THE “RIGHT TO BE LET ALONE” AND PRIVATE
INFORMATION
Sabah S. Al-Fedaghi
Computer Engineering Department, Kuwait University, Kuwait
Keywords: Privacy, right to be l
et alone, information, law
Abstract: The definition of privacy given by Warren and Brandeis as the “right to be let alone” is described as the
most comprehensive of rights and the right most valued by civilized men. Nevertheless, the formulation of
privacy as the right to be let alone has been criticized as “broad” and “vague” conception of privacy. In this
paper we show that the concept of “right to let alone” is an extraordinary, multifaceted notion that coalesces
practical and idealistic features of privacy. It embeds three types of privacy depending on their associated:
active, passive and active/passive activities. Active privacy is “freedom-to” claim where the individual is an
active agent when dealing with private affairs claiming he/she has the right to control the “extendibility of
others’ involvement” in these affairs without interference. This is a right/contractual-based notion of
privacy. Accordingly, Justice Rehnquist declaration of no privacy interest in a political rally refers to active
privacy. Passive privacy is “freedom-from” notion where the individual is a passive agent when dealing
with his/her private affairs and he/she has privacy not due control –as in active privacy– but through others
being letting him/her alone. This privacy has duty/moral implications. In this sense Warren and Brandeis
advocated that even truthful reporting leads to “a lowering of social standards and morality.” Active/passive
privacy is when the individual is the actor and the one acted on. These three-netted interpretations of the
“right to be alone” encompass most –if not all- definitions of privacy and give the concept narrowness and
precision.
1 INTRODUCTION
The notion of privacy is becoming an important
feature
in all aspects of life of modern society.
“[P]rivacy will be to the information economy of the
next century what consumer protection and
environmental concerns have been to the industrial
society of the 20th century” (Gleick, 1996). New
technologies worldwide have affected different
aspects of dealing with private information in the
areas of security, commerce, government, etc. The
situation is described as “clash between privacy and
technology” (DeCew, 2002).
Several types of privacy have been distinguished
in
the literature including physical privacy and
informational privacy (Floridi, 1998). Recent results
have located ‘private information’ in true linguistic
assertions about an identifiable individual. An
ontological definition of private information can
be developed from linguistic assertions in order
to identify the basic units of private information.
This definition will be briefly summarized next. The
linguistic forms of information or linguistic
assertions provide us with the basic privacy
components. Simply, assertions about individuals
are private assertions. Consequently, linguistic
assertions are categorized according to the number
of their referents as follows:
(i) Zero assertion: An assertion that has no
refe
rent signifying a single individual.
(ii) Atomic assertion: An assertion that has a
si
ngle referent signifying a single individual.
(iii) Compound assertion: An
assertion that has
several referents signifying individuals.
In (i) and (ii), the referent refers to an individual
(
person), but not to a specific individual. He is shy,
Someone is in love are examples of atomic assertions
because each has one (human) referent. They
become private when “he” and “someone” are
mapped to identifiable individual. On the other, hand
Spare part ax123 is in store 5, is a zero assertion
because it does not involve any individual (human).
They are in love is a compound assertion because it
has two referents.
Linguistic assertions that are limited in their
pos
sible extension to human beings become
98
S. Al-Fedaghi S. (2005).
THE “RIGHT TO BE LET ALONE” AND PRIVATE INFORMATION.
In Proceedings of the Seventh International Conference on Enterprise Information Systems, pages 98-107
DOI: 10.5220/0002515700980107
Copyright
c
SciTePress
‘private’ assertions when they are ‘coupled’ to
specific individuals through the mechanism of
identification. For example, The Swedish Data Act
“regards every single storage of any piece of
information about a person as a personal information
base” (Palme, 1998). If an assertion is true, then it is
said to be information, otherwise it is said to be
misinformation. Consequently, there are zero
information, atomic information, and compound
information according to the number of referents.
Atomic information becomes private if it refers to an
identifiable individual. Similarly, compound
information becomes private if it refers to
identifiable individuals.
We identify the relationship between individuals
and their own atomic private information through
the notion of proprietorship. Proprietorship of
private information is different from the concepts of
possession, ownership, and copyrighting. Any
atomic private information of an individual is
proprietary private information of its proprietor. A
proprietor of private information may or may not be
its possessor and vice versa. Compound private
information is proprietary information of its
referents: all donors of pieces of atomic private
information that are embedded in the compound
private information. Atomic private information of
an individual can be embedded in compound private
information: a combination of pieces of atomic
private information of several individuals. The
compound assertion is produced through compound
activities or situations where individuals ‘discover’
each other. Two or more individuals have the same
piece of compound private information because it
embeds atomic private information from these
individuals. But it is not possible that they have
identical atomic private information because simply
they have different identities. Atomic private
information is the “source” of privacy. Compound
private information is “private” because it embeds
atomic private information. Also, the concept of
proprietorship is applied to compound private
information, which represents “sharing of
proprietorship” but not necessarily shared possession
or ‘knowing’. Some or all proprietors of compound
private information may not “know” it.
Compound private information is privacy-
reducible to a set of atomic assertions but it has
more than that. It is a “bind” that does not only
contain atomic assertions but also asserts something
about its own assertions. Privacy-reducibility of
compound information to atomic information means
that “no known atomic information” of an individual
implies “no known compound information” of that
individual. Because if the compound information is
known then its atomic assertions are known.
Reducing a compound assertion to a set of atomic
assertions refers to isolating the privacy aspects of
the compound assertion. This means that, if we
remove the atomic assertion concerning a certain
individual, from the compound assertion then the
remaining part will not be a privacy-related assertion
with respect to the individual involved.
Suppose we have the compound private
information, John saw Mary’s uncle, Jim. The
privacy-reducibility process produces the following
three atomic private assertions:
Assertion-1: John saw someone’s uncle.
Assertion-2: Mary has an uncle.
Assertion-3: Jim is an uncle of someone.
Additionally, we can introduce the zero-
information meta-assertion: Assetion-1, assertion-2,
and assertion-3 are assertions of one compound
private information, from which it is possible to
reconstruct the original compound assertion. The
methodology of syntactical construction is not of
central concern here.
We have defined every piece of information that
includes an identifiable person as private
information. The private information can be
sensitive, confidential, ordinary, trivial, etc. but all
of these types are encompassed by the given
definition: they refer to identifiable individuals. It
seems that privacy “should come, in law as in life,
too much less ... [than] all information about
oneself” (Gerety, 1977). Here we can introduce the
notion of ‘sensitive’ private information. However,
while identifiably is a strict measure of what is
private information, ‘sensitivity’ is a notion that is
hard to pin down. It is “context dependent and thus
global measures of sensitivity cannot be adopted”
(Fule and Roddick, 2004). In this work we defer
different levels of sentivity of private information to
further study.
Three categories can be applied to any type of
activities and situations. For private information, we
apply them to the act of processing private
information. Suppose that we define each individual
as a private information agent capable of processing
his/her own private information. The individuals can
process (e.g., control uses of) his/her private
information in dealing with others (active role); can
process his/her private information autonomously
(passive-active role); or can be the source of private
information processed by others (passive role).
Accordingly, we categorize proprietary private
information into two basic categories:
Known: This is the set of atomic private
information that is known by others (in possession
of others). In this category the individual can be an
active processor of his/her information through, for
example, releasing it to some but not others, selling
it, controlling its uses, etc. Alternatively, the
individual can be a passive agent where others
THE “RIGHT TO BE LET ALONE” AND PRIVATE INFORMATION
99
process his/her private information without his/her
involvement.
Not Known: This is the set of atomic private
information that is only known by the proprietor and
no one else. Here the individual can be an
active/passive agent processing autonomously
his/her own private information. Privacy intrusion
can occur in this domain by such techniques as brain
washing, forced propaganda, subliminal
advertisements, etc.
Next section introduces our new contribution in
this paper. We review the notion of “right to be let
alone” in preparation for generalizing private
information to private affairs. We will use the
resultant divisions of passive, active, and
active/passive activities to develop three
interpretations of the right to be let alone.
2 THE RIGHT TO BE LET ALONE
Samuel Warren and Louis Brandeis 1890 famous
article (Warren and Brandeis, 1890) is described as
“the most influential law review article ever
published" (Etzioni, 1999). “[I]t spawned at least
four common law tort actions to protect privacy; and
it framed the discussion of privacy in the United
States throughout the twentieth century” (Solove,
2002). Warren and Brandeis described the notion of
privacy as the right to be let alone. On the authority
of Justice Louis Brandeis “the right to be let alone is
the most comprehensive of rights and the right most
valued by civilized men” (Brandeis, 1928).
Originally, describing privacy as the right to be
let alone came out of concern mainly with
expanding communication and new media
technologies in the United States in 19th century
(e.g., instant photographs and the widely distributed
tabloid press). Those technologies were invading
"private and domestic life" through publishing idle
gossip in sensational news (Ruiz, 1997).
Accordingly, it is claimed that the aim of privacy
laws should be to protect “the privacy of private
life” from unwanted publication of information
about the private lives of individuals. According to
Warren and Brandeis “... modern enterprise and
invention have, through invasions upon his [man]
privacy, subjected him to mental pain and distress,
far greater than could be inflicted by mere bodily
injury” (Warren and Brandeis, 1890). Warren and
Brandeis noted that tort law did not typically protect
privacy-based harm. While the law of defamation
protected injuries to reputations, privacy-based harm
is “injury to the feelings” “that was difficult to
translate into the tort law of their times, which
focused more on tangible injuries” (Solove, 2002).
The formulation of privacy as the right to be let
alone has been criticized for failing in providing a
balanced view concerning other important notions,
such as free speech, effective law enforcement
(Solove, 2002). It is described as ‘too broad’ and
“never define what privacy is” (Schoeman, 1984).
“While the right to be let alone has often been
invoked by judges and commentators, it still remains
a rather broad and vague conception of privacy”
(Solove, 2002).
3 “TO BE LET ALONE” AS
INFORMATIONAL PRIVACY
In order to include all private affairs implied by the
notion of “to be let alone” we propose three spheres
of privacy as shown in figure 1.
My Privacy
Active Passive Active/Passive
Figure 1: Categories of privacy-related activities of
any individual.
The categories represent all privacy-related activities
of the individual. We will concern here with “self”
private affairs of the individual represented in My
Privacy. “Self” here refers to proprietary private
activities as in the informational context where
atomic private information is proprietary
information of the individual. Next we will explain
this notion of “self” privacy-related activities in
terms of “self” private information.
4 ANATOMY OF PRIVATE
INFORMATION
Let p(V) be an atomic private assertion about the
individual V. A private assertion ‘about’ V is an
assertion whose subject (agent) is V or his/her
‘things’. For example, the subject of the assertion
John’s horse is brown is not John himself but his
horse; however, the subject of John’s blood type is
A, is John himself. This later type of assertions
informs about the individuals themselves not about
things in this world that are associated with them.
The atomic private information John’s horse is
brown is ‘infected’ by zero-information. Atomic
ICEIS 2005 - INFORMATION SYSTEMS ANALYSIS AND SPECIFICATION
100
private information is said to be self-atomic private
information (self-information) if its subject is its
proprietor and only its proprietor. For example,
John’s house is burning expresses two pieces of
information: (a) John has a house, and (b) The house
is burning. Assertion (a) is self-information because
its subject is its proprietor. The assertion (b) is zero-
information because its subject is not a person but a
house. The term ‘subject’ here means the ‘thing’
about which the information is communicated.
Also, if the police inquired about my dog’s
certificate or examined the soil of my land then these
are ‘personally owned information’ not self private
information about me. The only privacy-related
information in these cases is that I own the dog or
the land. However, if the inquiries are about my
identity (e.g., the police asks to produce
identification as an owner of the dog, alcohol level
in my blood, my beliefs, etc.) then this information
is in my self-private domain. So when we use terms
such as ‘private affairs’ we mean “self affairs” that
are proprietary of the individual not ‘personally
owned affairs’ such as pieces of information (or
affairs) about a company or a job, etc. that are in
possession of or related to the individual.
Furthermore, we concern ourselves here with
information/affairs in My Privacy that includes the
individual’s private information/affairs and not
private information/affairs of others that are in
his/her possession. This My Privacy can be divided
according to the kinds of “freedom” available to the
individual as follows:
Active Privacy: This is the type of privacy
where the individual is an active agent when dealing
with his/her private affairs claiming he/she has the
right to control the “extendibility of others’
involvement” in these affairs without interference.
So “right to be let alone” means freedom “to”
control private affairs that involve others. The
difficulties here stem from conflict between the
individual and others over who controls what private
information about the individual and the extent of
this control.
Passive Privacy: This is the type of privacy
where the individual is a passive agent when dealing
with his/her private affairs and he/she has privacy
that is not due his control –as in active privacy– but
through others being letting him/her alone. So “right
to be let alone” means freedom “from” being
subjected to others’ activities with regard to private
affairs. The difficulties here stem from the intrusion
by others on what the individual consider his/her
privacy arena.
Active/Passive Privacy: This is the type of
privacy where the individual is simultaneously
active and passive agent when dealing with his/her
private affairs. So “right to let alone” means freedom
“in” doing whatever he/she wants with his/herself
private affairs that do not involve others. The
difficulties here stem from others preventing the
individual from acting on his/herself. Consider the
following examples:
(a) The individual has an active role: presenting
oneself in “false light”, giving his/her private
information, filing an application for government
benefits, flashing.
(b) The individual has a passive role: unsolicited
mail and unwanted phone calls, commercial
exploitation of his/her private information, filing a
compulsory government form, compulsory stripping
and exposure.
(c) The individual has active/passive role:
tattooing oneself, burning own dairy, masturbation,
suicide.
5 ACTIVE PRIVACY: “TO BE LET
ALONE” AS “FREEDOM TO”
‘To be let alone’ can be interpreted as a type of
freedom qualified, usually, with “to”. It is freedom
“to associate”, “to distribute”, “to express”, “to
possess”, “to receive information and ideas”, “to
educate (children)”, “to reveal beliefs, thoughts,
possessions”, “to communicate with others”, etc.
The “material“ of this activity is one’s own private
affairs such as his/her own private information; the
practice of the activities is “expending” private
affairs in the social exchange with others; and the
target of the activities is to maximize social-life
benefits with minimum expenditure of privacy. This
active freedom -whenever used with the term
“from”- reflects restricting individual’s activity as in
freedom “from interference”, “from unwarranted
governmental intrusion”, “from obstacles”, etc.
Privacy here means “the ability to control” private
affairs hence it is termed in the informational
context as “control” over information. It also means
“freedom of choice” in how to expend private
affairs.
With respect to private information active
freedom is manifested in:
(a) The individual transfers his/her private
information from Not Known to Known.
(b) The individual controls the distribution of
private information in possession of subsets of
others in Known.
This type of privacy entangles directly with the
troublesome concept of the limitation of ‘personal
freedom’. In its absolute sense, ‘I have the right to
be let alone’ means ‘I have the right that: (a) others
do not pay attention to my private affairs whatever
these private affairs are, and (b) I control the limits
THE “RIGHT TO BE LET ALONE” AND PRIVATE INFORMATION
101
of others’ attention. This meaning of control does
not refer to “control over when and by whom the
various parts of us can be sensed by others” (Parker,
1974) but to control what we ourselves put it under
different levels of spotlight for others. In ordinary
situations “various parts” of us that are sensed by
others do not attract attention, but attention arises
when we become active in some ‘unordinary’ way.
On the other hand passivity in passive privacy does
not embed any control notion.
5.1 “Natural” State of Privacy
There are reservations concerning the type of affairs
and the control of limits in active privacy. First, the
freedom in active privacy is at odd with the ‘natural’
state of privacy. The default case of privacy is that
others ‘pay attention and simultaneously do not pay
attention’ to people. Here privacy and non-privacy
are inseparably intertwined since active freedom by
its nature ‘attracts attention’. Attracting attention has
many obvious facets and also non-obvious aspects.
There is a minimum and ‘usual’ levels of attention
arise from living in any community. Then come such
aspects as becoming “quasi-public figures" or
“participants, even though unwilling, in a
newsworthy event”, “a subject in public
documentation (e.g., official court records)”, etc.
that attract attention by their very nature. Many legal
cases have been understood according to this factor.
For example, a case against publishing a photograph
of a couple embracing in public is dismissed on the
grounds that by embracing in public, the couple had
voluntarily consented to be viewed by others
(Prosser, 1984). According to Charles Fried,
“Privacy is not simply an absence of information
about us in the minds of others; rather it is the
control we have over information about ourselves”
(Fried, 1970).
Hence active privacy/freedom where an
individual tries “to control” the consequences of
attention would results in more attention. For
example in what is called “privacy-based harm”, the
more the victim express dissatisfaction or
resentment for his/her injury the more he/she is
victimized. On the other hand there are activities (of
passive privacy) that are clearly ‘non-attracting
attention’ activities such as “using contraceptives in
the privacy of marriage”, “making phone
conversation”, etc. In these activities the individual
is a passive agent who aims at freedom “from”
intrusion in his/her privacy.
5.2 Active Freedom
Active freedom associated with active privacy refers
to being an active entity in the social “private affairs
fair” and exercising control over others’ dealings
with own private affairs. Privacy in this case is "the
right to exercise some measure of control over
information about oneself" (Westin, 1967). “Control
over information” means that “individuals have the
right to decide "when, how, and to what extent
information about them is communicated to others"
(Westin, 1967). In this case privacy is the “right to
decide how much knowledge of [a person’s]
personal thought and feeling . . . private doings and
affairs . . . the public at large shall have” (Godkin,
1980). Clearly our analysis generalizes this notion
to the “right to control over others attention about
one’s private activity.” This type of privacy is the
so-called ‘limiting access to the Self’ conception of
privacy, which embraces the demand for “freedom
from government interference as well as from
intrusions by the press and others” (Solove, 2002)
without “constraining” private activities of the
individual. Freedom here means exercising activities
and controlling attentions about these activities. As
we mentioned previously this activity is, by itself,
naturally information-producing and attention-
attractive activity. One feels “free” when he/she
does ‘naturally attention-attracting activity’ and be -
at the same time- in charge of the amount and type
of the attention of others. He/she desires to be in
control of how others pay notice to him/her. The
meaning of freedom is ‘controlling others’ as much
as controlling own activity.
Privacy based on active privacy is the type of
privacy that seems to conceal domination over
others. “Right” in this context has its base in
Thomas Hobbes’ right of nature. This type of
privacy makes people players in the control game,
free in selecting plays that they desire. Each person
can cling to or display some or all of his/her private
affairs. “It's a game for people who choose a form of
existence impossible in the old world, maybe
hermits at that, hiding in digitally equipped homes,
visiting by telecam” (Gleick, 1996). This active
freedom is ‘social’ freedom that involves using
various types of measures of shielding (e.g.,
isolation, solitude, hiding, concealment, etc.) and
various forms of exposing (straight publicity,
leaking information, ... flashing). “Privacy” here
may mean freedom to expose “everything” and
controlling what part should be publicized. A flasher
may object to announcing his/her name, a witness of
a murder may volunteer for a newspaper interview
but may object to publish anything about him/her in
a crime magazine. This right to be let alone does not
ICEIS 2005 - INFORMATION SYSTEMS ANALYSIS AND SPECIFICATION
102
only view privacy as “a type of ... seclusion” but
also a type of exposure. It does not only involve
feeling of insecurity, fear from risk or danger, safety,
anxiety, etc. but also involves feeling of showiness,
extravaganza, impressiveness, etc. that reflects
ironically over-security. It is an ‘aggressive privacy’
where people want “a right to remain anonymous,
hiding their own numbers when placing telephone
calls” and on the Internet, they “insist on a right to
hide behind false names while engaging in verbal
harassment or slander” (Gleick, 1996). And may
boldly exhibit themselves and object if others misuse
this exhibition.
However a certain minimum level of this active
privacy is necessary and may be naturally essential
for any human being to live in a society. According
to Frank Askin “the right to control information
about oneself is an essential ingredient of a secure
personality" (Smith, 2000). The society usually sets
some limits on the minimal privacy and maximal
publicity. For example, regulations that prevent
flashing are measures to limit individual’s active
privacy. The control-game of privacy involves not
only individual, but also society and others as
control-players (Allen-Castellitto, 1999).
5.3 Active Privacy and Freedom
It is said that privacy is important in its aim of
providing the environment of freedom to act. Thus,
protecting privacy is a prerequisite for the exercise
of freedom (Ruiz, 1997). This freedom is related to
“the area within which the subject is or should be
left to do or be what he is able to do or be without
interference by other persons [or the State]” (Berlin,
1969). The active privacy is an interpretation of “to
be let alone” that coincides with one meaning of the
notion of “liberty” which includes the condition of
being able to act in any desired way without
restraint; and power to do as one likes. Liberty
implies the right and ability to control our own lives
in terms of work, religion, beliefs, etc. It is claimed
that the (constitutional) right to privacy more aptly
described as a right to liberty (Thomson, 1975).
We see that in active privacy, the notion of
‘intrusion’ on privacy means conflict between the
individual and others (e.g., government) on the
limits of the freedom of action in private affairs. In
the context of informational privacy this conflict is
materialized in terms of:
(a) Forcing the individual to disclose private
information in Not Known.
(b) Limiting the individual control of transferring
his/her private information from one set of others in
Known to another.
It is claimed that “[t]he theory’s [privacy as
control over personal information] focus on
information, ... , makes it too narrow a conception,
for it excludes those aspects of privacy that are not
informational, such as the right to make certain
fundamental decisions about one’s body,
reproduction, or rearing of one’s children” (Solove,
2002). Our approach positions this notion of control-
over-information as one aspect of “activity-based”
privacy. Additionally, active privacy is but one facet
of the conceptualization of the right to be let alone.
6 PASSIVE PRIVACY AS
“FREEDOM FROM”
‘To be let alone’ can be interpreted as not being an
object (subjected by others), which mandates duties
on others not to make the individual an object (of
their activities). Notice that Brandeis and Warren
used the term “subjected” in referring to the
individual when his/her privacy is invaded (Warren
and Brandeis, 1890). This second notion of ‘to be let
alone’ can be written as “the right of not-being an
object’ or it is the duty of any ‘other’ to control
his/her/its activities that subject an individual to
intrusion on privacy. This right to privacy is
“founded upon the claim that a man has the right to
pass through this world, if he wills, without having
his picture published, his business enterprises
discussed, his successful experiments written up for
the benefit of others, or his eccentricities commented
upon either in handbills, circulars, catalogues,
periodicals, or newspapers; and, necessarily, that the
things which may not be written and published of
him must not be spoken of him by his neighbors,
whether the comment be favorable or otherwise. The
theory that everyone has a right to privacy and that
the same is a personal right growing out of the
inviolability of the person. The right to one's person
may be said to be a right of complete immunity, to
be let alone” (See Ballentine Law Dictionary, 1969).
In the context of informational privacy, passive
freedom means that the individual is not subjected to
the following:
(a) Someone transfers the individual’s private
information from Not Known to Known.
(b) Someone transfers the individual’s private
information from one subset in Known to another.
The distinction between active and passive forms
of privacy has been recognized to a certain extent in
the literature. According to Nockleby “This capacity
to control information is a power; if you possess the
power to control information about yourself we can
call it a “right” of privacy. If someone else
possesses the power to control information about
THE “RIGHT TO BE LET ALONE” AND PRIVATE INFORMATION
103
you, we can say that person has the power of
control” (Nockleby, 2002). In our approach these
types of privacy are variations of privacy as the right
to be alone. We can notice that active privacy is a
‘right-base’ privacy while passive privacy is a ‘duty-
based’ privacy. In the classical rights theory,
positive rights are rights to “caring actions” from
other people while negative rights, by contrast, are
rights of non-interference. Negative rights are
classified as (a) Active rights (or liberty rights)
which are rights to do as one chooses (b) Passive
rights which involve the right to let alone. We claim
that the “to-be-let-alone” apparatus encompasses
what is called negative rights. Also, passive privacy
appears in different fashions. According to O’Brien
(O’Brien, 1979) privacy “may be understood as
fundamentally denoting an existential condition of
limited access to an individual’s life experiences and
engagements.” This statement has passivity
ingredient. Similar feature of passivity appears when
Justice Douglas wrote in 1967, “Those who wrote
the Bill of Rights believed that every individual
needs both to communicate with others and to keep
his affairs to himself. That dual aspect of privacy
means that the individual should have the freedom to
select for himself the time and circumstances when
he will share his secrets" (Smith, 2000).
It can be noted that many dictionaries mention
two senses of privacy: a type of freedom (from
intrusion) and a quality of a state (e.g., seclusion).
Our active and passive features of privacy offer
clearer classification of the notion. Freedom also has
two senses: active (unrestricted activity) and passive
(the absence of outside pressure or constraint).
It is interesting here to explore the notion of
“passive freedom” further. “Privacy is not identical
with control over access to oneself, because not all
privacy is chosen. Some privacy is accidental,
compulsory, or even involuntary” (O’Brien, 1979).
This passive freedom is usually qualified with the
term “from” such as freedom “from intrusion”,
“from unwarranted publicity”, “from using one's
name or likeness”, “from unnecessary attacks on
reputation”, etc. Sometimes it is stated in terms of
“free of” as in the right to be free of door-to-door
solicitors. Passivity here denotes being in a state in
which the individual does not have immediate
control over the resultant freedom as this freedom
depends on how others respect their duties. When
“to” is used with this passive freedom it refers to
“others” doing some activities that affect the privacy
of the individual. For example, others attempt “to
control the moral content of a person's thought”, “to
search or seizure private...”, etc. Clearly, in these
situation the individual is a passive agent. Also “to”
may be used in conjunction with a very general
sense of freedom that includes active and passive
freedom; for example, freedom “to enjoy a private
life” means freedom “from” bodily restraint, and
freedom “to” engage in any of the common
occupations of life, etc.
The interpretation of the “right to be let alone” as
“freedom from” or passive privacy means “the right
to not-being an object to (others’) activities’. Hence,
“to be let alone” is sometimes rephrased as to be
“left” alone where ‘left’ means untouched or hands
off. This sense of freedom is in line with the Kantian
notion of human beings as ends in themselves and
the need to define and pursue one's own values free
from the impingement of others. Also, Justice Louis
Brandeis in his much quoted statement “[T]he right
to be let alone is the most comprehensive of rights
and the right most valued by civilized men” may
refer largely to this type of freedom. This freedom
has also a touch of the existentialist’s view of man
as "a free being" that must be left alone to realize
his/her true nature. Passive freedom has no control
element; just one wants others not paying attention
since he/she does not do any activities that attract
attention. Passivity here refers to no extra-activity
besides normal activities. This freedom means to be
‘free to enjoy good life’ while ‘melting in the crowd’
and having immunity from the focused attention of
others including the State. The assumption here is
that if one doesn’t attract the attention of others then
others will not subject him/her to their activities.
There is no sense in “relinquishing privacy” in this
case because “relinquishing” contradicts passivity.
This type of freedom can be classified under what is
called “inalienable rights” that cannot be
surrendered. Brandeis and Warren used ‘natural law’
as a base for the right to privacy in this sense. It is a
special type of the general Freedom advocated by
many great men as the right that “consists in a
Freedom from any superior Power on Earth, and not
being under the Will or legislative Authority of Man,
and having only the Law of Nature (or in other
Words, of its MAKER) for his Rule” (Williams,
1744).
This passive freedom in private affairs is the one
described as valuable to maintain intimacy. Love,
friendship and trust are possible not in the
controlling mode of one’s affairs (free in doing
whatever one wants) but in the context of ‘living
one’s affairs’ where one expects no others’ attention
(free from subjection by others). It does not embed
domination over others. An intimate relationship
such as love grows naturally in the middle of the
crowd, spontaneously, uncontrollable (by ones
involved), and free. The lovers feel uninhibited
(hiding it/ announcing it) because others are
basically and non-negatively don’t care. Freedom
here is not ‘control’ because the lovers are passive –
they are not playing the control game: allowing or
ICEIS 2005 - INFORMATION SYSTEMS ANALYSIS AND SPECIFICATION
104
preventing others, but they hide/announce their love
as part of the love game.
In passive privacy others may ‘know’ private
affairs, yet they don’t ‘possess’ it. ‘Passive seeing’,
in this privacy does not lead to ‘subjection’. That is,
people who are being seen are not subjected to or
immune to any consequences of this seeing. Thus we
can understand Warren and Brandeis position when
they advocated that even truthful reporting about
private affairs was causing “a lowering of social
standards and morality.”
Passive freedom in this sense is ‘social’ freedom
that does not involve seclusion, isolation, solitude,
hiding, concealment, withdrawal, aloneness,
alienation, and all other negative implications. It is
also the privacy that involves feeling of security,
freedom from risk or danger, safety, etc. This
privacy-related security and freedom have been
identified as an inalienable right to privacy, based on
the Fourth Amendment to the United States
Constitution: The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated... This refers to any ‘penetrations of
individual privacy’.
Also, the root of this privacy can be found to a
great deal in the liberal notion of negative liberty. “I
am normally said to be free to the degree to which
no man or body of men interferes with my [passive]
activity. Political liberty in this sense is simply the
area within which a man can act unobstructed by
others. If I am prevented by others from doing what
I could otherwise do, I am to that degree unfree; and
if this area is contracted by other men beyond a
certain minimum, I can be described as being
coerced, or, it may be, enslaved. Coercion is not,
however, a term that covers every form of inability.
If I say that I am unable to jump more than ten feet
in the air, or cannot read because I am blind...it
would be eccentric to say that I am to that degree
enslaved or coerced. Coercion implies the deliberate
interference of other human beings within the area in
which I could otherwise [passively] act” (Berlin,
1969).
7 PASSIVE/ACTIVE FREEDOM
It remains the third categories in figure 1 where the
individual is the actor and the one acted on. This
type of activity appears in such expression as ““to
control of his own person”, “to control own body”,
“to remain silent”, “to develop one's intellect,
interests, tastes, and personality”, “to keep his/her
affairs to him/herself”, “to care for one's health and
person, to walk, stroll, or loaf”, “to sit on a park
bench or to stroll in a city”, “to testify against
oneself” (The Fifth Amendment), and “the right of
every individual to the possession and control of his
own person” (Union v Botsford, 1891). Justice
Douglas linked some of these rights with “personal
autonomy” as “rights protected by the First
Amendment and ... they are absolute, permitting of
no exceptions...” This active/passive privacy is a
special type of autonomy. Its side of Autonomy
includes decisions related to property-based
activities that can be categorized under property
rights. As mentioned previously, a property (e.g., a
pet) can become a public attraction without any
intrusion on the privacy of its owner. When the
owner is implicated in the publicity then the issue
moves to the active privacy domain. A self-based
autonomy includes decisions about proprietary
affairs. When I tattoo myself then I am the actor and
the one acted on. I may use others to help in this
tattooing action but they are only instruments in this
operation since they don’t have to know me and I
don’t have to know them. However when the tattoo
attracts the attention of others then the issue moves
to the active privacy domain. Similarly shopping is
in the domain of active/passive privacy when I use
cash. Shopping in this case is an autonomous and
private operation. When I use credits then the issue
moves to the active privacy domain. Also
identifying oneself is an active/passive privacy right.
When the individual volunteers his/her identification
or does an activity that results in others requiring
his/her identification then the issue moves to the
active privacy domain.
8 NON-PRIVACY FREEDOM
The types of freedom discussed above are privacy-
related types of freedom. They are different from
non-privacy related types of freedom. For example,
non-privacy related ‘freedom of speech/expression’
deals with non-private matters such as freedom of
expression in politics, religion, social affairs, etc.
Privacy related freedom of this type is a freedom
where its subject matter is private information of
individuals. This privacy related freedom of speech
should not be considered as a special type of non-
privacy related freedom of speech. There has been
no doubt regarding the social value of the later type
of freedom as has frequently been the case in human
history, while there have been questions about the
social value of some or all of the former type of
freedom. Treating them separately clarifies many of
the issues related to privacy.
The classical free speech claim is given by Mill,
“there ought to exist the fullest liberty of professing
THE “RIGHT TO BE LET ALONE” AND PRIVATE INFORMATION
105
and discussing, as a matter of ethical conviction, any
doctrine, however immoral it may be considered”
(Mill, 1978). This freedom is restricted if it causes
harms to others.
Example: According to Mill, the claim that corn
dealers are starvers of the poor is permissible free
speech, however, it is not permissible to express the
same view to an angry mob that has gathered outside
the house of the dealer because this action is “a
positive instigation to some mischievous act” (Mill
1978). There is a dispute about what Mill had in
mind; however, the example illustrates our notion of
privacy-related freedom. Giving the speech outside a
particular dealer can cause a direct harm to a specific
identifiable person. Unique identification through
the house of the dealer is clear. The cause of
illegitimate personal harm is not the angry mob but
the subjection of particular individual to a privacy
related speech act. The first case, where the
accusation is published in the press and may cause
non-personal harm (e.g., financial loss to ALL
dealers), is a non-privacy related freedom of
expression, assuming that no individual dealer is
identified in the article.
Non-privacy freedom of speech can be related to
privacy from another perspective. Preserving one's
privacy may motivate anonymous publications
concerning public issues (McIntyre v Ohio, 1995).
9 CONCLUSION
Using the general notion of private activities we
developed three types of privacy dependent on the
kind of activities of the individual: active, passive
and active/passive private activities. According to
Justice Rehnquist “Citizens attending a political
rally have no privacy interest” (Smith, 2000).
According to our classifications, he means here
active privacy. He also objected to count “arrests” as
“a private occurrence” even when there is no
“conclusive evidence of wrongdoing” (Smith, 2000).
The assumption in this case is that the act is counted
as an active private act where the individual did
something, however minor it is, to motivate
considered it as “a relevant factor by law
enforcement authorities." The notions of
“relevancy”, “a probable cause”, “a valid warrant”,
etc. are obviously related to this issue in the context
of active privacy not passive privacy. The passive
privacy notion appears when the “arrest” was an
absolutely ‘passive privacy event’ - say, the police
made a mistake and arrested a citizen sleeping at
his/her home; then the arrest may be treated
differently. These explicit refinements of privacy as
special cases of the right to be alone can clarify
many privacy-related issues. Advocates of
informational privacy can argued that police ought
not release records of arrests in passive private
events.
Warren and Brandeis did ‘net’ the three
ingredients of privacy in the concept of the right to
be let alone. The individual is one of the “others”
thus he/she has freedom as an individual and has
duty as an entity in the society. Active privacy has
‘right’ and contractual base while passive privacy
has ‘duty’ and moral context. The later is an “ideal
privacy” that requires that all others abide by a strict
respect to privacy, thus it depends upon how others
may discharge this duty. Clearly this is unattainable
in human society especially with respect to effective
enforcement of this duty on all members. The
individual may also not be receptive to this type of
privacy. “Except for a few very eccentric, and
probably dangerous, individuals, no one desires to
be let entirely alone” (Johnson, 2003). Hence
Warren and Brandeis did net it with active privacy
where the individual is not completely a passive
party with regard to his/her privacy. Thus the “right
to be let alone” has a utilitarian touch that aims at
maximizing benefits to the society and individuals.
These active and passive interpretations of the
right to be let alone have no right/duty correlativity.
The right to be actively free correlates with the duty
of non-interference by others; and the duty of others
of not subjecting the individual to privacy intrusion
correlates with the right of the individual to
immunity in private affairs. So Warren and
Brandeis’ “right to be let alone” integrates two rights
and two duties. Beside these double facets of
privacy, “to be let alone” encompasses the “real”
right to “self”: active/passive privacy. This concept
of “to be let alone” with its multi-rights and duties is
a genius apparatus for describing the private realm
of humans.
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