-not have any privacy.This is misleading because the persons with such controlsimply may not obtain or disseminate any undocumented personal facts about A.Finally,the idea of accessibility privacy counterintuitively means that physical ac-cess to A even in public places diminishes her privacy.Fortunately the last five chapters of In Pursuit of Privacy do present moreconvincing arguments. In chapter 5, for example, DeCew persuasively rebutsthe feminist critique of privacy as yet another device for perpetuating misogy-nous violence in the home. In chapter 6 she argues thatJohn Hart Ely's famousand influential criticism of the Supreme Court abortion case Roev. Wade,neednot lead to the conclusion that privacy is irrelevant to the proper legal resolu-tion of this issue. And in chapter 7 DeCew attacks the Supreme Court's rulingthat the Constitution does not protect gays who engage in consensual sodomy(though her attack is compromised conceptually by relying on the broad notionof privacy).Chapter 9 deals with drug testing and privacy.Here DeCew defends the rea-sonable position that while drug abuse mustn't be tolerated in the workplace oranywhere else where it threatens the safety of persons, great care must be takento ensure that testing programs do not gratuitously intrude on the privacy ofthose subjected to them. She also correctly emphasizes that there are legitimateconcerns about the accuracy of these tests as well as serious questions concerningtheir efficacy in achieving the laudable goals of improving employees' safetyandjob performance. In chapter 10 DeCew usefully discusses the moral and legalchallenges to privacy arising from database information storage and new tele-phone computer services like caller identification. Her objective is to supportways of managing these technologies so that we can enjoy their benefits withoutsuffering unnecessary losses of privacy.But she misconstrues the essential threatto privacy as a loss of control over sensitive information, while it should beidentified with how much, if any, of this information is actually acquired anddisseminated.To sum up, In Pursuit of Privacy makes a significant contribution to the on-going philosophical debate on the nature and value of privacy. In particular,DeCew's attempt to furnish a systematic justification of a broad conception ofprivacy is worth careful study and her analyses of present-day dangers to privacydeserve every citizen's thoughtful attention.

WILLIAM PARENTSanta ClaraUniversity

Engstrom, Stephen, and Whiting, Jennifer, eds. Aristotle, Kant, and the Stoics:Rethinking Happiness and Duty.New York: Cambridge University Press, 1996. Pp. ix+ 310. $54.95 (cloth); $18.95(paper).As the editors of this volume point out in their lucid introduction, recent workin both the Aristotelian and Kantian traditions suggests that the gulf between