philosophy of law

Master’s Thesis in Applied Ethics
Utrecht University
Supervisor: dr. Stephen Riley
Second examiner: dr. Frans Brom
Submitted 30 – 06 – 2014
Graded a 7.5.

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In this thesis I investigate the moral contents of the concept of privacy, moral contents interpreted broadly as those elements that directly concern value or a moral obligation or right, as well as those that concern the preconditions for a moral framework, and the concept of privacy understood, wherever it cannot be understood in the abstract, as it is used (in all its variety) in contemporary liberal societies.

Firstly I adopt Daniel Solove’s view that the concept of privacy is better understood in terms of family resemblance than in terms of necessary and sufficient conditions, as well as that privacy’s value is instrumental rather than intrinsic. This also leads me to the view that the moral content of privacy does not include moral obligations or rights. The concept of ‘privacy’ has no fixed content, and consequently no normative content in the sense of explicit obligations or rights. The moral content of privacy, I argue, is to be found in the existing moral frameworks that presume it. I investigate two specific moral frameworks, those of German philosopher Immanuel Kant and British philosopher and politician John Stuart Mill. In the first place, I choose specifically these frameworks because Kant and Mill have been, each in their own way, major influences not only on ethical theory, but also on the development of liberalism. Although their ideas of individual liberty and especially its relation to the state were in several respects controversial in their own times, they have been influential on and are still strongly connected to ours, that is. I link their thoughts with the different existing types of privacy (as stipulated by Finn et al.). Discussing their works, I establish two theses about the moral content of the concept of privacy.

The Kantian thesis: insofar privacy violations (as privacy violations) force a will, physically or psychologically, in its operation, and insofar privacy violations (as privacy violations) performed by the state have as a consequence that that state is no longer a means to (or: enables) freedom, Kant’s moral framework provides us with a moral reason to forbid these violations.

The Millian thesis: insofar privacy violations (as privacy violations) harm rather than promote total utility, and insofar privacy violations (as privacy violations) interfere with the sphere of liberties of a person who does not do harm to others, Mill’s moral framework provides us with a moral reason to forbid these violations.

These theses are structured alike, inquiring firstly about the consequences of the privacy violation itself, secondly about the privacy violation being performed legitimately or not, and then, thirdly, establishing whether the literature applies to it. For both frameworks, I argue, the most fruitful path is that of investigating the moral legitimation of state authority, and Kant’s and Mill’s positions can be seen as converging on at least one point, namely that they are able to show that certain specific privacy violations are wrong, not because the acts are wrong in themselves, but because of their context: the violator is the state operating outside of its moral authority.

In chapter four, I show that governments are actually violating all types of privacy (although some on a larger scale than others), and that there is thus a conflict between current practices and the moral frameworks discussed (regardless of the differing arguments underlying those positions). This suggests that certain justifications of privacy violations (like the general motivation of the protection of public health and safety) are not sufficient and should be given more substance. Governments should put more effort in demonstrating why certain privacy violations are needed, and why they weigh up against the interference with individual liberties. A rough sketch of such a proposal would be:

  1.   Assure that privacy violations are happening overtly, i.e. assure that citizens know or can know in general terms what kinds of privacy are violated and why, and do not want to find out afterwards that our governments were operating a massive espionage programme on their own citizens.
  2. Assure that privacy violations for the protection of public health and safety are non-discriminatory, i.e. assure that individuals or groups are targeted because there are strong reasons for seeing them as threats (to public health and safety, to the freedoms of others, etc.), not for any other reason.
  3.   Assure that if privacy is violated, it is done according to public laws.
  4.   Assure that privacy, if it is violated, is violated within the moral authority of the state.

Mind that this is only a rough sketch, and additionally, only concerns privacy violations by states, not by businesses. I hope my findings in this thesis can contribute to shining a light on the moral content of privacy violations by businesses in the future.