Privacy and the Limits of Law

by Ruth Gavison

Ruth Gavison (born March 28, 1945, Jerusalem) is an Israeli Law professor at the Hebrew University in Jerusalem. She is also a Senior Fellow Emeritus at the Israel Democracy Institute. Her areas of research include Ethnic Conflict, the Protection of Minorities, Human Rights, Political Theory, Judiciary Law, Religion and Politics, and Israel as a Jewish and Democratic State. (contradiction already)

Gavison was nominated for a position on Israel’s Supreme Court in 2005 but failed to secure a majority for the appointment. Justice Minister Daniel Friedmann reportedly asserted in 2007 that existing Supreme Court justices opposed her nomination because of their disagreement with her views.

What the paper is about

There popular demands for increased protection of privacy and an intensified interest in its relation to other values such as liberty, autonomy and mental health.

There has been a variety of legal responses through the Supreme Court and Congress yet many scholars have argued that privacy rhetoric is misleading and have advocated for some form of reductionism.

Yet she and most people consider privacy to be something distinct and coherent.

This coherence must be placed within three distinct contexts:
1. must have a neutral concept of privacy – (identify losses of privacy)
2. Privacy must have coherence and value – (identify invasions of privacy)
3. privacy must be a concept useful in legal contexts – (identify actionable violations of privacy
Identifying privacy as a concern for limited accessibility enables us to identify when losses of privacy occur.

The legal system should make an explicit commitment to privacy as a value that should be considered in reaching legal results.

This yields a better understanding of the appeal and peril of the reductionist approach:
Appeal: privacy is seldom protected in the absence of some other interest
Peril: we might conclude that privacy is not an important value and that losses should not be legally protected

In order to decide which aspects of privacy merit protection we must however begin with a concept, which keeps desirability away from the equation, and privacy as a form of control should also be rejected.

As a methodological starting point, she suggests that an individual enjoys perfect privacy when he is completely inaccessible to others. Of course this is impossible in our society.

Therefore a more important concept is the loss of privacy, which occurs when other obtain information, pay attention to, or gain access to an individual.

For her, those who argue that there is no inherent loss of privacy when information about someone becomes known are wrong.

However since it is hard to put a value on the amount of privacy lost, the notion amount of information lost requires greater theoretical elaboration.

The problems with this amount to three:
1. should we distinguish between different kinds of knowledge about an individual (verbal, sensory etc…)
2. different amounts of knowledge about the same individual
3. the requirement that for a loss of privacy to occur, the information must be about the individual

When there is attention paid to an individual he losses privacy

When others gain physical access to an individual there is a loss of privacy

The concept of privacy involves any of the following three irreducible elements:
Secrecy, anonymity and solitude. These may coexist in the same situation.

Perhaps then the concept of privacy lacks precision and it could be useful in some cases to isolate each of these elements, therefore protecting not privacy but secrecy, anonymity and solitude.

She says privacy can be defined as “being let alone” which is often attributed to Brandeis but it is not his. But this to her lacks the distinctiveness which is necessary.

She gives the example how ‘not letting people alone’ cannot always be described as invasion of privacy, and gives the examples of people having to pay taxes, go to the army or punishing them for murder. (although this might be legal it is still an invasion of privacy from my perspective)

To define the scope of legal protection she then moves beyond the neutral concept to identify those concepts of privacy that are of value. To do this she says it is important to examine its functions.

In regards to contextual arguments about privacy she says that these arguments are instrumental, in that they relate privacy to another goal and are strengthened by the fact that the link is also conceptual.

In regards to freedom and physical access she says that restricting physical access permits an individual to relax.

Privacy also provides freedom from censure and ridicule, promotes mental health, Promotes autonomy, promotes human relations and enhances an individuals dignity by limiting exposure

Privacy is essential to democratic government because it fosters and encourages the moral autonomy of the citizen, central requirement of a democracy.

It can also be argued that respect for privacy will help a society attract talented individuals to public life.

The limits of law I protecting privacy stem from the law’s commitment to interests that sometimes require loss of privacy, such as freedom of expression, interests in research, and the needs of law enforcement.

She argues that law should make an explicit commitment to privacy. To do this it is important to ask what privacy is and to what extent the law protects it.

Of course an attempt to impose coherence on the use of a single concept in judicial decisions is bound to be misleading when such a coherence does not in fact exist.

Privacy, property and reputation are not granted absolute protection by the law, but they merit it she claims.

Although reductionists claim the interest in privacy is modern, in fact it is a human condition from antiquity.

Advances in technology and surveillance have made it difficult to protect privacy. This and all mentioned before is what requires privacy to become a central value not just a convenient label.

Of course this commitment to privacy does not mean that we only worry about privacy above everything else. But we must be aware of the fact that of privacy is invaded today it may be invaded in more serious ways and more permanent ways than ever before.

Finally this commitment to privacy may help raise awareness of its importance. Thus having an educational impact. Although the wish for privacy should be in our heart it must be in our laws as well.