Excerpted from Chapter 3: Penumbras from Privacy by Garret Keizer. Reprinted by arrangement with Picador USA’s BIG IDEAS // small books series. Copyright © 2012. All rights reserved. No part of this excerpt may be reproduced or printed without permission in writing from the publisher.
— Montaigne
The first thing we can say by way of defining privacy is that it exists only by choice. In the absence of choice, privacy is merely the privation with which it shares a common linguistic root, just as sex, work, and singing a song become rape, slavery, and humiliation when forced on us against our will. The girl who died a miserable death at the hands of her psychotic parents was not living a private life; she was living in a hell of loneliness. They are not the same thing.
The confusion of privacy and loneliness amounts to the Gordian knot of modern capitalist societies, the big blue bow of alienation on our package of consumer goods. It also bedevils the thinking of capitalism’s less imaginative critics, who mistakenly assume that by eliminating everything private they will eliminate loneliness too. I will have more to say about that as we continue. For now, suffice it to say that privacy is either a choice or a lie.
We make a clear choice for privacy whenever we hang the PRIVACY PLEASE sign on the outside of a hotel room door. In some places it reads DO NOT DISTURB, which in essence means the same thing. We hang out the sign because we are not prepared to leave the room, because we are not prepared to have someone else come into the room, and because, at least until checkout time, we feel some claim to call the room our own. Until a less negotiable checkout time, we feel the same claim on our lives.
All of us share that basic understanding. Even the hotel housekeepers, many of them recent immigrants whose languages do not contain a word exactly equivalent to the English word privacy—because no language does—can understand the sign. They have been taught to know its meaning in the same way as they have been taught to put their backs to the wall when a paying guest walks by.
Whenever I can afford to stay in a hotel, usually when someone else puts me up in one, I make frequent use of that sign. I enjoy working in hotel rooms, which are like offices with the added amenities of a handy toilet and a phone that never rings. I can work in peace. When any further postponement is likely to create anxieties among the staff, I reverse the sign so that it reads service requested. Then I will leave the room. At that point I consider PRIVACY PLEASE addressed to me.
Of course, by leaving the room I put some of my privacy at risk, since there is nothing to prevent the housekeeper from looking through my stuff. But I assume that she has a life and work to do. She is a housekeeper, after all, not a hacker. I also assume that, in this case at least, her need for privacy trumps mine. If I feel it necessary, I can always cover my books and papers, close my laptop, and erase at least a few of the clues as to every single thing I, and my wife if she is with me, have been doing in the room for the past twelve hours. In other words, I can preserve some of our privacy by making the room more publicly presentable to someone else.
This is an aspect of privacy that receives too little attention, I think. Some contend that a concern for privacy betrays a self-centered value system; I would say that it is our conception of privacy that is self-centered. We speak of it entirely in personal terms, as an act of self-preservation, failing to consider that the protection of one’s own privacy is often a gesture of respect to another person’s sensibilities.
This is what the English essayist Charles Lamb apparently had in mind when he wrote “A Bachelor’s Complaint” against the “pure, unrecompensed, unqualified insult” of married couples’ behavior in the company of their single friends. Husbands and wives “perk up” their affections for each other, Lamb writes, “in the faces of us single people so shamelessly.” Lamb desires more “ceremony” in order “to take off the uneasy feeling which we derive from knowing ourselves to be less the object of love… than some other person is.” Inhabitants of a less ceremonious time, we would want to ask old Chuckie what his problem was. We also might find it strange that he is resentful, not of married people’s privacy—of their refusal to be obligingly “transparent”—but of their failure to honor their privacy enough, and him into the bargain. In Lamb’s view, privacy is a social obligation, owing as much to fellow feeling as to self-respect.
In a different culture but a slightly similar vein, Bedouin women traditionally do not veil their faces when they enter Egyptian cities because they consider Egyptians morally inferior to themselves. One might expect a different response— best use the veil because there’s no telling what an Egyptian might get himself up to if he sees a pretty face—but protection is not the point. Bedouin women veil as a gesture of respect to social (usually male) superiors, and Egyptians—like bachelors, in Lamb’s view—don’t count. Bedouin women do not veil for low-status males either. It goes without saying that if Bedouin women of childbearing age counted for more, the protocols of veiling would be moot (as they are for their female elders).
I imagine that most of the scholars and jurists who have written and ruled on privacy get to spend more time in hotels than I do. At least they get to stay in better hotels. Few of them would make the mistake I made on my first book tour of believing I could save my publisher money by contenting myself with what I took to be the complimentary refreshments provided in the room’s minibar. As with the concept of privacy, the basic idea of keeping to a budget was within my grasp, but I had missed some important particulars. This is why we have scholars and jurists.
It turns out that not all of them are comfortable about defining privacy, however. “Is privacy a situation, or a value, or a claim of right?” asks legal scholar Kenneth L. Karst. “Is privacy itself the subject of our moral and legal claims, or is it a code word that always stands for some other interest?” According to Tom Gerety, privacy is “like many legal concepts” in that it is “not so much a philosophical conception as a practical one, more readily identified by its messy precedents than by its tidy definition.”
Still, one hopes for a working definition, and not necessarily one confined to the outlines of a legal concept. A natural place to look is in the contrast between public and private, though that isn’t very tidy either. It is at least readily understandable, in the way that we understand our front yards to be more public and our backyards more private, but a good philosopher or a persistent Jehovah’s Witness can easily blur the boundaries. “No human life, not even the life of a hermit,” writes Hannah Arendt, “is possible without a world which directly or indirectly testifies to the presence of other human beings.” To which we might add that the bustling public world of other human beings stands on the achievements of more than a few hermits.
Public and private are, as one writer calls them, “interdependent chambers of the same heart.” The degradation of privacy increasingly bemoaned in the press and in books such as this one can easily be correlated with a degradation of public life, and vice versa. If you were too busy watching American Idol to notice when the provisions of the USA Patriot Act were extended, you can expect that quite soon someone may be watching you. But we needn’t make the point so grimly. Isn’t part of the pleasure of going to a movie, concert, or play the simultaneous awareness of a private experience coupled with a sense of public communion? I suspect that would not have been possible in the Roman Colosseum, even if one had the good fortune of not being included among the entertainments.
Other attempts at definition by way of contrast juxtapose privacy with secrecy, though this approach can also prove dicey. It has been noted that while privacy is a right, secrecy is not; that while privacy lacks any specific content, secrecy is made up of specifics; that whereas privacy has a generally positive connotation, secrecy implies that “other people may have some claim to the hidden information.” Sociologists have suggested that while privacy is the prerogative of the powerful, secrecy is the resort of the less powerful, including children, who form the concept of a secret by about the age of four. For most of us, though, the notion of privacy includes the option of keeping secrets, even to the grave.
Some scholars focus on one or another salient aspect of privacy. Given a history that begins with a revolution, and a legal tradition informed by the Bill of Rights, American writers understandably emphasize resistance to governmental intrusion, the sense of a line that authority dare not cross.
Even so entitled an authority as a school principal looking for drugs can be called to account, as in Safford Unified School District v. Redding (2009), where the Supreme Court ruled eight to one against the strip search of a wrongfully accused high school student. At the same time, Julie Inness’s seminal book on privacy (Privacy, Intimacy, and Isolation, 1992) emphasizes intimacy as “the common denominator that internally organizes and externally links tort and constitutional privacy law.” In short: “Privacy protects love, care, and liking.” It’s worth a reflective pause to marvel at a value associated with such seemingly disparate elements as intimacy and resistance, though this is perhaps no surprise to anyone who has fought hard and loved well.
Privacy is complex enough to have inspired several cluster definitions. Alan Westin identifies four constituent elements: solitude, intimacy, anonymity, and reserve. Anita Allen speaks of three basic forms: accessibility, seclusion, and anonymity; Judith DeCew, of three basic areas that privacy protects: information, bodily integrity, and expression. In Whalen v. Roe (1977), the Supreme Court identified two kinds of interests in privacy cases: “One is the individual interest in avoiding disclosure of personal matters and another is the interest in independence in making certain kinds of important decisions.” These interests correspond to the informational privacy and decisional privacy sometimes found in discussions of the concept.
Almost two decades before Whalen, in 1960, jurist William L. Prosser attempted to summarize the various privacy cases that had come before U.S. courts up until that time. He identified four types of privacy invasion: “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; public disclosure of embarrassing facts about the plaintiff; publicity which places the plaintiff in a false light in the public eye; and appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” Prosser’s list is worth memorizing; beyond its potential to impress a game show host or a date with a law degree, it can serve as a mental checklist, a kind of “Miranda rights” to be recited whenever we suspect our privacy has been illegally arrested.
Not everyone who addresses privacy is inclined to define it in the abstract. Taking his cue from Prosser and from Ludwig Wittgenstein’s idea of family resemblances, according to which “certain concepts might not have a single common characteristic” but rather “draw from a common pool of similar elements,” legal scholar Daniel Solove suggests that instead of “attempting to locate the common denominator” of those activities threatened by the loss of privacy, “we should conceptualize privacy by focusing on the specific types of disruption.” These types include technological disruptions that did not exist when Prosser formulated his list.
Though Solove’s approach strikes me as sound, not least of all because it recapitulates the inductive process by which the right of privacy was historically derived, I can’t resist taking a stab at the kind of core definition that Solove warns us—wisely, I think—is doomed to fail.
I would ground privacy in a creaturely resistance to being used against one’s will. You can change used to exploited if you like, but I prefer used and add the following qualifications. First, it does not matter how one is used—and in fact, the more intangible the use (as an entertainment for the curious, as a taste of revenge for the envious, as a shortcut in examination protocols for the busily overbooked doctor or nurse), the more likely one is to regard it as a breach of privacy, as opposed to the rougher uses of theft and assault. Second, it does not matter if the exploited person is aware of being used, though it certainly hurts more if she is.
I like my definition for three reasons, and I dislike it for two. I like it, first of all, because its legal relevance is on a par with my legal expertise—nil in both cases. I also like it because it counters the notion that privacy is somehow anti-social. To be used is to be cheated out of one’s ability to serve, as slaves are cheated out of it, along with all but a few shreds of their privacy. For example, I cannot serve you with a compliment if you’ve already spied it in my diary. To be free is not simply to do whatever you want, but also to be able to do some things you might not want, but which love, loyalty, or principle inspire you to do. In short, to be free from use is to be free to serve.
Finally, I like my definition because it takes a poke at the flabby morality of insisting that “anything you do is okay so long as it doesn’t hurt somebody else” (with the hurt almost never defined by the somebody else). According to that morality, I am doing nothing wrong if I make a clandestine movie of my neighbors having sex, so long as they never find out about it and so long as I reserve the film exclusively for my own enjoyment. According to my definition, I have indeed done something wrong: I have violated my neighbors’ privacy. I have used them.
What I dislike about my definition is that it is insufficiently materialistic. I agree with Iris Marion Young, who observes that “much theoretical discussion of privacy seems rather ‘virtual,’” giving the impression that “privacy is largely cognitive or mental.” She prefers to focus on “the material bases of privacy,” on the fact that “even my thoughts are fleeting unless I give them some sort of expressive embodiment—a card, a diagram, a photograph.” I hope to give more emphasis to embodiment later on.
What troubles me even more about the definition is that it compels me to ask self-incriminating questions about the work I do as a writer, in which the need for material often involves the freewheeling use of real persons as subjects. I’m sure my definition has other, more substantive flaws. I certainly hope so, and for reasons that go well beyond the challenge to my conscience.
The difficulties in defining privacy ought rather to encourage than depress us. If privacy has to do with our essential humanity—if it is “an individual’s moral title to his existence,” as Jeffrey Reiman calls it, if it allows us to maintain “our very integrity as persons,” as Charles Fried argues— then should we be dismayed if its meaning proves to be as resistant to oversimplification as that of the person sleeping beside us? What preserves mystery might also be mysterious.
As if in rebuttal to that thought, I have just noticed on the jacket of one of the books I’ve quoted an endorsement written by a legal scholar, claiming that the author, also a legal scholar, is “committed to demystifying ‘the right to privacy.’” But this means no more than that the author and his endorser are committed to doing their jobs. I don’t tell lawyer jokes, and if I ever go to court to defend my right to privacy, I hope to have counsel more like Clarence Darrow than Saint John of the Cross. I don’t want a mystical decision, I want a favorable one.
Outside of court, however, I appreciate mystery; in fact, it is a key ingredient in my private life, in my intimate associations, and in just about everything I would call beautiful—a category that includes Supreme Court Justice William O. Douglas’s words in Griswold v. Connecticut (1965), a landmark decision for privacy rights and reproductive freedom. Writing for the majority, which ruled that a government ban on the sale of contraceptives was unconstitutional, Douglas said “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
This turns out to be perfectly acceptable legal language, but the last time I read anything quite like it was in the mystical writings of Plotinus. Not every legal scholar has found Douglas’s approach as edifying as I do, and even I have a slight caveat. With all due respect to the Justice, I would suggest that the Bill of Rights derives from the “penumbras,” rather than the other way around. By that I mean that the penumbras are most properly located around you and me. They were certainly located around William O. Douglas. If you look closely, you might even glimpse a few emanating from the Somali housekeeper who cleans your hotel toilet for slave wages, though on that score even the most libertarian Westerner generally prefers to have his women veiled.