Is Privacy Dead? Defining Privacy in Order to Protect It

On July 27, 1970, the cover of Newsweek cover pictured a man and woman cowering in a spotlight under the harsh gaze of anthropomorphic digital paraphernalia-a green telephone handset scribbling vigorously in a notebook, a bug-eyed film reel, an inquiring 35mm camera. Above the tableau was the headline, "is privacy dead?"

The headline's hyperbolic tone aside, the question gets to the core of an issue that has metamorphosed in recent decades as "telephone tapping, interception of electronic mail messages, minute cameras and virtually undetectable listening and recording devices give unprecedented access to private conversations and other private communications." The recombinant nature of these technologies has, through the mechanism of the Internet, intensified their espial potential and power. Current information privacy researchers tend to agree that privacy's nature has been altered by recent technologies and certain types of privacy violations have become technically easier to perpetrate. But there is no consensus on the definition of privacy or on the importance of privacy. The debate ranges between those who say privacy should be a human right and those who say that privacy should be balanced with the synergy and efficiency that comes with openness of information. The field of information privacy is fraught with ethical considerations, and the cultural variation in privacy mores has proved an impediment in the construction of any unified theory on how to regulate, or even to value, informational privacy.

The idea of a right to privacy in the United States traces back to 1890 when future Supreme Court Justice Louis Brandeis and his law partner, Samuel Warren, published an influential paper in the Harvard Law Review asserting a Constitutional "right to be left alone." Privacy has a complex legal history that has morphed and expanded from a "protection of the physical body" to include "one's right to make decisions about one's body" and, in Whalen v. Roe (1977), to recognize "the right to informational privacy and the interest to avoid the disclosure of personal information." In Katz v. U.S. (1967), the Supreme Court "decided that technologically enhanced eavesdropping could be considered an 'unreasonable search.'" This decision introduced the idea of a "reasonable expectation of privacy" as the litmus test for protection, and the technological advances in tools of surveillance lowered the expectations people had of privacy and, consequently, decreased protections. The right to privacy has been used as a rationale for the legalization of abortion (Roe v. Wade)and of homosexual sex (Lawrence v. Texas), but "privacy's status as a right is precarious, depending on the caprice of the courts and social institutions."

This tenuousness makes it difficult for researchers to agree on a definition of privacy. Definitions tend to be divided based on the purpose of the research. When the research is in the field of business ethics or is organizational, the definitional terms are process-based. Albert Marcella and Carol Stucki wrote that privacy "typically applies to the information-handling practices of an organization and the processing of personal information through all stages of [the information's life cycle." Irene Pollach, writing in a journal titled Business Ethics, notes privacy's primal tie to "human dignity," but operationalizes privacy as a relationship between economic stakeholders: online merchants, internet users," trust-service providers," and policy makers.

Other definitions of privacy focus more on ideas of rights and use humanistic terms. "Privacy," P. Parent wrote, "is the condition of not having undocumented personal knowledge about one possessed by others." A.F. Westin defined information privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." Debbie Kasper believed that privacy literature is too narrow to be generizable or too vague to be useful, is "culturally and historically biased," and is "value-driven." Kasper created a typology of privacy invasions: extraction (taking), observation (watching), and intrusion (entering).
Despite the varied definitions, there is a near consensus that the technological innovations of the past half century are at the crux of today's ethical, legal, and technical privacy dilemmas. Pollach accepts as axiomatic how, "with the emergence of electronic commerce, more data than ever before are being collected, while people have less control than ever before over their personal data" and that "joint ownership rights [of information between corporations and consumers] may not always be respected, given that electronic commerce puts web merchants in a better position to advance their interests than consumers." Ashley Dunn wrote that "privacy in the modern age has largely been an issue of physical walls-walls that protect our possessions, shield out secrets and provide a haven for lives that are different from our public personas. But the very nature of virtual life seems to rebel against this opacity