Defining Privacy: Lesson From a Hotel Room
The sign on my door means that I don't want anyone to bother me, and I don't want any person with a key to enter my room. Everyone understands the meaning.
But I was in town to give a speech on privacy, and part of what I planned to discuss was the meaning of privacy. It is not an easy term to define.
At the hotel, privacy means one thing. On the telephone, privacy has a different meaning - probably several meanings. In my mailbox, privacy may mean something entirely different. And we have only begun to scratch the surface.
What is this thing called privacy? If you root around the U.S. Constitution, you can find many different meanings. The Bill of Rights is the best place to start, and the Fourth Amendment is clearer than some. It limits the power of government to enter your house or to take private papers without a warrant. You are welcome to define the objective as restricting government or protecting individuals (both are good answers). The protection is not absolute, but privacy protection rarely is.
We also can find privacy in the First Amendment. The right to free speech, to exercise religion and to assemble (e.g., join a political party or union) all have privacy components. So does the Fifth Amendment's protection against self-incrimination. Privacy also is a basis for the right to abortion, to use contraception and to educate your children as you see fit.
One of my favorite constitutional privacy protections comes from the rarely mentioned Third Amendment. That's the amendment prohibiting quartering of soldiers in private homes without the consent of the owner. Nothing will invade your privacy more than soldiers sharing your living space against your will.
Privacy also can be found elsewhere. Copyright laws protect the privacy of authors. One of an author's rights is the right to first publication of his work. That prevents others from displaying his writings without his consent.
The recent flap over the sale of J.D. Salinger's letters to Joyce Maynard was resolved based on this law. Salinger sent the letters, but he retained the copyright. No one could publish his letters without his approval.
If we turn to the scholars for a definition of privacy, we will not get any help. They can't agree with each other, and the field is littered with Phi Beta Kappa keys and unreadable books and articles.
Louis Brandeis said 100 years ago that privacy is the right to be let alone. I haven't got a clue what that means.
Another scholar said privacy is the right to control the use of personal information. That sounds better, but the world has grown too complex to expect individuals to be able to exercise control. Record keepers have an interest in the records they maintain, just as record subjects do. We have to consider the interests of record keepers, so we can't just define privacy in terms of control by record subjects.
A more interesting and more recent approach views privacy as a societal interest rather than a personal one. We all benefit if individuals have privacy rights.
Anyone who has been reading this column for a while should be able to guess where I am heading. I can't define privacy any better than anyone else. Even if I could, the chances of consensus are nil. Privacy is a concept that simply does not lend itself to a single, simple or one-dimensional meaning.
We can, however, clearly define fair information practices.
This set of rules regulating the collection, maintenance, use and disclosure of personal information has surprisingly similar content all over the world. Just about every privacy law enacted anywhere in the past 20 years is based on fair information practices.
Fair information practices do not cover the privacy waterfront. They don't apply clearly, for example, to surveillance activities by government or employers. They may even be a bit out of date.
Do we have a right to anonymity? Should we? Those are unaddressed questions. But fair information practices offer a way to balance interests of record keepers and record subjects.
My hotel's privacy sign had two sides, of course.
The other side said "Service Please." In the context of a hotel, that side had a clear meaning. But the "Privacy/Service Please" choice is symbolic of the trade-offs involved in many commercial activities involving individuals.
It is not always possible for people to have both the privacy and the service they want. That does not mean, however, that the only alternatives are one or the other.
Just like at the hotel, it is possible to offer consumers both privacy and service in a manner that allows consumers to be happy and businesses to make a profit. Neither side may get everything that it wants, but fair information practices are about balance.
Robert Gellman is a Washington-based privacy and information policy consultant and former chief counsel to the House subcommittee on information, justice, transportation and agriculture.