What must we hide: the ethics of privacy and the ethos of disclosure.

• Author: Allen, Anita L.
• Position: St. Thomas University School of Law Fall 2012 Distinguished Speaker Series

1. INTRODUCTION

   We live in an era of personal revelation. We are preoccupied by seeking, gathering, and disclosing information about others and ourselves. In the age of revelation, individuals and enterprises are fond of ferreting out what is buried away. We are fond of broadcasting what we know, think, do, and feel; and we are motivated by business and pleasure because we care about friendship, kinship, health, wealth, education, politics, justice, and culture. A lot of this has to do with technology, of course. We live at a historical moment characterized by the wide availability of multiple modes of communication and stored data, easily and frequently accessed. Our communications are capable of disclosing breadths and depths of personal, personally identifiable, and sensitive information to many people rapidly. In this era of revelation--dominated by portable electronics, internet social media, reality television, and traditional talk radio--many of us are losing our sense of privacy, our taste for privacy, and our willingness to respect privacy. Is this set of losses a bad thing? If it is a bad thing, what can be done about it?

   My reflections on these questions begin with a series of diverse examples from the past several years. The examples illustrate the emergent ethos of our revelatory era. The first and second examples portray voluntary self-revelation for amusement and monetary gain; a third and fourth example depict revelations concerning others, motivated by a desire for amusement in one case and geopolitical justice in another.

   Former Congressman Anthony Weiner was a Democratic member of the United States House of Representatives elected by the people of New York. (1) Congressman Weiner sent sexually suggestive images of himself as attachments to Twitter messages to young women, ages twenty-one and seventeen, he did not even know. (2) When knowledge of his "sexting" conduct became public in 2011, he was forced to resign from office under pressure from fellow Democrats. There was no obvious, objectively urgent need for Congressman Weiner's messages. We have to assume he was simply amusing himself in an especially risky and presumptuous manner. He cared little for the privacy of his body and sexual urges, so little that he risked the grave consequences of their exposure to strangers whom he had no reason to trust. (3)

   When Joyce Maynard was only eighteen years old, she had an intimate affair with famed writer J. D. Salinger. He was fifty-three years old. For a short while, the mismatched lovers lived together in his New Hampshire hideaway where his fame and genius seduced her. In 2006, Maynard announced she would sell the fourteen unpublished love letters that the reclusive Salinger wrote to her between April 25, 1972, and August 17, 1973. Sotheby's auction house agreed to manage the sale. Maynard knew how greatly Salinger valued his privacy and that he would be offended by her decision; but, she said that the letters were her property and, moreover, that she needed money to send her children to college. Her own privacy no longer mattered to her since she had already published At Home in the World, a memoir of the fascinating, scandalous affair. (4) Was it ethical for Maynard to exploit the law and further offend and embarrass a former lover for profit? It is not self-evident that ethics allow a person in Maynard's position this particular freedom.

   My next example, like the Congressman Weiner example, involves contemporary communications technologies. In 2010, a talented young musician named Tyler Clementi was a freshman at Rutgers University, the state university of New Jersey. He asked his roommate, Dharun Ravi, to let him have their room for the night for a date. Ravi consented, but decided to pull a prank on Clementi. He switched on a webcam in their dormitory room, webcasting Clementi's same-sex intimacies all over the Internet. When Clementi learned what had been done to him, the distraught, gay youth bid farewell to his friends online and then committed suicide. On September 22, 2010, the teenager leapt to his death off of New York City's George Washington Bridge. In my view, the ethics of Congressman Weiner's and Joyce Maynard's revelations are somewhat debatable, but the ethics of Ravi's are not. Ravi's thoughtless advantage taking was unethical; and, as moral luck would have it, it also had a devastating outcome compounding the sense of its wrongfulness. Ravi was convicted of the New Jersey crimes of "bias intimidation" and criminal privacy invasion. (5)

   My final example is WikiLeaks. WikiLeaks describes itself as "a non-profit media organization dedicated to bringing important news and information to the public." It does this by providing a "secure and anonymous way for independent sources around the world to leak information to its journalists." (6) While a member of the United States armed forces on active duty, then twenty-two year old Private Bradley Manning provided WikiLeaks with sensitive United States Government documents without authority, including field reports from wars in Iraq and Afghanistan, classified State Department diplomatic cables, records concerning Guantanamo Bay detainees, and videos of United States military missions. (7) Manning was arrested in 2010 and tried in 2011. (8) The sensitive documents he handed over to Wikileaks were published by WikiLeaks and then republished by major mainstream media and social media alike. Many people were appalled that such a thing could occur. But strikingly, many were not appalled either because they failed to recognize any legitimate expectations of privacy, confidentiality or security, or because they believed the social good of disclosure far outweighed any embarrassment to diplomats and nations.

   What is the social good at issue? According to WikiLeaks, it publishes "material of ethical, political and historical significance while keeping the identity of [its] sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices." (9) Julian Assange defends his group's approach to forced government accountability--"shining the light on the secret crimes of the powerful." (10) Some link the "Arab Spring" pro-democracy movements afoot in North Africa to distrust and disgust fueled by WikiLeaks. (11) Nonetheless, some professors of foreign relations initially said they would not incorporate information revealed by WikiLeaks into their university courses because it was acquired and published unethically.

   In the age of revelation, sensitive information will come to light whether it ought to or not. Whether it is our love lives or political strategies, all will come to light. For better or worse, everything from furtive street crimes to genomes will come to light. (12)

2. THE VALUE OF PRIVACY

   The four examples with which I began raise concerns about the value of privacy. They show that some people especially do not value their own privacy, and some do not value the privacy of others. Philosophically, these examples say something about the positive ethics of informational privacy. (13) By informational privacy, I mean conditions of limited access to and limited disclosure of personal data. In situations in which people actually want privacy protected, allowing individuals to control personal information about themselves has been an important way to achieve desired forms of limited access. A discussion of the ethics of informational privacy would be expected to address questions about when to restrict publication of intimate facts and when to require confidentiality. (14) Most of the foundational work on the ethics of privacy in the United States has been produced since the 1960s when scholars began to worry about the impact of computing and data banking. (15)

   A good deal of the early work elevates privacy to the status of one of the great values of enlightened civilization. However, some of the technology theorists who write about privacy today are dismissive of privacy. They find it annoying and that it has irrelevant value. They see it as a dead, unwanted value about as useful and interesting as our great grandmothers' yellowed linens. An Internet policy colleague of mine at the University of Pennsylvania bemoans that conversations about Internet policy always seem to "devolve" into discussions of privacy. Yet, the overwhelming majority of academic philosophers who write about privacy, myself included, write in praise of it. (16) I caution against privacy perils and excesses, but make the case for its perpetuation in my work. (17)

   So what can be said in favor of privacy and its protection? Let me list the values, good, and ends that I, and other like-minded scholars, relate to privacy: (18)

   * Self-expression: Opportunities for privacy allow individuals to better express their true personalities and values.

   * Good Reputation: Privacy helps preserve reputations.

   * Repose: Privacy may enable tranquility and relaxation.

   * Intellectual Life: Privacy may enhance creativity and reflection, which may be good for an individual's own sake, but which can lead to useful cultural products and inventions.

   * Intimacy and Formality: Opportunities for privacy are thought to enable individuals to keep some people at a distance, so that they can enjoy intense intimate relationships with others.

   * Preferences and Traditions: Privacy allows the individual or groups of like-minded individuals the ability to plan undertakings and live in accord with preferences and traditions.

   * Civility: Privacy norms sustain civility by condemning behaviors that offend courtesy, honor, and appropriateness.

   * Human Dignity: Philosophers have said that respect for privacy is, in many ways, respect for human dignity itself.

   * Limited Government: Privacy rights against government demand that state power is limited and unobtrusive, as liberal democracy requires.

   * Toleration: Privacy rights demand that government tolerate...