Privacy and its American Context

Our world − saturated by social media and artificial intelligence − has become increasingly public. Ever more willing to share intimate details, Americans young and old post very private, sometimes damning, information online with little regard for consequences. Partly as a result, both the government and private companies have access to unprecedented amounts of information that is compiled into databases and readily available to those willing to pay subscription fees. Given the sheer pervasiveness of technology and data collection, we ought to have an intensive national dialogue on an appropriate legislative response. Before that debate happens, however, we must have a firm theoretical understanding of what exactly we mean by privacy.

Privacy has been a feature of American culture since our founding. Then, much of the conversation sought to distinguish retirement from hermit-like solitude. Retirement from public life was as much a political trope as a lived reality. For a certain slice of American society in the eighteenth century, returning home to one’s farm (usually understood to be a rather sprawling estate) and books constituted retirement. No longer holding public office, such men were “private” citizens. Quite unlike retirement, by contrast, hermitage was a dangerous, self-imposed isolation. Many tracts were published that warned against becoming a hermit, as it signaled a conscious rejection of American democracy, a form of government requiring active participation. Completely withdrawn, hermits willingly relinquished their voice in politics.

As the nineteenth century progressed, the debate over privacy became increasingly gender-specific. In the North especially, the public and private spheres were explicitly those of men and women respectively. The public was the man’s realm. Removed from the home, he was disengaged from the woman’s private realm. That realm was defined in terms of Victorian domestic ideals, which insisted that the woman lead the home spiritually. In the South, however, such distinctions figured less prominently. More agrarian in nature, the southern economy kept men in the home. Although women had a specialized role in the household, that world was very much dominated by men. Unlike northern women, those of the South did not have a discrete private sphere.

Despite these past understandings of privacy, Americans in the last hundred years or so have come to a different one. In 1890, Samuel D. Warren and Louis Brandeis published “The Right to Privacy” in the Harvard Law Review, arguing that citizens have “the right to be let alone.” Subsequent cases−namely, Katz v. United States and Roe v. Wade−have cemented legal claims to privacy, marking the judicial establishment of broader privacy protections. Late twentieth- and early twenty-first-century scholars, however, have co-opted those and other rulings to falsely divine a general constitutional right to privacy. Such a claim is wrong, and dangerously so.

Judith Decew is at the very forefront of the political theorists pushing for an expansive understanding of privacy. Arguing that society ought to have a presumption in favor of privacy, Decew conceptualizes it as encompassing enforceable claims to “informational privacy,” “accessibility privacy,” and “expressive privacy.” In addition to the fact that those terms are fairly nebulous, it seems that Decew would have almost everything defined as a privacy concern. In doing so, she not only robs privacy of a practical and workable legal understanding−those protections guaranteed by the Fourth Amendment−but would also move our society toward a degree of atomization that is antithetical to democracy. In a sense, her theory risks the creation of modern hermits.

Decew seeks to redefine an American philosophy that presents an atomized society as desirable. If, as Decew contends, there is a more expansive sphere of privacy than most of us are used to or agree on, then the only way to avoid violating each others’ extensive privacy interests is to tread cautiously around them. And where, in that case, can one act with what political theorist George Kateb calls “the democratic gregariousness,” the democratic sociability or fellowship, necessary for upholding the American political system? Behaving in accordance with Decew’s rather extreme vision of privacy would require not only restricting ourselves from accessing information that has already been shared by others, but also that we neither prevent others from expressing themselves nor get too close to their persons.

Take, for example, Decew’s assertion that by overhearing a hushed conversation on a subway you intrude on the privacy of the people talking. By privatizing that public place, according to Decew, these people have both informational and expressive interests in privacy. The lowering of a voice implies that the information being shared is intimate and not meant for all ears. However, by making information available to a degree that invites others access to it implies a certain nonchalant attitude towards that information. The only way to absolutely protect information, then, is to not share it. If, as Decew contends, there is an expansive sphere of privacy, then the only way to avoid violating other’s extensive privacy interests is to tread cautiously around them. Such limitations are overly restrictive.

The American legal system’s approach to privacy is neither unified nor theoretically driven. Within that approach, there very may well be constitutional rights  in addition to tort interests (meaning personal interests against harm). So that which Decew considers its weakness, a lack of specificity and clear definition, is actually its strength. It matters little if the legal tradition breaks along lines of tort and Constitution, because one can readily identify the location of that privacy interest. Decew’s conception of privacy, in contrast, does not clearly locate the three types of interest she identifies.  By avoiding such a broad theoretical approach, which would prevent democratic gregariousness and outsource personal responsibility, the Constitution and American tort law protect traits of our citizenry that are essential to the maintenance of democracy.