The two Western cultures of privacy: dignity versus liberty.

Author:Whitman, James Q.
 
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CONTENTS I. A TRANSATLANTIC CLASH II. DIGINITY VERSUS LIBERTY III. THE EUROPEAN TRADITION OF DIGNITY: LEVELING UP IV. THE RISE OF FRENCH PRIVACY LAW V. THE RISE OF GERMAN PRIVACY LAW VI. CONTEMPORARY OF CONTINENTAL LAW: PROTECTING THE AVERAGE PERSON'S PUBLIC IMAGE VII. CONTEMPORARY OF CONTINENTAL LAW: FREE EXPRESSION AND PUBLIC NUDITY VIII. WARREN AND BRANDIES REVISITED IX. THE AMERICAN TRADITION: PROTECTING THE SANCTITY OF THE HOME X. CONCLUSION Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic--conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right.

This Article explores these conflicts, trying to show that European privacy norms are founded on French and German ideas of "personal honor. "Continental "privacy," like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the "personal honor" of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism. The Article then discusses the current state of French and German law with regard to matters such as consumer credit reporting, public nudity, and the law of baby names. It contrasts continental approaches to what we find in American law. Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of "personhood." Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.

  1. A TRANSATLANTIC CLASH

    In every corner of the Western world, writers proclaim "privacy" as a supremely important human good, as a value somehow at the core of what makes life worth living. Without our privacy, we lose "our very integrity as persons," Charles Fried declared over thirty-five years ago. (1) Many others have since agreed that privacy is somehow fundamental to our "personhood." (2) It is a commonplace, moreover, that our privacy is peculiarly menaced by the evolution of modern society, with its burgeoning technologies of surveillance and inquiry. Commentators paint this menace in very dark colors: Invasions of our privacy are said to portend a society of "horror," (3) to "injure [us] in [our] very humanity," (4) or even to threaten "totalitarianism," (5) and the establishment of law protecting privacy is accordingly declared to be a matter of fundamental rights. (6) It is the rare privacy advocate who resists citing Orwell when describing these dangers.

    At the same time, honest advocates of privacy protections are forced to admit that the concept of privacy is embarrassingly difficult to define. (7) "[N]obody," writes Judith Jarvis Thomson dryly, "seems to have any very clear idea what [it] is." (8) Not every author is as skeptical as Thomson, but many of them feel obliged to concede that privacy, fundamentally important though it may be, is an unusually slippery concept. In particular, the sense of what must be kept "private," of what must be hidden before the eyes of others, seems to differ strangely from society to society. This is a point that is frequently made by citing the literature of ethnography, which tells us that there are some societies in which people cheerfully defecate in full view of others, and at least a few in which the same is true of having sex. (9) But the same point can be made by citing a large historical literature, which shows how remarkably ideas of privacy have shifted and mutated over time. (10) Anyone who wants a vivid example can visit the ruins of Ephesus, where the modern tourist can set himself down on one of numerous ancient toilet seats in a public hall where well-to-do Ephesians gathered to commune, two thousand years ago, as they collectively emptied their bowels. (11)

    If privacy is a universal human need that gives rise to a fundamental human right, why does it take such disconcertingly diverse forms? This is a hard problem for privacy advocates who want to talk about the values of "personhood," harder than they typically acknowledge. It is a hard problem because of the way they usually try to make their case: Overwhelmingly, privacy advocates rely on what moral philosophers call "intuitionist" arguments. (12) In their crude form, these sorts of arguments suppose that human beings have a direct, intuitive grasp of right and wrong--an intuitive grasp that can guide us in our ordinary ethical decisionmaking. Privacy advocates evidently suppose the same thing. Thus, the typical privacy article rests its case precisely on an appeal to its reader's intuitions and anxieties about the evils of privacy violations. Imagine invasions of your privacy, the argument runs. Do they not seem like violations of your very personhood? Since violations of privacy seem intuitively horrible to everybody, the argument continues, safeguarding privacy must be a legal imperative, just as safeguarding property or contract is a legal imperative. Indeed, privacy matters so much to us that laws protecting it must be a basic element of human rights.

    This kind of argument can certainly make a powerful impression on first reading, since it is true that we can all imagine some violation of our privacy that seems very horrible. This is especially so when the writings in question are composed by scholars with a real literary gift, like Fried. Nevertheless, no matter how anxiety-inducing it may be to read these authors, their arguments only carry real weight if it is true that the intuitions they evoke are shared by all human beings. Yet all the evidence seems to suggest that human intuitions and anxieties about privacy differ. We do not need to refer to the practices of exotic ancient or modern cultures to demonstrate as much: It is true even as between the familiar societies of the modern West. In fact, we are in the midst of significant privacy conflicts between the United States and the countries of Western Europe--conflicts that reflect unmistakable differences in sensibilities about what ought to be kept "private."

    To the Europeans, indeed, it often seems obvious that Americans do not understand the imperative demands of privacy at all. The Monica Lewinsky investigation, in particular, with its numerous and lewd disclosures, led many Europeans to that conclusion. (13) But the Lewinsky business is not the only example: There are plenty of other aspects of American life that seem to Europeans to prove the same thing. Let me offer a variety of examples from France and Germany, two countries that have been my focus in recent research, and that are my focus in this Article as well. (14) Some of the things that bother French and German observers involve what Americans will think of as trivialities of everyday behavior. For example, visitors from both countries are taken aback by the ill-bred way in which Americans talk about themselves. As a French article warns visitors to the United States, America is a place where strangers suddenly share information with you about their "private activities" in a way that is "difficult to imagine" for northern Europeans or Asians. (15) Americans have a particularly embarrassing habit, continental Europeans believe, of talking about salaries. It is "normal in America," an Internet site informs German tourists, for your host at dinner to ask "not just how much you earn, but even what your net worth is" (16)--topics ordinarily quite off-limits under the rules of European etiquette. (17) Talking about salaries is not quite like defecating in public, but it can seem very off-putting to many Europeans nevertheless.

    But it is not just a matter of the boorish American lack of privacy etiquette. It is also a matter of American law. Continental law is avidly protective of many kinds of "privacy" in many realms of life, whether the issue is consumer data, (18) credit reporting, (19) workplace privacy, (20) discovery in civil litigation, (21) the dissemination of nude images on the Internet, (22) or shielding criminal offenders from public exposure. (23) To people accustomed to the continental way of doing things, American law seems to tolerate relentless and brutal violations of privacy in all these areas of law. I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

    These are clashes in attitude that go well beyond the occasional social misunderstanding. In fact...

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