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

property. 20 This establishes the link between privacy and autonomy.
Second, private persons must be educated: they must be capable of arriving at and articulating
their opinions. The private is here nourished by a universal public space in a process that can
be traced to the consolidation of freedom of conscience. 21 In Europe, freedom of conscience
(initially of the prince, subsequently of the private citizen) provided the principal prize of a
long-running battle that resulted in the emergence of the Westphalian state order. In this
respect, a number of classic liberal “freedoms” – of conscience, of religion, of expression and
of assembly – are fundamental to privacy as it was then and is still conceived.
The public sphere is the space in which autonomous persons meet, debate and
compete with a view to arriving at consensus or compromise. 22 It nevertheless remains
in the private realm of civil society, which is strictly distinguished from the realm of public
authority. 23 Historically, members of civil society (an emerging middle class) thought of
themselves first and foremost as private persons. They viewed the family and economic
activity as their primary occupation. 24 So for a growing section of society, the preservation
and protection of an “intimate sphere” of family and a “private space” of work became a
priority. The last step in this story is the translation of this vision into the structure of law
and statehood.
Historically, members of “civil society” (an emerging “middle class”) thought
of themselves first and foremost as private persons. They viewed the family
and economic activity as their primary occupation.
The Constitutionalisation of Privacy
According to this story, with the turn to constitutionalism in nineteenth century Europe,
the public sphere and its role were woven into the legal structure of the state: the private
person acquired constitutional protections. The arrangements made sought to preserve
the special status of the public sphere through a number of basic elements.
First, constitutions created a realm of formal equality “that, far from presupposing equality
of status, disregarded status altogether” in the interests of a newly-endorsed common
humanity. 25 In practice, of course, not everyone made it into the salons, theatres, letterpages,
reading rooms and coffeehouses that comprised the public sphere. In principle,
however, it was not the status of the debater that mattered but the truth or reasonableness
of his or her argument. A second feature of the public sphere, then, is its rationality. 26
Third, the public sphere “presupposed the problematisation of areas that until then had
20 Habermas (1994), 85–86: “[T]he restriction on franchise did not necessarily [restrict] the public sphere
itself, as long as it could be interpreted as the mere legal ratification of a status attained economically in
the private sphere… the public sphere was safeguarded whenever the economic and social conditions
gave everyone an equal chance to meet the criteria for admission.”
21 See Habermas (1994), 10–12, 74–77.
22 Habermas (1994), 64.
23 Habermas (1994), 175–176: “[The] model… presupposed strict separation of the public from the private
realm in such a way that the public sphere made up of private people gathered together as a public and
articulating the needs of society within the state, was itself considered part of the private realm.”
24 Habermas (1994), 52.
25 Habermas (1994), 36.
26 Habermas (1994), 54, 94, 99–107. Craig Calhoun summarizes, “However often the norm was breached,
the idea that the best rational argument and not the identity of the speaker was supposed to carry the day
was institutionalized as an available claim.” Calhoun (1992), 13.
Navigating the Dataverse: Privacy, Technology, Human Rights