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
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) .
References:
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.
Further reading: here.
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