Privacy Brief History: 2 cultures Deontology The difference between Private and public privacy, compared to political activity and isolated intellectual pursuits(Aries and Duby; Moore.) Socrates states criticism over politics should be private Aristotle recognizes difference a boundary between the affair of state and household’s Confucius and Aristotle distinguish public activity of government and the private affairs of family life. To regard the two as being identical in interest is a disaster that comes from a lack of consideration. (Tzu 1964: 106) 1. A private obligation of a son to care for his father overrides the public obligation to obey the law against itself 2. A timid man who is pretending to be fierce is like a man who is so ‘dishonest as to sneak into places where one has no right to be, by boring a hole and climbing through a gap Utilitarianism Lockets View Public vs Private Locket’s public-private distinction disagrees with his concept of the state of nature, the legitimate function of government, and property rights. Locket’s main reason for uniting the commonwealth was to fix the mutual obligation on one another by establishing gov’t. Lockean’s were private behind walls. – without the pressures of others. John Stuart Mills Society should only interfere with actions of a person that concern others and not with the actions that concern ones self. Like LocketBelieve that liberty, property and life rights secure a persons privates spaces and domains with out social pressures Privacy allows intimacy and secrecy and control access to themselves In both Cultures, privacy was a commodity purchased with power, money, and privilege. - Barriers such as walls, fences, and even servant secured areas of isolation Seclusion on for the upper class Lesser degree was also secured by those with more modest means Philosophical definition: 2 types Nonnormative(descriptive) privacy definition Describes the state or condition where privacy obtains - Parents def: privacy is a condition of not having undocumented personal knowledge about one that isn’t being controlled by others Normative Privacy Definition References moral obligations or claims. – DeCew said, “legitimate concern of others” she includes the ethical considerations. - Being left alone Right to be left alone Condition or a right that a condition contains. Six Categories of concepts of privacy(Solove, Moore) 1. 2. 3. 4. 5. 6. The right to be let alone Secrecy Intimacy Control over information Restricted access Privacy as a cluster concept View on Privacy Warren and Brandeis Concept the “right to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” (Warren and Brandeis 1890: 194) Richard Posner Right to conceal discreditable facts about one’s self – Right to secrecy The realm where an actor can act without disclosure and accountability to others. Jeff Rosen: “In order to flourish, the intimate relationships on which true knowledge of another person depends need space as well as time: sanctuaries from the gaze of the crowd in which slow mutual self-disclosure is possible.” Julie Inness States, “privacy is the state of an agent having control over decisions concerning matters that draw their meaning and value from the agent’s love, caring, or liking” Alan Westin “privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves” Gross Argues: That privacy is “ the condition under which there is control over acquaintance with one’s affairs” – a person who has legal right to make deciisons Bok: “privacy is the condition of being protected form unwanted access by others - Physical access Access to information Attention Gavison - Secrecy Anonymity Solitude Gavisons argues privacy may be to narrow. This is because the view that the collection, computerization, and storage of information doesn’t fall into her view because these activities often don’t reveal secrets, destroy anonymity, or thwart solitude” Those who view privacy as a cluster Judith Wagner Believes that privacy is a concept that ranges over inform, access and expressions. Daniel Solove Argues that the context-dependent approach for defining privacy - i.e. context of information can focus on certain dimensions of privacy that will not be as important in different contexts like spatial control. Moore Argued that privacy is the right ot control access to and uses of person information and spatial location Moral Value of Privacy Stanley Benn “Respect for someone as a person, as a chooser, implies respect for him as one engaged in a kind of selfcreative enterprise, which could be disrupted, distorted, or frustrated even by so limited an intrusion as watching” Rachels(1975) Privacy is morally valuable because it allows individuals to control the patterns of behavior necessary for a stable and meaningful purpose. Joseph Kupfer “privacy is essential to the development and maintenance of an autonomous self ” Rossler Privacy is a necessary condition for individual autonomy General Critiques of privacy Reductionism Argue that privacy is from other rights such as life, liberty and property rights. Meanign several distinct core meanings that are grouped together Personal property right are the same as property rights The “other values” critique Argues that privacy is less important such as accountability, safety, or community rights. Sensitivity to privacy violations makes one forget that more important, values are lost or minimized Agree spying is useful for protecting children or our care who cannot protect themselves Posner’s critique Richard Posner argued that privacy in the economic sense determines how privacy out to be appkied in specifit instances. - Emphasis on business deals: effect economy Not personal information, opposed to a business, a person will tend to increase personal wealth over the growth of the ecomomuy He also states persons right to privacy of personal information is misleading and manipulative. Data Mining, Surveillance and Transparency – Privacy is Dead The growth of technology will eventually push privacy to extinction Feminist Critique Privacy protects domination, abuse and violation and it protect the hieracrchical power relationships that subject women to subordination by men. This creates inequality Dictionary Privacy: - The right to be left alone(Warren and Brandeis.) Information control(Alan Westin) Privacy is the condition of not having undocumented personal knowledge about on possessed by others(Parent.) State of possessing control over a realm of intimate decisions, which include decisions of intimate access, intimate information, and intimate actions Morally valuable and worthy of protection View it with suspicion Required distance, space and solitude from public life(Aristotle) Polis City in Greece, considered Philisophical purposes Autonomy Quality of state of being selfgoverning Contentious Likely to cause an argument Interference The act of interfering with something The State of Nature Locket is referencing without government but mutual obligation Incursion Invasion or sudden attack Doing Allowing Distinction When people are harmed as a result of their behaviour, morally, it matters whether a person caused harm or allow harm to happen to them. Self Regarding Actions Actions that only harm yourself or others without their consent Others Regarding Actions by someone that cause harm that are not of sound mind(not rational, free, undeceived, consenting adults. Utilitarianism Actions are right if they are useful or for the benefit of a majority the doctrine that an action is right insofar as it promotes happiness, and that the greatest happiness of the greatest number should be the guiding principle of conduct. Sovereign Self-governing state See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/280292851 Privacy Article in Library Hi Tech · March 2007 DOI: 10.1108/07378830710735867 CITATIONS READS 18 275 2 authors, including: Adam D. Moore University of Washington Seattle 66 PUBLICATIONS 715 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: Privacy, Transparency, and the Prisoner's Dilemma View project Value of Privacy View project All content following this page was uploaded by Adam D. Moore on 09 March 2021. The user has requested enhancement of the downloaded file. PR O O F 364 Privacy D Adam D. Moore C O R R EC TE There is little agreement about how to define the term “privacy.” For example, Warren and Brandeis, following Judge Thomas Cooley, called it “the right to be let alone” (Warren and Brandeis 1890: 194). Alan Westin (1967) described privacy in terms of information control. William Parent argued that “privacy is the condition of not having undocumented personal knowledge about one possessed by others” (Parent 1983: 269), while Julie Inness defined privacy as “the state of possessing control over a realm of intimate decisions, which include decisions about intimate access, intimate information, and intimate actions” (Inness 1992: 140). Privacy is also viewed by many as morally valuable and worthy of protection, while others have viewed it with suspicion. This essay will review each of these areas, including (1) a brief history of privacy, (2) philosophical definitions of privacy along with specific critiques, (3) views about the value of privacy, and (4) general critiques of privacy. A Brief History of Privacy: Classical Greece and China, Locke and Mill U N It is difficult to write about the history of privacy because of an overabundance of subject matter (Ariès and Duby 1988–91; Moore 2005, 2007). This section will focus on privacy as developed in two distinct cultures and within two different moral traditions (see deontology; utilitarianism). While there may be many different culturally dependent conceptions of privacy there is much overlap and a rich history. The point of this section is not to highlight a single conception of privacy that runs The International Encyclopedia of Ethics, First Edition. Edited by Hugh LaFollette. © 2013 Blackwell Publishing Ltd. Published 2013 by Blackwell Publishing Ltd. LaFollette_P364.indd 1 3/14/2012 11:52:52 AM 2 privacy R EC TE D PR O O F across different cultural and moral traditions. Rather the focus is on a few different traditions that promote privacy and provide a partial backdrop for current debates. The distinction between public and private activity was entrenched in Greek society by the time of Socrates, Plato, and Aristotle (see aristotle; plato). Typically the distinction was cast in terms of political activity compared to isolated intellectual pursuits (Ariès and Duby 1988–91; Moore 1984). Both Socrates and Aristotle defend the view that a life of intellectual and private pursuit was a worthwhile life. In Plato’s Apology Socrates notes, “Perhaps it may seem strange that I go about and interfere in other people’s affairs to give this advice in private but do not venture to come before your assembly and advise the polis.” Socrates goes on to say that had he gone into politics he would have been put to death for opposing injustice. He ends with, “A man who really fights for the right, if he is to preserve his life even for a little while, must be a private citizen, not a public man” (Plato, Apology 31d–32a). Socrates thus affirms the view that criticism of governmental policy and officials is best pursued behind walls of privacy. Aristotle also makes use of a public–private distinction. First, he recognizes a boundary between affairs of the state or polis and household affairs (Aristotle 1984: 2005–6, 1263b–1264b). Second, contemplative activity – which for Aristotle was essential for human flourishing – required distance, space, and solitude from public life (Aristotle 1984: 1861, 1177b). This is one of the first references to what was to become a dominate theme in Western thought – the good life is not necessarily tied to public activity (Moore 1984). Plato, on the other hand, was openly hostile to privacy – deeming it unnecessary and counterproductive in relation to the ideal state. In the Republic Plato writes, “in the perfect State wives and children are to be in common … [and] houses … which are common to all, and contain nothing private, or individual” (Plato 1892: 801, 543a). In the Laws Plato advocates the elimination of private spheres of activity: U N C O R The first and highest form of the state and of the government and of the law is that in which there prevails most widely the ancient saying, that “Friends have all things in common.” Whether there is anywhere now, or will ever be, this communion of women and children and of property, in which the private and individual is altogether banished from life, and things which are by nature private, such as eyes and ears and hands, have become common, and in some way see and hear and act in common, and all men express praise and blame and feel joy and sorrow on the same occasions, and whatever laws there are unite the city to the utmost – whether all this is possible or not, I say that no man, acting upon any other principle, will ever constitute a state which will be truer or better or more exalted in virtue. (Plato, Laws, Ch. 5, 738d–e) Plato views privacy as something that is inherently disvaluable in relation to the perfect state. Moreover he recognizes no psychological, sociological, or political needs for individuals to be able to control patterns of association and disassociation with their fellows. The public–private distinction was also well understood by the Warring States period – 403 bce–221 bce – in China (Moore 1984). Like Aristotle, Confucius LaFollette_P364.indd 2 3/14/2012 11:52:53 AM pri vacy 3 O F (551–479 bce) distinguished between the public activity of government and the private affairs of family life (see confucious). While Plato rejects, Aristotle and Confucius affirm, many of the six categories of privacy discussed below. Confucius contends that “a private obligation of a son to care for his father overrides the public obligation to obey the law against theft” and that “a timid man who is pretending to be fierce is like a man who is so ‘dishonest as to sneak into places where one has no right to be, by boring a hole or climbing through a gap’”(Moore 1984: 223). Han Fei Tzu (280–233 bce) writes: PR O When T s’ang Chieh [a mythic cultural hero] created the system of writing, he used the character for “private” to express the idea of self-centeredness, and combined the elements for “private” and “opposed to” to form the character for “public.” The fact that public and private are mutually opposed was already well understood at the time of T s’ang Chieh. To regard the two as being identical in interest is a disaster which comes from lack of consideration. (Tzu 1964: 106) U N C O R R EC TE D While not sophisticated and clearly contentious, the public–private distinction arose and was a matter of philosophical debate in two distinct cultural traditions. In both of these cultures privacy was a commodity purchased with power, money, and privilege. Barriers such as walls, fences, and even servants secured areas of isolation and seclusion for the upper class. To a lesser degree, privacy was also secured by those with more modest means. Within the liberal tradition the public–private distinction has been used to mark the boundary of justified interference with personal conduct in the political theories of John Locke and John Stuart Mill (see locke, john; mill, john stuart). For Locke the public–private distinction falls out of his conception of the state of nature, the legitimate function of government, and property rights. The sole reason for uniting into a commonwealth, for Locke, was to remedy the inconveniencies of the state of nature – the function of government was to secure the rights of life, liberty, and property (Locke 1980: 5–30). On estates and behind fences, walls, and doors Lockean individuals secure a domain of private action free from public pressures or interference. John Stuart Mill also limits societal or public incursions into private domains. Mill argues: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill 1978: 9). Recognizing that harm could occur through action and inaction, Mill accepted a version of the doing–allowing distinction (see doing and allowing) – actions that cause harm are different from failings to prevent harm. In anticipation of the question “won’t any action someone performs affect others in some way” Mill offers his doctrine of “self-regarding” and “other-regarding” acts (Mill 1978: 78–82) and addresses this question in chapter 5 of Utilitarianism (Mill 1861: 41–63). One view is that, for Mill, strategic rules or rights provide the standard of harm and the boundary between self-regarding and other-regarding acts. When an action violates the rights of another, moral harm has occurred and appropriate action or interference LaFollette_P364.indd 3 3/14/2012 11:52:53 AM 4 privacy O F is warranted by citizens or government agents. Liberty, property, and life rights appear to be the kinds of rights that Mill endorses. If so, then like Locke, Mill uses rights to secure individuals the moral space to order their lives independent of social pressures. While not explicit in their defense, both Locke and Mill promote many of the central features of privacy mentioned in the following section. Individual liberty and private property provide a sanctuary against governments and neighbors. Within private domains individuals obtain intimacy and secrecy, and can control access to themselves. O Definitions of Privacy R R EC TE D PR Definitions of privacy are typically grouped into two general types. A descriptive or nonnormative account describes a state or condition where privacy obtains. An example would be Parent’s definition: “privacy is the condition of not having undocumented personal knowledge about one possessed by others” (Parent 1983: 269). A normative account, on the other hand, makes references to moral obligations or claims. For example, when DeCew talks about what is of “legitimate concern of others” she includes ethical considerations (DeCew 1997: 58). There is little agreement regarding the descriptive or normative components of privacy and many of the definitions surveyed below could be cast along either dimension. For example, we could define privacy as being let alone or as a right to be let alone. Privacy could be cast as a condition that obtains or as a right that a condition obtains. While admittedly imprecise, different conceptions of privacy typically fall into one of six categories or combinations of the six (Solove 2002; Moore 2008, 2010): (1) the right to be let alone; (2) secrecy; (3) intimacy; (4) control over information; (5) restricted access; and (6) privacy as a cluster concept. We will take them up in turn. Warren and Brandeis argued: U N C O recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the “right to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” (Warren and Brandeis 1890: 194) LaFollette_P364.indd 4 While acknowledged as starting the modern debate, the conception of privacy proposed by Warren and Brandeis has been widely criticized as too vague (Gavison 1980; O’Brien 1979; Allen 1988; Bloustein 1964; Solove 2002). According to this definition any offensive or hurtful conduct would violate a “right to be let alone,” yet we may not want to conclude that such conduct is a violation of privacy. For example, suppose that Smith inadvertently brushes against Jones as they pass each other on a busy sidewalk – not every violation of a right to be let alone seems to be a privacy violation. This conception is too narrow as well. Consider the case of covert surveillance where a target is “let alone” but there is a clear privacy violation 3/14/2012 11:52:53 AM pri vacy 5 U N C O R R EC TE D PR O O F (Thomson 1975). In this latter case, someone may be let alone in some sense and yet seemingly have their privacy violated. Richard Posner has defined privacy as the “right to conceal discreditable facts about oneself ” – a right to secrecy (Posner 1981: 46). Amitai Etzioni concurs, writing that privacy is “the realm in which an actor … can legitimately act without disclosure and accountability to others” (Etzioni 1999: 12). DeCew and others have criticized this conception of privacy, noting “secret information is often not private (for example, secret military plans) and private matters are not always secret (for example, one’s debts)” (DeCew 1997: 48). Moreover it seems that privacy-as-secrecy accounts cannot accommodate what has come to be called “decisional privacy.” Decisional privacy, within the US context, has been defined as the freedom to make decisions about a range of actions and behaviors, including contraceptive use, abortion, child rearing, and sexual practices. Those who would defend decisional privacy claim that making a decision about abortion, for example, may not be secret and yet still be a matter of privacy. Several authors have defended the view that privacy is a form of intimacy (Fried 1970; Gerstein 1978; Inness 1992; Rosen 2000; Cohen 2002). Jeffrey Rosen writes: “In order to flourish, the intimate relationships on which true knowledge of another person depends need space as well as time: sanctuaries from the gaze of the crowd in which slow mutual self-disclosure is possible” (Rosen 2000: 8). Julie Inness maintains that privacy is “the state of the agent having control over decisions concerning matters that draw their meaning and value from the agent’s love, caring, or liking” (Inness 1992: 91). In critique, Solove (2002) and DeCew (1997) note that financial information may be private but not intimate. Moreover, it is possible to have private relationships without intimacy and to perform private acts that are not intimate. Data mining also may pose a threat to individual privacy without affecting intimate relationships. Control over personal information has also been offered as a definition of privacy (Westin 1967; Gross 1971; Fried 1984). Alan Westin writes, “privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves” (Westin 1967: 7). Gross argues that privacy is “the condition under which there is control over acquaintance with one’s affairs” (Gross 1971: 209). Critics have attacked this conception on grounds that it, like the secrecy view, cannot account for “decisional privacy.” It also fails to acknowledge a physical aspect to privacy – control over access to locations and bodies. Finally, many have noted that whether or not a privacy condition of this sort holds is unimportant – what we want to know is “should individuals have rights to control access?” (DeCew 1997; Moore 2008, 2010). Privacy defined as “limited access to the self ” has been defended by numerous authors, including Sissela Bok (1983), Anita Allen (1988), and Ruth Gavison (1980). Bok writes, “privacy is the condition of being protected from unwanted access by others – either physical access, personal information, or attention” (Bok 1983: 10). The worry here is that if no protection is available or the condition does not obtain it would be odd to conclude that privacy interests were not relevant. Gavison offers LaFollette_P364.indd 5 3/14/2012 11:52:53 AM 6 privacy PR O O F a different account of limited access. On her view limited access consists of “secrecy, anonymity, and solitude” (Gavison 1980: 433). Solove notes: “Although Gavison contends that ‘the collection, storage, and computerization of information’ falls within her conception, these activities often do not reveal secrets, destroy anonymity, or thwart solitude” (Solove 2002: 1105). If so, such conceptions of privacy may be too narrow. Finally, many view privacy as a cluster concept that contains several of the dimensions noted above. Judith Wagner DeCew (1997) has proposed that privacy is a concept ranging over information, access, and expressions. Daniel Solove (2002) has offered a context-dependent approach for defining privacy – for example, in the context of information we may focus on certain dimensions of privacy that will not be as important in different contexts like spatial control. Building on restricted-access views and control-based accounts, Moore (2003, 2008, 2010) has argued that privacy is the right to control access to and uses of personal information and spatial locations. D The Moral Value of Privacy U N C O R R EC TE Many privacy theorists argue that privacy is morally valuable because it is associated, in some central way, with autonomy and respect for persons (Benn 1971; Rachels 1975; Reiman 1976; Kupfer 1987; Inness 1992; Rössler 2005) (see autonomy). Stanley Benn writes: “Respect for someone as a person, as a chooser, implies respect for him as one engaged on a kind of self-creative enterprise, which could be disrupted, distorted, or frustrated even by so limited an intrusion as watching” (Benn 1971: 26). Rachels (1975) argued that privacy is morally valuable because it allows individuals to control the patterns of behavior necessary for stable and meaningful relationships. Joseph Kupfer argues that “privacy is essential to the development and maintenance of an autonomous self ” (Kupfer 1987: 82). Rössler maintains that privacy is a necessary condition for individual autonomy (Rössler 2005: 42–76). According to these theorists, privacy is morally valuable because it protects and promotes the sovereign and autonomous actions of individuals – since autonomy is morally valuable, privacy must be as well. Allen Westin (1967) argued that the ability to regulate access was essential for the proper functioning of animals. Building on Westin’s account of separation, Moore (2003, 2008, 2010) has argued that privacy is necessary for human well-being or flourishing. Moore notes that “while privacy may be a cultural universal necessary for the proper functioning of human beings, its form − the actual rules of association and disengagement − is culturally dependent. The kinds of privacy rules found in different cultures will be dependent on a host of variables including climate, religion, technological advancement, and political arrangements” (Moore 2010: 55). Moore argues the forms of privacy are culturally relational while the need is an objective necessity. General Critiques of Privacy The discussion of privacy, including the definitions and history presented above, must also include views which challenge the authenticity, legitimacy, and necessity LaFollette_P364.indd 6 3/14/2012 11:52:53 AM pri vacy 7 of privacy (DeCew 2006). While not exhaustive, presented below are some of the most forceful critiques of privacy that dominate the literature. Reductionism U N C O R R EC TE D PR O O F Reductionists argue that privacy is derived from other rights such as life, liberty, and property rights – there is no overarching concept of privacy but rather several distinct core notions that have been lumped together (Davis 1959; Thomson 1975; Peikoff 2004). The nonreductionist views privacy as related to, but distinct from, other rights or concepts. Viewing privacy in reductionist fashion might mean jettisoning the idea altogether and focusing on more fundamental concepts. For example, Frederick Davis has argued that “invasion of privacy is, in reality, a complex of more fundamental wrongs. Similarly, the individual’s interest in privacy itself, however real, is derivative and a state better vouchsafed by protecting more immediate rights” (Davis 1959: 20). Judith Jarvis Thomson agreed, claiming “the right to privacy is itself a cluster of rights, and that it is not a distinct cluster of rights but itself intersects with … the cluster of rights which owning property consists in” (Thomson 1975: 306). The simpler avenue, according to Thomson, is to focus on this cluster of rights which are more basic or fundamental than the “derivative” right of privacy. To illustrate the reductionist view, consider Thomson’s case of a pornographic picture. Hugh owns a pornographic picture and keeps it locked in his wall safe – so that no one can see it or even know that he owns it. Larry wants to see the picture and trains his x-ray device on the wall safe to look in. Thomson argues that Hugh’s property right to the picture includes the right that others not look at it and thus, in this case, privacy rights are a kind of property right. Other rights, like the right not to be listened to or touched, fall under what Thomson calls the “rights over the person” which she claims are analogous to property rights as well. In this way, Thomson claims that privacy is nothing more than the cluster of rights over the person and property rights. Several privacy theorists have offered arguments against this sort of reductionism (Scanlon 1975; Parent 1983; Inness 1992; DeCew 1997; Moore 2010). Scanlon argues that the wrongness in cases where Hugh does not own the picture in question and Larry uses an x-ray device to look, does not depend on property rights. Moreover, Parent noted that even if correct, all that Thomson shows is that it is unclear if privacy is reducible to more “basic” rights or the other way around. Perhaps we should view privacy as more fundamental than property or rights over the person. The “other values” critique Anita Allen (2003, 2008), Ferdinand Schoeman (1992), Amitai Etzioni (1999), and others have argued that privacy is less important, in many circumstances, than accountability, security, or community rights. The problem with our heightened sensitivity to privacy violations is that we forget that other, more important, values are lost or minimized. Anita Allen (2003) has argued that accountability toward one’s family, race, and society justifiably limits the domain of individual privacy. LaFollette_P364.indd 7 3/14/2012 11:52:53 AM 8 privacy PR O O F Allen also argued that “spying is useful for protecting children or others in our care who cannot protect themselves; protecting ourselves from wrongdoers; protecting the company and the investing public; and protecting the nation” (Allen 2008: 19). Amitai Etzioni (1999) noted that in our society privacy has been treated as the highest privileged value to the detriment of other common goods such as public safety and public health. Etzioni views privacy as a “societal license” that exempts certain conduct from public scrutiny. Helena Gail Rubinstein writes:“communitarians reject the primacy of the individual, and invite members of the community to move beyond self-interest in favor of a vision of society defined by community ties and a search for the communal good … individuals should not assert their ‘right to be let alone’ when it is time to contribute to the collective good” (Rubinstein 1999: 228). Communitarians like Etzioni and Rubinstein seek to find a balance between individual rights and social responsibilities (see communitarianism). Posner’s critique R R EC TE D Richard Posner (1981) has argued that the value of privacy, in an economic sense, determines how privacy ought to be applied in specific instances. In some cases privacy should be passed over in favor of economic gains to society. His stance places a high value on privacy in business dealings since this privacy has potential for greater impact on the economy. Personal information, on the other hand, does not deserve the same privacy protection because persons, as opposed to businesses, will tend to increase personal wealth over the growth of societal wealth. Privacy in personal information, according to Posner, is typically used to mislead or manipulate others. Posner writes: “the individual’s right to privacy … the right to control the flow of information about him … [may include] information concerning … criminal activity, or moral conduct at variance with the individual’s professed moral standards” (Posner 1981: 233). Posner concludes that it is not clear why society should protect privacy of this sort. C O Data mining, surveillance, and transparency – privacy is dead U N In contrast to the communitarian claim that privacy interests have become too prominent, numerous scholars have announced the death of privacy. The critique offered is not so much a normative one but rather descriptive – privacy is no longer relevant in the age of transparency. The “stark reality,” Richard Spinello writes, is “that our personal privacy may gradually be coming to an end” (Spinello 1997: 9). David Brin (1998), Charles Sykes (1999), Jeffrey Rosen (2000), and others have proclaimed that privacy is under siege. Implicated in the assault is the growth of information technology and ubiquitous computing (see privacy and the internet). The feminist critique A number of feminist scholars have critiqued privacy, noting that it often shields domination, abuse, and violation – privacy protects the hierarchical power LaFollette_P364.indd 8 3/14/2012 11:52:53 AM pri vacy 9 relationships that subject women to subordination by men (see feminism). Behind the walls of privacy these power relationships remain hidden and thus perpetuate inequality. Catharine MacKinnon writes: O F For women the measure of the intimacy has been the measure of the oppression.… This is why feminism has seen the personal as the political. The private is public for those for whom the personal is political. In this sense, for women there is no private, either normatively or empirically. Feminism confronts the fact that women have no privacy to lose or to guarantee. (MacKinnon 2002: 191) EC TE D PR O Mackinnon also noted that by putting the right to abortion under the category of privacy, abortion ceased to be understood as a women’s issue. Deborah Rhode (1989) has argued that legal and moral conceptions of privacy support the “separate spheres ideology” which has placed women in the unseen and unheard domain of the private. Other feminists such as Carol Gilligan (1982) have maintained that notions of privacy embrace the traditional male view of humans as independent autonomous moral agents operating in a marketplace of rights. Other feminists such as Anita Allen (1988), Jean Bethke Elshtain (1981), and Judith Wagner DeCew (1997) argue that rejecting privacy rights, and more generally the private–public distinction, may afford those in dominate positions more power over women. DeCew writes: “focus on domestic violence ignores state-sponsored expressions of control over women” (DeCew 1997: 88). Conclusion N C O R R While privacy is difficult to define and has been challenged on moral, legal, and social grounds, it has played an important role in the formation and maintenance of Western liberal democracies. It is also true that rituals of coming together and leave-taking have been found in every culture systematically studied (Westin 1967). The question “what do we owe each other” in terms of information sharing and access is no more important now than it was a century ago – whatever the form or practice, individuals of all cultures desire privacy. What has changed is our technological ability to intrude on the “sacred precincts of private and domestic life” (Warren and Brandeis 1890: 194). U SEE ALSO: aristotle; autonomy; communitarianism; confucius; deontology; doing and allowing; feminism; locke, john; mill, john stuart; normativity; plato; privacy and the internet; utilitarianism REFERENCES Allen, A. L. 1988. Uneasy Access: Privacy for Women in a Free Society. Lanham: Rowman & Littlefield. Allen, A. L. 2003. Why Privacy Isn’t Everything: Feminist Reflections on Personal Responsibility. Lanham: Rowman & Littlefield. LaFollette_P364.indd 9 3/14/2012 11:52:53 AM 10 pri vacy U N C O R R EC TE D PR O O F Allen, A. L. 2008. “The Virtuous Spy: Privacy as an Ethical Limit,” The Monist, vol. 91, pp. 3–22. Ariès, P., and G. Duby (eds.) 1988–91. A History of Private Life, 4 vols. Cambridge, MA: Harvard University Press. Aristotle 1984. Nicomachean Ethics, in The Complete Works of Aristotle, ed. J. Barns. Princeton: Princeton University Press. Benn, S. I. 1971. “Privacy, Freedom, and Respect for Persons,” in R. Pennock and J. Chapman (eds.), Privacy Nomos XIII. New York: Atherton, pp. 1–26. Bloustein, E. 1964. “Privacy and an Aspect of Human Dignity: An Answer to Dean Prosser,” New York University Law Review, vol. 39, pp. 962–1007. Bok, S. 1983. Secrets: On the Ethics of Concealment and Revelation. New York: Pantheon. Brin, D. 1998. The Transparent Society: Will Technology Force Us To Choose Between Privacy And Freedom? Reading, MA: Addison-Wesley. Cohen, J. 2002. Regulating Intimacy: A New Legal Paradigm. Princeton: Princeton University Press. Davis, F. 1959. “What Do We Mean by ‘Right to Privacy’?” South Dakota Law Review, vol. 4, pp. 1–24. DeCew, J. W. 1997. In Pursuit of Privacy: Law, Ethics, and the Rise of Technology. Ithaca: Cornell University Press. DeCew, J. W. 2006. “Privacy,” Stanford Encyclopedia of Philosophy. At http://plato.stanford. edu/entries/privacy/. Elshtain, J. B. 1981. Public Man, Private Woman: Women in Social and Political Thought. Princeton: Princeton University Press. Etzioni, A. 1999. The Limits of Privacy. New York: Basic Books. Fried, C. 1970. An Anatomy of Values. Cambridge, MA: Harvard University Press. Fried, C. 1984. “Privacy [A Moral Analysis],” in F. Schoeman (ed.), Philosophical Dimensions of Privacy. Cambridge: Cambridge University Press, pp. 203–21. Gavison, R. 1980. “Privacy and the Limits of Law,” Yale Law Journal, vol. 89, pp. 421–71. Gerstein, R. 1978. “Intimacy and Privacy,” Ethics, vol. 89, pp. 76–81. Gilligan, C. 1982. In a Different Voice: Psychological Theory and Women’s Development. Cambridge, MA: Harvard University Press. Gross, H. 1971. “Privacy and Autonomy,” in R. Pennock and J. Chapman (eds.), Privacy Nomos XIII. New York: Atherton, pp. 169–81. Inness, J. 1992. Privacy, Intimacy, and Isolation. Oxford: Oxford University Press. Kupfer, J. 1987. “Privacy, Autonomy, and Self-Concept,” American Philosophical Quarterly, vol. 24, pp. 81–9. Locke, J. 1980 [1690]. The Second Treatise of Government, ed. C. B. Macpherson. Indianapolis: Hackett. MacKinnon, C. 2002. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press. Mill, J. S. 1978 [1859]. On Liberty, ed. E. Rapaport. Indianapolis: Hackett. Mill, J. S. 2001 [1861]. Utilitarianism, ed. G. Sher. Indianapolis: Hackett. Moore, A. D. 2003. “Privacy: Its Meaning and Value,” American Philosophical Quarterly, vol. 40, pp. 215–27. Moore, A. D. (ed.) 2005. Information Ethics: Privacy, Property, and Power. Seattle: University of Washington Press. Moore, A. D. 2007. “Privacy,” with Randal Kemp. Library Hi Tech: Special Issue on Information Ethics, vol. 25, pp. 58–78. LaFollette_P364.indd 10 3/14/2012 11:52:53 AM pri vacy 11 C O R R EC TE D PR O O F Moore, A. D. 2008. “Defining Privacy,” Journal of Social Philosophy, vol. 39, pp. 411–28. Moore, A. D. 2010. Privacy Rights: Moral and Legal Foundations. University Park: Pennsylvania State University Press. Moore, B., Jr. 1984. Privacy: Studies in Social and Cultural History. New York: M. E. Sharpe. O’Brien, D. M. 1979. Privacy, Law, and Public Policy. New York: Praeger. Parent, W. A. 1983. “Privacy, Morality, and the Law,” Philosophy and Public Affairs, vol. 12, pp. 269–88. Peikoff, A. 2004. “No Corn on this Cob: Why Reductionists Should Be All Ears for Pavesich,” Brandeis Law Journal, vol. 42, pp. 751–92. Plato 1892. Collected Works of Plato, trans. Benjamin Jowett. New York: Random House. Posner, R. 1981. The Economics of Justice. Cambridge, MA: Harvard University Press. Rachels, J. 1975. “Why Privacy is Important,” Philosophy and Public Affairs, vol. 4, pp. 323–33. Reiman, J. 1976. “Privacy, Intimacy, and Personhood,” Philosophy and Public Affairs, vol. 6, pp. 26–44. Rhode, D. 1989. Justice and Gender: Sex Discrimination and the Law. Cambridge, MA: Harvard University Press. Rosen, J. 2000. The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House. Rössler, B. 2005. The Value of Privacy, trans. Rupert D. V. Glasgow. Cambridge: Polity. Rubinstein, H. G. 1999. “If I am Only for Myself, What am I? A Communitarian Look at the Privacy Stalemate,” American Journal of Law and Medicine, vol. 25, pp. 203–31. Scanlon, T. 1975. “Thomson on Privacy,” Philosophy and Public Affairs, vol. 4, no. 4, pp. 315–22. Schoeman, F. 1992. Privacy and Social Freedom. New York: Cambridge University Press. Solove, D. J. 2002. “Conceptualizing Privacy,” California Law Review, vol. 90, pp. 1088–155. Spinello, R. 1997. “The End of Privacy,” America, vol. 176, pp. 9–13. Sykes, C. 1999. The End of Privacy. New York: St. Martin’s Press. Thomson, J. J. 1975. “The Right to Privacy,” Philosophy and Public Affairs, vol. 4, pp. 295–314. Tzu, Han Fei (1964). Basic Writings, trans. B. Watson. New York: Columbia University Press. Warren, S., and L. Brandeis 1890. “The Right to Privacy,” Harvard Law Review, vol. 4, pp. 193–220. Westin, A. 1967. Privacy and Freedom. New York: Atheneum. FURTHER READINGS U N Bloustein, E. 1978. Individual and Group Privacy. New Brunswick, NJ: Transaction Books. Freund, P. A. 1971. “Privacy: One Concept or Many?” in R. Pennock and J. Chapman (eds.), Privacy Nomos XIII. New York: Atherton, pp. 182–98. Frey, R. G. 2000. “Privacy, Control, and Talk of Rights,” Social Philosophy and Policy, vol. 17, pp. 45–67. Griffin, J. 2007. “The Human Right to Privacy,” San Diego Law Review, vol. 44, pp. 697–721. Lessig, L. 2002. “Privacy as Property,” Social Research, vol. 69, pp. 247–69. Miller, F., E. Paul, and J. Paul (eds.) 2000. The Right to Privacy. Cambridge: Cambridge University Press. Moore, A. D. 1998. “Intangible Property: Privacy, Power, and Information Control,” American Philosophical Quarterly, vol. 35, pp. 365–78. Moore, A. D. 2010. “Privacy, Public Health, and Controlling Medical Information,” Health Care Ethics Committee (HEC Forum), vol. 23, pp. 225–40. LaFollette_P364.indd 11 3/14/2012 11:52:53 AM 12 pri vacy U N C O R R EC TE D PR O O F Nissenbaum, H. 1998. “Protecting Privacy in an Information Age: The Problem of Privacy in Public,” Law and Philosophy, vol. 17, pp. 559–96. Pennock, J. R., and J. Chapman (eds.) 1971. Privacy: Nomos XIII. New York: Atherton. Rössler, B. (ed.) 2004. Privacies: Philosophical Evaluations. Stanford: Stanford University Press. Rubenfeld, J. 1989. “The Right of Privacy,” Harvard Law Review, vol. 102, pp. 737–84. Rule, J. 2007. Privacy in Peril: How We Are Sacrificing a Fundamental Right for Security and Convenience. Oxford: Oxford University Press. Schoeman, F. (ed.) 1984. Philosophical Dimensions of Privacy: An Anthology. Cambridge: Cambridge University Press. Schwartz, B. 1968. “The Social Psychology of Privacy,” American Journal of Sociology, vol. 73, pp. 741–52. Solove, D. 2004. The Digital Person: Technology and Privacy in the Information Age. New York: New York University Press. Taylor, J. S. 2002. “Privacy and Autonomy: A Reappraisal, Southern Journal of Philosophy, vol. 40, pp. 587–604. Taylor, J. S. 2005. “In Praise of Big Brother: Why We Should Learn to Stop Worrying and Love Government Surveillance,” Public Affairs Quarterly, vol. 19, pp. 227–46. Whitman, J. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty,” Yale Law Journal, vol. 113, pp. 1151–221. LaFollette_P364.indd 12 View publication stats 3/14/2012 11:52:53 AM EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY: EVALUATIVE SURVEILLANCE V PRIVACY Adam D. Moore Abstract. In this article I address the tension between evaluative surveillance and privacy against the backdrop ofthe current explosion of information technology. More specifically, and after a brief analysis of privacy rights, I argue that knowledge of the different kinds of surveillance used at any given company should be made explicit to the employees. Moreover, there will be certain kinds of evaluativ monitoring that violate privacy rights and should not be used in most cases. Too many employers practice a credo of "In God we tr Marlene Piturro, "Electronic Mon Introduction Few wouldand deny thetechnology profound are impact, positive negative, tha computers digital havingboth in the modernand workplace. Some ofthe benefits include safer working conditions, increased productivity, and better communication between employees, clients, and companies. The downside of this revolution can be tedious working conditions and the loss of privacy and autonomy. In the workplace there is a basic tension between surveillance technology and privacy. Companies want to monitor employees and reward effort, intelligence, productivity, and success while eliminating laziness, stupidity, theft, and failure. The market demands no less of most businesses. But against this pressure stands the individual within the walls of privacy?walls that protect against invasions into private domains. Jeremy Bentham once envisioned a prison workhouse that placed overseers in a central tower with glass-walled cells and mirrors placed so that inmates could never know if they were being watched.2 The idea was that "universal transparency" would keep the prisoners on their best behavior. Recent develop? ments in surveillance technology are promising to turn the workplace into the modern equivalent of Bentham's workhouse. There are now computer programs that allow employers to monitor and record the number of keystrokes per minute an employee completes. Employee badges may allow the recording of move? ments and time spent at different locations while working. There is now the possibility of monitoring voice mail, e-mail, and phone logs?all without the ?2000. Business Ethics Quarterly, Volume 10, Issue 3. ISSN 1052-150X. pp. 697-709 This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 698 BUSINESS ETHICS QUARTERLY knowledge or consent of those being watched. There are ev systems that allow companies to track employee movement employers have always sought to monitor employees it is a digital technology has changed the game, so to speak. W networked world, when this kind of surveillance technol monitor all of us? And not by just governments, although mare will be possible, but by our employers. In this article I will address the tension between evaluative surveillance and privacy against the backdrop of the current explosion of information tech ogy. More specifically, and after a brief analysis and justification of priv rights, I will argue that knowledge of the different kinds of surveillance u any given company should be made explicit to the employees. Moreover, t will be certain kinds of evaluative monitoring that violate privacy rights should not be used in most cases. As we shall see, certain jobs may warran smaller domain of privacy. We should not conclude, however, that the argum used in these cases are easily generalized. Privacy Privacy may be understood as that state where others do not have access to you or to information about you.3 I hasten to note that there are degrees of pri? vacy. There are our own private thoughts that are never disclosed to anyone, as well as information we share with loved ones. Furthermore, there is information that we share with mere acquaintances and the general public. These privacy relations with others can be pictured "in terms of a series of 'zones' or 'regions' . . . leading to a 'core self.'"4 Thus, secrets shared with a loved one can still be considered private, even though they have been disclosed. In an important article dealing with privacy, morality, and the law, William Parent offers the following definition of privacy. Privacy is the condition of not having undocumented personal knowledge about one possessed by others. A person's privacy is diminished exactly to the degree that others possess this kind of knowledge about him. Documented information is information that is found in the public record or is publicly available (e.g. information found in newspapers, court proceedings, and other official documents open to public inspection).5 The problem with this definition is that it leaves the notion of privacy dependent upon what a soeiety or culture takes as documentation and what information is available via the public record. Parent acts as if undocumented information is private while documented information is not, and this is the end of the matter. But surely the secret shared between lovers is private in one sense and not in another. To take another case, consider someone walking in a public park. There is almost no limit to the kinds of information that can be acquired from this public display. One's image, height, weight, eye color, approximate age, and general physical abilities are all readily available. Moreover, biological matter This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 699 will also be left in the public domain?strands of hair and the like behind. Since this matter, and the information contained within, available it would seem that all of one's genetic profile is not private Furthermore, what is publicly available information is dependent nology. Telescopes, listening devices, heat imaging sensors, and th up what most would consider private domains for public consumpti are worried about is what should be considered a "private affair"? that is no one else's business. Parent's conception of privacy is not these concerns. A right to privacy can be understood as a right to control access to oneself. is a right to limit public access to the "core self?and this includes person information that one never discloses?and to information that one discloses onl to family and friends. For example, suppose that I wear a glove because I am ashamed of a scar on my hand. If you were to snatch the glove away you woul not only be violating my right to property?alas, the glove is mine to contro you would also violate my right to privacy; a right to restrict access to information about the scar on my hand. Similarly, if you were to focus your x-ray camera o my hand, take a picture ofthe scar through the glove, and then publish the ph tograph widely, you would violate a right to privacy.6 Having said something about what a right to privacy is we may ask how such rights are justified. A promising line of argument combines notions of autonom and respect for persons. A central and guiding principle of Western liberal democracies is that individuals, within certain limits, may set and pursue their ow life goals and projects. Rights to privacy erect a moral boundary that allows individuals the moral space to order their lives as they see fit.7 Privacy protect us from the prying eyes and ears of governments, corporations, and neighbor Within the walls of privacy we may experiment with new ways of living tha may not be accepted by the majority. Privacy, autonomy, and sovereignty, it would seem, come bundled together. A second but related line of argument rests on the claim that privacy right stand as a bulwark against governmental oppression and totalitarian regimes. If individuals have rights to control personal information and to limit access to themselves, within certain constraints, then the kinds of oppression that we ha witnessed in the twentieth century would be near impossible. Put another way, oppressive regimes are to consolidate and maintain power, then privacy right (broadly defined) must be eliminated or severely restricted. If correct, privacy rights would be a core value that limits the forces of oppression.8 Arguably any plausible account of human well-being or flourishing will hav as a component a strong right to privacy. Controlling who has access to ourselves is an essential part of being a happy and free person. This may be why "peeping Toms" and rapists are held up as moral monsters?they cross a bound ary that should never be crossed without consent. Surely each of us has the right to control our own thoughts, hopes, feeling and plans, as well as a right to restrict access to information about our lives, This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 700 BUSINESS ETHICS QUARTERLY family, and friends. I would argue that what grounds these to privacy. While complete control of all our personal informa for many of us, simply because the information is alread likely cannot or will not be destroyed, this does not detr personal information ownership. Through our daily activ and leave digital footprints that others may follow and ex these things does not obviously sanction the gathering an sure of such information by others. Whatever kind of information we are considering there that individuals have control over. For example, in purch filling out the car loan application, no one would deny we e demand that such information not be sold to other compan this is true for any disclosed personal information whethe tionnaire information, video rental records, voting inform applications. In agreeing with this view, one first has to have the right to control their own personal information ments about controlling information presuppose that one right to control this information. If I am correct about all of this, then there is a fairly st favor of individual privacy rights?even in the workplace. tographer taking pictures of me about the house is my con that absent such consent a serious violation of privacy wo Consent is also necessary, I will argue, for employee mon lies the problem. Under what conditions does consent or appropriate sort of permission. Alas, the initial bargaining if we are to be morally bound by the outcome. Privacy in the Workplace We are now in a position to consider an individual's rig context of a working environment where evaluative surve sary and desirable. If pay increases, promotion, profit incentive pay are to be based on effort, desert, and succe ceptable methods of monitoring employees. Consider the following case. In January 1990, Alana Shoars, the electronic mail system at Epson America Inc, discovered th monitoring the e-mail messages of its employees. She was show outs of employee e-mail messages?messages that she thought w the use of passwords. "I glanced over at some of the printouts, bells went off in my head. As far as Fd known, as e-mail c possible to do such a thing."9 Upon criticizing this breach of e Shoars was dismissed from the company for insubordination.1 This case represents only the tip of the iceberg with re monitoring. A survey of companies in Macworld concerning el This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 701 "reported that 21.6 percent of the 301 participating companies adm ing employee files, including electronic work files (73.8 percent), percent), network messages (27.7 percent) and voice mail (15.4 perce even more alarming, only 30.8 percent ofthe companies surveyed warning ofthe monitoring activities.12 In the most general terms, the case of Alana Shoars and e-mail highlights the tension between rights to control information and in vacy in the workplace. What was objectionable with Epson America' was not their wish to control the information that was found on t computer network. The objection is that their employees were not n monitoring or the strict company policy forbidding personal use of Epson argued that the system was company-owned and therefore mation found in e-mail accounts, private or otherwise, was justifiab for inspection. Moreover, it could be argued that notification of s was both unnecessary and unwise from a corporate perspective. If e of monitoring was known to an employee, then the data collected most worthless. It would be like telling the fakes to start faking. Thin Consent Justifying employee monitoring in light of privacy rights begins with what I call thin consent. A first step in justifying a kind of monitoring is employee notification. The consent takes the following form: if your employment is to continue then you must agree to such-and-so kinds of surveillance. This is appropriately called "thin consent" because it is assumed that jobs are hard to find, the employee in question needs the job, etc. Nevertheless, quitting is a viable option. The force of such agreements or contracts is echoed by Ronald Dworkin. If a group contracted in advance that disputes amongst them would be settled in a particular way, the fact of that contract would be a powerful argument that such disputes should be settled in that way when they do arise. The contract would be an argument in itself, independent of the force of the reasons that might have led different people to enter the contract. Ordinarily, for example, each of the parties supposes that a contract he signs is in his own interest; but if someone has made a mistake in calculating his self-interest, the fact that he did contract is a strong reason for the fairness of holding him nevertheless to the bargain.13 An employee cannot consent, even thinly, to a type of monitoring if it is unknown to her. Given a fairly strong presumption in favor of privacy, thin con? sent would seem obligatory. Here the employee would be notified of each different type of monitoring. Individual acts of surveillance, however, would not require notification?thus slackers would not be notified to stop slacking. Moreover, a thin consent policy for each different type of surveillance allows companies and businesses to seize the moral high ground in one important re? spect. There is no sneaking around riffling through office files, midnight program installations, or hidden backdoor keys into e-mail accounts. All of this up front This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 702 BUSINESS ETHICS QUARTERLY and in the open. Part of what makes this kind of employee mo is the deceit involved. Locked voice-mail accounts, e-mail ers present the air of privacy when these domains are anyt In any case it should be clear that thin consent is not e array of monitoring systems that are now possible or will in every case. When jobs are scarce, unemployment high, a tance programs swamped, thin consent becomes thin indee employees will be virtually forced to relinquish privacy b consequences if they don't. But notice what happens when extreme. Assume a condition of negative unemployment w more jobs than employees and where changing jobs is relat stances such as these, thin consent has become quite thick were to agree to a certain type of monitoring in these favo would think it justified. As we slide from one extreme to the other?from a pro-b (lots of workers and few jobs yields low wage overhea environment (lots of jobs and few workers yields high em this method of justification becomes more plausible. What necessary condition ends up looking like a sufficient cond the exact point where thin consent becomes thick enough tory burden required is a difficult matter. The promise of on the circumstances. Minimally, if the conditions favor th plausible to maintain that actual consent would be enough sumption in favor of privacy. Hypothetical Thick Consent As noted above, thick consent is possible when employm mize the costs of finding a comparable job for an employee employee who doesn't have to work, but agrees to anyway kind of consent?assuming of course they have been notif types of monitoring that will occur. What justifies a certai is that it would be agreeable to a worker in a pro-employee consent is obtained and the test of hypothetical thick con have reason to think that a strong presumption in favor of tifiably surpassed. We will also have to assume that the hypothetical worke is modestly interested in maintaining control over private constructed individual has nothing to hide and a general then any type of surveillance will pass the test. And if I importance of privacy with respect to sovereignty and aut be interested in retaining such control. Rawls's notion of behind a veil of ignorance may be of some service here.14 I ing did not know whether she was a worker, manager, or o This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 703 that anyone would be interested in retaining control over private d the correct vantage point for determining binding agreements wi attained. The force of hypothetical contracts has been called into question by Dworkin and others?"A hypothetical contract is not simply a pale form of an actual con? tract; it is no contract at all."15 Here I agree with Dworkin. The moral bindingness of hypothetical contracts has to do with the reasons for why we would choose to do this or that. Viewing it this way, hypothetical contracts are simply devices that enable us to more clearly understand the reasons, moral or otherwise, for adopting a particular institution or process. Dworkin notes, There must be reasons, of course, why I would have agreed if asked in advance, and these may also be reasons why it is fair to enforce these rules against me even if I have not agreed. But my hypothetical consent does not count as a reason, independent of these other reasons, for enforcing the rules against me, as my actual agreement would have.16 Thus the test of hypothetical thick consent can be understood as a way of clarifying, and allowing us to arrive at, a position that is fair and sensible. Hereafter, when I talk of hypothetical consent and the moral force of such agreements, be aware that this is simply a tool or device that is notifying us when privacy rights may be justifiably relaxed. Taking up the Epson case again, we may ask if a policy of e-mail monitoring would satisfy the test of hypothetical thick consent. Here we are to imagine a world where there were numerous jobs like the ones found at Epson and that moving to these other jobs would be relatively easy. Moreover, given that there is no industry-wide interest in monitoring e-mail activity many of these other positions would not include e-mail monitoring. If an employee would not agree under these conditions, then this type of surveillance would fail the test. Had Epson notified its employees of a company e-mail monitoring policy, then those employees who stayed on at Epson would have given thin consent. But we should not rush to judge that such a policy would be automatically justified unless the test of hypothetical thick consent is also met. Meeting this latter test in the Epson case seems unlikely. I take a virtue of hypothetical thick consent to be that satisfaction is deter? mined by imagining a pro-employee situation and then asking what an employee would do in the face of some kind of surveillance. Some may charge that I am stacking the deck, however. Why not imagine a pro-business situation and then ask what an employee would do. We wouldn't have to do much imagining though, and employee consent in such conditions wouldn't justify anything. Moreover, if I am correct in positing privacy rights for each of us, then the deck is already stacked. There is a presumption in favor of individuals having control over per? sonal information?we have privacy rights. Since employee surveillance may cross into private domains, we must consider under what conditions a privacy right may be given up or relaxed. In relatively few cases is thin consent thick This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 704 BUSINESS ETHICS QUARTERLY enough to handle the justificatory burden. Hence, the use consent. We are imagining a case where the bargaining sit ployee?and if agreement is offered in these conditions, t think that the type of surveillance in question is warrant I hasten to note that even in a pro-employee environm certain kinds of employee monitoring that would be nece Punching a time clock or measuring time spent working occur in almost any business or company. Even in a pro-e would have to be minimized. It is not as if McDonald's would become so des- perate for workers that they would leave the register drawers open employees to come and go as they please, and continue to pay wages. Th ket demands that businesses make a profit or at least break even. Given there will be certain kinds of employee monitoring that every business w Moreover, there will be employment-specific monitoring as well. For ex trucking companies will have to monitor driving records and ensure that maintain the appropriate skills needed to operate the big rigs. This kind veillance may be required by the market or by legislation of one kind or a There may be laws that require certain licenses that make businesses lia noncompliance. Absent laws or other government regulation, market eff may require certain kinds of monitoring. An example of the latter may ployee time monitoring. The hypothetical or constructed truck driver, no where he goes, will be subject to certain kinds of monitoring. So, even in employee environment certain kinds of surveillance will be justified?tho that are necessary for doing business. So far I have been pursuing a kind of top-down strategy in presenting principles and considering arguments that may be marshaled to suppor principles. If I am correct, thin consent will justify certain kinds of mon when employment conditions favor the employee. Absent such condition ally occurring, we can imagine what an employee would choose if she we pro-employee environment. If she would agree to a type of monitoring fr vantage point?either because every business in her field will monitor in way she is considering or she agrees for some other reason (maybe beca new monitoring policy will benefit her in some way)?then the monitor permitted. In the next section I will pursue a bottom-up strategy by pre certain cases and then examining how the proposed model fits with the and our intuitions about them. Test Cases and Illustrations Let us begin with an easy one first. Suppose that one day an employe approached by his boss and is informed that the company will be moving t new building. Excited about the new digs, the employee tours the recently c structed office and is quite dismayed. It seems that management has been rea Bentham's Panopticon and the site has been built so that employee cubicles This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 705 be monitored by an overseer who can't himself be seen. The video ca in the new office have been placed so that computer screens can b well as facial expressions, body motions, and the like. The employ and asks what conceivable purpose such a system could have at company. Management replies that only someone with something t object and this system of monitoring will allow hard workers to and fairly compensated. We may now ask if such a monitoring system is justified in relat thetical thick consent. I think it is clear that an individual who is interested in protecting privacy and in a pro-employee environment other things being equal, and find similar employment elsewhere. things being equal" exception is important because if management w employee salaries then maybe a deal could be made?no privacy at w of cash.17 Outside of such offers the presumption in favor of privacy r not have been surpassed for this type of surveillance. Before moving on, I would like to briefly address the kinds of were offered for why employees shouldn't oppose this kind of moni that an employee should have nothing to hide is irrelevant. It is he that is being monitored and so it is up to her to deny access. Wheth has something to hide is nobody's business. We all may have perfe bedroom lives and have nothing to hide in this area. Nevertheless, company video camera and wake-up siren on the bedroom wall can least bit be supported by such reasons. Employee benefit is equally, same reasons, dubious. Consider a different case. Suppose in an effort to eliminate "tim company begins using "active badges" that monitor employee move at work. These badges are sophisticated enough to monitor time spe cific area. So, employees who linger in the break room, arrive late, and stroll the halls, will be discovered and treated accordingly. Few would deny that time monitoring is a necessary part of an Nevertheless, there will be more and less invasive ways to mo Bentham's Panopticon with a time overseer is one of the more inv ods. Given that there are various less invasive ways to obtain this about employees, it would seem that a constructed individual interes taining private domains would not agree to this type of surveillan most companies such a policy would be unjustified. There may be however. For example the U.S. Pentagon, Arms R&D departments, a may have to maintain this level of monitoring to ensure secrecy.18 college professors in this way is clearly unjustifiable. A final case that I would like to discuss deals with remote comput ing. The case is provided by John Whalen. A recent ad for Norton-Lambert's Close-Up/LAN software package tem managers to "look in on Sue's computer screen.... Sue doesn't even k This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 706 BUSINESS ETHICS QUARTERLY you're there!" . . . these "remote monitoring" capabilities . work administrators to peek at an employee's screen in real files and e-mail at will, tabulate keystroke speed and accur pass words, and even seize control of a remote workstation. Dynamics Corp.'s Peak and Spy; Microcom Inc.'s LANlor Net Ware; and Neon Software's NetMinder not only improv tions and productivity, they turn employees' cubicles into c stations.19 While this kind of employee monitoring may yield some benefits, the preponderance of the evidence would suggest otherwise. Some studies have shown that these monitoring systems produce fear, resentment, and elevate stress levels.20 Another study concluded that "the introduction of computerized performance monitoring may result in a workplace that is less satisfying to many employees ... [and] creates a more competitive environment which may decrease the quality of social relationships."21 Putting aside the unsavory consequences we may ask if such monitoring passes either test under consideration. First the test of thin consent would not be passed if the employees being monitored were not notified of such practices. Given the absence of a clear pro-employee environment in most industries that would use such surveillance, even if employees were notified the consent would seem too thin. Moreover, remote computer monitoring would fail the test of hypothetical thick consent for most companies. Individuals who did not know if they were the owner, manager, or employee would not agree to such privacy invasions. The presumption in favor of privacy would thus remain intact. Conclusion As noted in the opening, high-tech surveillance is promising to turn the m ern workplace into an Orwellian nightmare achieving Bentham's ideal workh for prisoners?"universal transparency." And even if such monitoring someh produced an overall net increase in utility, it would still be unjustifiable. So times the consequences be damned. Not that I think generally good conseque could be had from such surveillance. Arguably, human beings are the most p ductive and creative in conditions completely opposite from those foun Bentham's Panopticon. In this article I have argued that individuals have rights to privacy that sh us from the prying eyes and ears of neighbors, governments, and corporati electronic eyes and ears are no more welcome. If we begin with a fairly stro presumption in favor of privacy and test different types of employee monitorin with thin and hypothetical thick consent, many currently used kinds of surv lance will be unjustified. Arguably this consent is necessary and sufficient overriding or relaxing privacy rights with respect to employee monitoring.22 will each spend at least a quarter of our lives and a large part of our most produc tive years at work. This environment should be constructed to promote crea This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 707 and productive activity while maintaining the zones of privacy that we all ish. Although privacy rights are not absolute, it would seem that in a netw world filled with devices that may be used to capture information about us, we should take privacy invasions?whether at home, on a public street, the workplace?much more seriously. Notes This paper was presented at the APA Pacific Division Meetings (April 5-8,2000). I would like to thank Nancy Snow, Mark VanHook, Bill Kline, and the other session participants for their comments and suggestions. I would also like to thank Kimberly Moore, Scott Rothwell, and an anonymous reviewer at Business Ethics Quarterly for reading and commenting on an earlier draft. Marlene Piturro, "Electronic Monitoring," Information Center, July 1990, p. 31; quoted in Richard Spinello's Ethical Aspects of Information Technology (Englewood Cliffs, N.J.: Prentice Hall, 1995), p. 141. 2J. Bentham, Panopticon (The Inspection House), originally published in 1791. 3A longer version of this section appears in my article "Intangible Property: Privacy, Power, and Information Control," American Philosophical Quarterly 35 (1998): 365-378. I would thank the editors of APQ for allowing me to present this material here. 4Alan Westin, "Privacy in the Modern Democratic State," in Ethical Issues in the Use of Computers, ed. D. Johnson and J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 187. 5W. A. Parent, "Privacy, Morality, and the Law," Philosophy and Public Affairs, Fall 1983, pp. 269-288; reprinted in Ethical Issues in the Use of Computers, ed. D. Johnson and J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 203 (all page citations refer to the reprint). 6Legal scholar William Prosser separated privacy cases into four distinct but related torts. Intrusion: Intruding (physically or otherwise) upon the solitude of another in a highly offensive manner. For example, a woman sick in the hospital with a rare disease refuses a reporter's request for a photograph and interview. The reporter photographs her any way, over her objection. Private facts: Publicizing highly offensive private information about someone that is not of legitimate concern to the public. For example, photographs of an undistinguished and wholly private hardware merchant carrying on an adulterous affair in a hotel room are published in a magazine. False light: Publicizing a highly offensive and false impression of another. For example, a taxi driver's photograph is used to illustrate a newspaper article on cabdrivers who cheat the public when the driver in the photo is not, in fact, a cheat. Appropriation: Using another's name or likeness for some advantage without the other's consent. For example, a photograph of a famous actress is used without her consent to advertise a product. Dean William Prosser, "Privacy," Califomia Law Review 48 (1960): 383, 389, quoted in E. Alderman and C. Kennedy, The Right to Privacy (New York: Alfred A. Knopf, 1995), pp. 155-56. What binds these seemingly disparate cases under the heading "privacy invasions" is that they each concern personal information control. And while there may be other morally This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 708 BUSINESS ETHICS QUARTERLY objectionable facets to these cases?for example the taxi driver cas able on grounds of defamation?there is arguably privacy interest 7Clinton Rossiter puts the point succinctly: Privacy is a special kind of independence, which can be unde tempt to secure autonomy in at least a few personal and spirit necessary in defiance of all the pressures ofthe modern soeiety erect an unbreachable wall of dignity and reserve against the en free man is the .private man, the man who still keeps some of h judgments entirely to himself, who feels no over-riding comp everything of value with others, not even those he loves and tr C. Rossiter, Aspects of Liberty (Ithaca, N.Y.: Cornell University Westin, "Privacy in the Modern Democratic State," p. 188. 8For more about privacy rights see E. Hendricks, T. Hayden, and Privacy (Carbondale: Southern Illinois University Press, 1990); F. formation Age (New York: The Brookings Institution, 1997); B. Gi Handbook (New York: Avon Books, 1997); Charles Fried, "Privacy (1968): 477; A. Westin and M. Baker, Databanks in a Free Soeiety Press, 1972); J. Rachels, "Why Privacy is Important," Philosophy an mer 1975): 323-33; and Paul Weiss, Privacy (Carbondale: Southern 1983). 9IDG Communications, Inc, Infoworld, October 22, 1990; quoted by Anne Wells Branscomb in Who Owns Information? (New York: Basic Books, 1994), p. 92. 10Alana Shoars filed a wrongful termination suit. "The lower court agreed with Epson's lawyer that neither state privacy statutes nor federal statutes address confidentiality of Email in the workplace and dismissed the case." Branscomb, Who Owns Information? p. 93. See Alana Shoars v. Epson America, Inc, No. SWC112749 (L.A. Super. Ct. 1990). "Branscomb, Who Owns Information? p. 93. 12While the courts have ruled that employers cannot monitor their workers' personal calls, the Electronic Communications Privacy Act of 1986 grants bosses a "business-use exception," which allows supervisory and quality-control monitoring. J. Whalen, "You're Not Paranoid: They Really Are Watching You," Wired Magazine, March 1995. See also Briggs v. American Filter Co., 704 F.2d 577 (11th. Cir. 1983), Watkins v. L. M. Berry, 704 F.2d 579 (11th. Cir. 1983), and Hendricks et al., Your Right to Privacy, Part 2. 13Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977); reprinted in Justice: Alternative Political Perspectives, 3rd ed., ed. James Sterba (Belmont, Calif.: Wadsworth, 1999), p. 126 (all page references refer to the reprint). 14J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 136? 142. The hope is that Rawls's veil of ignorance will serve as a device that ensures impartiality. 15Dworkin, Taking Rights Seriously, pp. 126-27. ,6Ibid., p. 127. 17Employment agreements grant rights, powers, liberties, and duties to both parties. Thus an employee may trade privacy for some kind of compensation like time off or the opportu? nity to learn. When tradeoffs such as these have occurred we may take the obligations, generated by the agreement, as prima facie?alas, the agreement may have been brokered in unfair conditions. If I am correct, fairness of conditions and binding agreements that justifiably relax rights are guaranteed when the tests of thin and hypothetical thick consent are passed. 18Even in these cases the different types of surveillance used should be made explicit to every employee. This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY 709 19J. Whalen, "You're Not Paranoid: They Really Are Watching You," Wired Mag March 1995. 20Richard Spinello, Ethical Aspects of Information Technology (Englewood Cliffs, N.J.: Prentice Hall, 1995), p. 128. 21R. H. Irving, C. A. Higgins, and F. R. Safayeni, "Computerized Performance Monitor? ing Systems: Use and Abuse," Communications ofthe ACM, August 1986, p. 800. 22I take consequentialist concerns to be factored into laws or market demands. That is, hypothetical thick consent includes utility maximization arguments for requiring licenses, safety regulations, and the like. This content downloaded from 128.95.104.66 on Sun, 04 Mar 2018 19:41:53 UTC All use subject to http://about.jstor.org/terms 
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