Tuesday, August 7, 2012

Exploring the Concept of Privacy

With the hubbub in the media about the issue of privacy these days, many may wonder why exactly it is such a big deal. The following section will examine the social and historical determinants of the concept so that the reader may understand why privacy is so important and how it relates to the modern issue of electronic health records and mobile health.

“Instantaneous photographs and newspaper enterprise have invaded the scared precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the roof-tops’. For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons”  (Warren & Brandeis, 1890).

The author of this excerpt is not talking about social media when he mentions the “unauthorized circulation of portraits of private persons” because he wrote this in 1869 before computers and the internet existed. The mechanical devices which he refers to were some of the first commercially available cameras being used by journalistic reporters at the time. As such, we see that the issue of technology and privacy is not something that is new to our society. While it is true that the information landscape has changed a great deal since the late 19th century, many of the issues remain fundamentally the same today in the 21st century.

From a psychological perspective privacy is seen as a form of social control which enhances the autonomy of the individual (Margulis, 2003). It allows the individual to differentiate between what is the ‘self’, what is outside the ‘self’ – family, society, environment, etc. – and the relationship between the two. In this way, privacy is seen as an essential feature of the human experience in achieving healthy psychological functioning (Margulis, 2003). In studies of psychiatric settings, some of the consequences of a lack of privacy included: stress, diminishment of voluntary control, dehumanization and the inability to reintegrate and operate normally in society (Goffman, 1961) (Johnson, 1974) (Margulis, 2003).

From a societal perspective, privacy is important for three main reasons (Margulis, 2003): (i) there is a common interest among members of society to maintain privacy; (ii) privacy is essential to the proper functioning of democracy; and (iii) privacy is seen as a commodity because “technological and market forces make it increasingly difficult for any one person to have privacy unless everyone has a similar level of privacy” (Regan, 1995).

From a legal perspective, the concept of privacy is understood as being a product of the individualistic Western ideal ( Nagenborg, 2006) known as the “right-to-life” (Warren & Brandeis, 1890). The “right-to-life” consists of three fundamental components (Warren & Brandeis, 1890): (i) the individual’s right to be free from violence and other forms of bodily injury; (ii) the recognition of the individual as an active agent capable of making choices free from unwanted restraint – also known as freedom and liberty; and (iii) the individual’s right to own property – also known as the right to private property (Warren & Brandeis, 1890) (Greaves, 1975). The right to private property is the “dominion which one individual claims and exercises over the external things of the world, in exclusion of every other individual” (Greaves, 1975). Property that is worth owning is usually something valuable that improves the owner’s quality of life in some way. The right to own property set the foundation for the development of the more abstract Right to intellectual property and Right to privacy (Warren & Brandeis, 1890).

The right to privacy is closely related to the right to intellectual property in that they both protect intangible products belonging to an individual (Warren & Brandeis, 1890). Intangible property is different from tangible property in the sense that it does not have a physical presence and cannot be touched or grabbed in the same way a concrete object like a chair or baseball can be touched. But just because something does not have a concrete presence does not mean that it does not have value and cannot improve the quality of life of its owner. Intangible property are ideas and abstractions that are usually expressed by mean of words, painting, music and other forms of artistic production (Warren & Brandeis, 1890). The Right to Intellectual property grew out of the individual’s right to earn profits from the publication and dissemination of the ideas found in their literary and artistic productions (Warren & Brandeis, 1890). Its legislation served as a protection and encouragement of the conscious production of labor (Warren & Brandeis, 1890). The Right to intellectual property set the legislative foundation for the Right to privacy (Warren & Brandeis, 1890).

The right to privacy is different from the right to intellectual property in the sense that not only does it recognize the individual’s right to immaterial property – through the expression of ideas and information – it also recognizes the individual’s right to decide freely, without authoritarian interference, which of these intangible materials can be appropriately expressed in public and which ones cannot. In other words, The Right to Privacy is the individual’s freedom to choose what information about themselves they wish to divulge to others and which information about themselves they do not (Margulis, 2003). For example, the Fourth Amendment of the Constitution[1] protects individuals from unwanted police searches without the presence of a probable cause – an individual’s privacy may not be invaded unless a good enough reason has been determined through the issuance of a search warrant by a judge (McWhirter, 1994) (Margulis, 2003). This protects individuals from institutions which may not always have the citizen’s’ best interest in mind. It solidifies the concept of the individual as an independent entity capable of making decisions with his/her own best interests in mind free from the coercion of an outside authority.

The importance of individual privacy to psychology and society is recognized in the legal framework of Western Democratic nations today (Margulis, 2003). But due to the rapidly evolving modern technological landscape, the law is often several steps behind in ensuring that the individual’s right to privacy is well protected (Barrows & Clayton, 1996) (Tene, 2008). Furthermore, the definition of privacy and what type of information should or should not be disclosed, is constantly undergoing change according to evolving societal norms and it also varies greatly from individual to individual (Barrows & Clayton, 1996).

The emergence of inexpensive information storage technologies have allowed for the creation of vast databases containing an enormous amount of information about individuals (Tene, 2008).With this, has come the development of a swath of confidentiality and informed consent issues that remain unaddressed by our current legal framework (Tene, 2008). For example, Google, the internet search behemoth, collects information on all of its users’ internet activities – whether this is through its search engine, e-mail service or any of the many internet tools that it offers “free” of charge – and compiles the information in databases on its servers (Tene, 2008). With data mining techniques, Google claims it is able to enhance the internet experience of its users by creating personalized and targeted advertisement (Barrows & Clayton, 1996) (Tene, 2008). However, due to a lack of clear protective legislation of personal information in Canada and the U.S., “third parties such as financial institutions, insurance companies, online service providers, and government agencies, [may have access] to databases with massive amounts of personally identifiable information, including in certain cases information not known to the individuals themselves”  (Tene, 2008). Great psychological and financial harm can come to individuals if their personal information falls into the hands of the wrong people, especially information relating to personal health (Barrows & Clayton, 1996).

This is known as the problem of user informed consent and confidentiality. Informed consent dictates that the user of the service (Barrows & Clayton, 1996): (i) must be made aware of what information is being disclosed and the significance of this information; (ii) must be made aware to whom this information will be disclosed to; (iii) is capable of making lucid decisions; (iv) willingly gives consent without coercion. In the case of Google, or Facebook, these criteria are not met, since it is not clear what and to whom this information is being disclosed to (Barrows & Clayton, 1996). Furthermore, in a sense users are being coerced because the only way to refuse consent is to forgo using the service.  Confidentiality is the notion that a user’s personal information should only be used for the purposes of the service being provided and should never be disclosed to a third party without the user’s explicit consent (Harwood, 2006).


Nagenborg, M. (2006). The Dichotomy of the Private and the Public. Privacy and Surveillance Technology - Intercultural and Interdisciplinary Perspectives (pp. 1-10). Bielefeld: Centre for Interdisciplinary Research.
Barrows, R. C., & Clayton, P. D. (1996). Privacy, Confidentiality, and Electronic Medical Records. Journal of the American Medical Informatics Association, 139-148.
Goffman, E. (1961). Asylums. Garden City, NY: Anchor.
Greaves, B. B. (1975). Free Market Economics: A Reader. New York City: Irvington on Hudson.
Harwood, I. A. (2006). Confidentiality Constraints within Mergers and Acquisitions: Gaining Insights through a ‘bubble’ Metaphor. British Journal of Management, 347-359.
Johnson, C. A. (1974). Privacy as personal control. In D. H. Carson, & S. T. Marguilis, Man-environment interactions: Evaluations and applications: Part 2, Vol 6. Privacy (pp. 88-100). Washington, DC: Environmental Design Research Association.
Margulis, S. T. (2003). Privacy as a Social Issue and Behavioural Concept. Journal of Social Issues, 243-261.
McWhirter, D. A. (1994). Search, Seizure, and Privacy. Pheonix: Oryx Press.
Regan, P. M. (1995). Legislating Privacy: Technology, social values, and public policy. Chapel Hill, NC: University of North Carolina Press.
Tene, O. (2008). What Google Knows: Privacy and Internet Search Engines. Selected Works of Omer Tene (in press), 1-61.
Warren, S. D., & Brandeis, L. D. (1890, Dec 15). The Right to Privacy. Harvard Law Review, 4(5), 193-220.

[1] The American Constitution, ratified in 1787, had an enormous influence in shaping the legislation of Democratic countries around the world, including Canada.

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