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

protection of these three components of privacy is a necessary (but insufficient) condition
for the autonomy of the person to be met. For the moment, it is worth highlighting the
importance of individual control, which enables a person to construct her identity and
ward off alienation or the manipulation of desire. Roessler cites Isaiah Berlin: 35
I wish my life and decisions to depend on myself, not on external forces of
whatever kind. I wish to be the instrument of my own, not other men’s acts
of will... I wish to be a subject not an object... deciding, not being decided
for... as if I were a thing... incapable of conceiving goals and policies of my
own and realizing them.
This assertion of individual control (contrasted with alienation or manipulation) captures
the core appeal of autonomy. In articulating the assumptions that underpin many
defences of privacy, Roessler provides a useful benchmark for assessing the extent to
which privacy standards do, in fact, protect these qualities. Her account has the great
merit of proposing a strong case for the privacy–autonomy pairing, whose strengths
reflect its frequent (but often inarticulate) presence in much everyday discussion.
Rather than claiming that privacy is a “social value”, it may therefore be more productive
to think of it (in the liberal tradition) as a “public good”. Protections of privacy, on this
model, protect the autonomy of private persons – which does not mean merely ensuring
choices are available but also protecting and facilitating individual capacity to choose
free from alienation and manipulation.
Rather than claiming that privacy is a “social value”, it may be more productive
to think of it (in the liberal tradition) as a “public good”.
The Retreat and Return of Privacy in the Twentieth Century
With the rise of the welfare state in the twentieth century, this classic liberal ideal of
private autonomy came under attack. Sustained critiques of the “rise of the social”
(the expression is Hannah Arendt’s) appeared in the influential work of, among others,
Friedrich Hayek. Hayek argued that any redistributive action by the state tended to
infringe the freedom of private persons to act as they saw fit: he provided an ethical
basis for opposition to socialism founded on the principle of private autonomy. Hayek
insisted that the appropriate role for the state was, in the classic liberal constitutional
mode, the preservation of private freedoms, not the management of economies. 36
Milton Friedman pushed the same analysis further, holding that state regulation of
private activity was generally both intrusive (ethically unacceptable) and inefficient
(economically unsuccessful). 37 Like many others across the political spectrum, these
writers appear to have worried, in the mid to late twentieth century, that the “public–
private divide” was collapsing. The first contemporary tracts on privacy appeared soon
afterwards: Alan Westin’s 1967 “Privacy and Freedom”, for example, and Tom Gerety’s
1977 article “Redefining Privacy”. 38
35 Cited in Roessler (2005), 63.
36 See generally Friedrich Hayek, The Road to Serfdom, University of Chicago Press (1994 [1944]); Friedrich
Hayek, The Constitution of Liberty, Routledge Classics (2006 [1960]).
37 Milton Friedman, Capitalism and Freedom, University of Chicago Press (2002 [1962]).
38 Tom Gerety “Redefining Privacy”, 12 Harvard Civil Rights–Civil Liberties Law Review 233 (1977); Alan F.
Westin, Privacy and Freedom, Atheneum (1967).
12 Navigating the Dataverse: Privacy, Technology, Human Rights