Navigating the Dataverse: Privacy, Technology ... - The ICHRP

I. A Short History of Privacy
Although notoriously resistant to definition, privacy is clearly a rich as well as a dense
concept. Chapter 1 gives content to the term, sets forth some parameters and suggests
some key associations in order to provide a sound foundation for the chapters that follow.
Chapter 1 begins by describing the history of an idea: that of the “private” person, and the
crucial role this person plays in most visions of the modern state. The autonomous private
subject is so deeply embedded in discussions of privacy, even in critical and scholarly
writings, that it tends to short-circuit reflection. The first section relies on Habermas
as a guide to a complex set of issues that can seem deceptively simple. A following
section then briefly tracks the relative decline and return of privacy in Twentieth Century
political, social and economic developments. To end, Chapter 1 briefly discusses the
position of human rights in this debate.
The Co-Emergence of Public and Private
The public–private distinction plays an indispensable structuring role in legal and
conceptual underpinnings of state and society and the relationship between them. Albeit
often implicitly, it is consistently assumed that a modern legal regime and state should
preserve and consolidate distinct public and private realms. But things have not always
been that way, and nor are they universally that way: the distinction has a history.
Jürgen Habermas’s Structural Transformation of the Public Sphere provides the best
account of the emergence of the public and private spheres in their modern form. 10
He describes the evolution of ideas and ideals that drove their emergence, as well as
the historical events (the emergence of communication and industrial technologies, the
consolidation of European states during the Reformation) that incarnated them. This
section draws on Habermas not only for his analysis of the conditions that gave rise to
modern privacy and its structural relation with both state and society, but also to clarify
the often confusing and occasionally contradictory ways in which the terms public and
private are deployed and related.
A Public of Private Persons
Structural Transformation describes the emergence of a public sphere, that is, a space
where the general public forms the public interest or public opinion. 11 The public sphere
is often conceived as a domain in which society attains self-awareness (becomes a
public) by means of discussion and debate in public places, including the media.
Public debate is therefore both the means by which the public interest is determined
and the source of public self-awareness. In principle, no actor creates the public: it is
self-constituting as the legitimate and proper source of authority for government and
law. This is how modern constitutionalism differs and emerges from prior notions of
On definitions of privacy, see, for example, Daniel Solove, Understanding Privacy, Harvard University
Press (2009); Nissenbaum (2010).
10 Jürgen Habermas, Structural Transformation of the Public Sphere, Polity Press (1994), 3–4. See also
Hannah Arendt, The Human Condition, The University of Chicago Press (1958), 22–78; Raymond Geuss,
Public Goods, Private Goods, Princeton University Press (2001), 31–32. The discussion in this section is
partly adapted from Stephen Humphreys, Theatre of the Rule of Law, Cambridge University Press (2010),
45–54 and 62–74.
11 Habermas’s term is Öffentlichkeit, meaning “openness” or “publicity”.
Navigating the Dataverse: Privacy, Technology, Human Rights