Is it ever right to impose privacy on someone against their will?

Anita Allen believes that there are times where privacy is seen as being unpopular, unwanted, resented, not-preferred, or even despised by its intended beneficiaries or targets. She poses the question: “Could certain privacies be so important that they should be legally protected and the legal protections not subject to voluntary waiver by their intended beneficiaries?” (Allen 2011 p8).

Her response to people having a need for privacy, even if they themselves don’t recognise that need, is to put forward the idea of what she calls “unpopular privacy”: “In a free society there is a place for freedom of choice about privacy, and a place for nudging and persuasion about privacy, and a place for co-ercing privacy. Demanding, imposing and co-ercing privacy which is unpopular – that is unwanted, and even resented to prevent serious harm and to preserve foundational privacy” (Allen 2011 pxii)

Anita Allen’s view is that some forms of privacy are so important that moderate forms of paternalism, consistent with a fairly broad understanding of political liberalism  may be warranted in order to impose privacy laws “for the benefit of uneager beneficiaries” (Allen 2011 pxi).

If people were able to make rational decisions for themselves, where they had been fully informed of the facts and were able to weigh up the advantages and disadvantages of giving out personally identifiable information then the case for imposing privacy on someone against their will would be difficult to justify. However, those things must not be assumed to be present. The reality can be quite different:

“Rampant practices of surreptitious as well as flagrant data gathering, dissemination, aggregation, analysis and profiling mean that it isn’t appropriate to think of the data subject as a free and rational agent able to make decisions without interference from third parties such as government regulators” (Nissenbaum 2011 p34).

“Not all individuals are rational, and an individual cannot be rational at all times” (Wang, Yan et al. 2017 p1429) when considering privacy protective behaviours in the light of the privacy calculus model, where the theory anticipates a rational calculus of the costs and benefits.

(Hull 2015 p91) cites three types of reasons why self-management can be expected to underprotect privacy:

  • users do not and cannot know what they are consenting to;
  • privacy preferences are very difficult to effectuate; and
  • declining to participate in privacy-harming websites is increasingly not a viable option for many.

There are times where one could argue that people need saving from themselves, but in democratic societies the question of imposing privacy is clearly a controversial one. If the premise of unpopular privacy is credible, the question is when is the imposition of privacy on someone against their will appropriate. Allen specifically refers to where it is to prevent serious harm and to preserve foundational privacy.

REFERENCES

ALLEN, A.L.1.[.A., 2011. Unpopular privacy : what must we hide? Oxford: Oxford University Press.

HULL, G., 2015. Successful failure: what Foucault can teach us about privacy self-management in a world of Facebook and big data. Ethics and Information Technology, 17(2), pp. 89-101.

NISSENBAUM, H., 2011. A contextual approach to privacy online. Daedalus, the Journal of the American Academy of Arts & Sciences, 140(4), pp. 32-48.

WANG, L., YAN, J., LIN, J. and CUI, W., 2017. Let the users tell the truth: Self-disclosure intention and self-disclosure honesty in mobile social networking. International Journal of Information Management, 37(1), pp. 1428-1440.

 

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