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

During the 1980s, partly as a result of these interventions, the primacy of privacy (that
is, as a key foundational concept in a modern society) returned in force. In particular,
mainstream policy increasingly prioritised private over public economic ordering from
the late 1970s, concomitant with a prioritisation of the language of rights and obligations
over that of regulation and welfare. 39 From the early 1990s, this view of the state (as
guardian of the privacy of private actors rather than regulator of their welfare) appeared
dominant everywhere.
From the early 1990s, the view of the state (as guardian of the privacy of private
actors rather than regulator of their welfare) appeared dominant everywhere.
Throughout this period, then, conversations about the public good habitually focused on
the boundary between public and private and its policing. In the late Twentieth Century,
a group in the United States known as the “critical legal scholars” pointed out (as Max
Weber and others had much earlier in the century) that “private freedom” amounts in
practice to private access to public coercion. The problem, they said, was to determine
which private actors got what. Feminists articulated a structurally similar concern that
conservation of the family as a protected private space enabled domestic violence. Yet,
even as public interventions to stop private violence became increasingly expected, the
“right to privacy” restricted the state’s encroachment into the domestic domain in new
ways, notably by placing sexual and reproductive practices increasingly in the private
domain, in principle outside the state’s reach. 40
Three observations might be made:
1. The scope of the “private” appears to be adjustable. Where the boundary shifts,
certain concerns are placed beyond the public reach (where public may mean the
state, but may also mean “the general public”). As such private does not necessarily
have a core content, but is rather a space wherein interested parties may compete to
enshrine a position on contested issues. 41 This would suggest that the public–private
divide is fundamentally artificial, introduced and maintained in response to different
cultural, political or economic demands: a locus of contestation.
2. The “public” runs through the “private”. That is, at least in developed states, a
strong private sector and civil society is underpinned by a strong public sector and
rule of law. The principal question, most often, is whether the public role in protecting,
shaping, nurturing or curbing the private is perceived to be legitimate or not in any
given case. Because legitimacy is (presumptively) determined in the public sphere,
the question is whether the public sphere is functioning effectively. If our notions of
the appropriate bounds and limits of the private are flailing or collapsing, thus would
seem to suggest that the public sphere itself may be in trouble.
39 According to one account, at her first party conference as leader of the Conservative Party in 1978,
Margaret Thatcher reportedly held up Hayek’s Constitution of Liberty: “‘This’, she said sternly, ‘is what we
believe’, and banged Hayek down on the table.” John Ranelagh, Thatcher’s People: An Insider’s Account
of the Politics, the Power, and the Personalities, HarperCollins (1991), ix.
40 In the US, for example, a relevant string of Supreme Court cases include Griswold v. Connecticut, 318 U.S. 479
(1965); Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Texas, 539 U.S. 558 (2003). See Chapter 5, below.
41 Solove (2009) and Nissenbaum (2010) put forward, respectively, “pluralist” and “contextual” notions of
privacy that emphasise similar points. Solove (2008), 97–100, 187–189; Helen Nissenbaum “Privacy as
Contextual Integrity” 79 Washington Law Review 101 (2004).
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