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

3. Private boundaries result from public guarantees. It is optimistic and inaccurate
to assume that privacy primarily concerns personal autonomy and control of the
boundaries of the self. 42 Following Roessler, key boundaries include decisionmaking
(“decisional privacy”), access to information (“informational privacy”)
and access to the body or home (“local privacy”). 43 These boundaries are formed
via complex interactions between self and society or self operating through
society. They come to exist not only because autonomous individuals will them,
and not merely as the result of tacit agreements with others, but also through
the structures of law. As with all public affairs, such agreements are guaranteed
against a background threat of state coercion.
In other words, the state’s protection of the private sphere guarantees not only state
non-intrusion at certain times (but not others), but also the non-intrusion of others. Since
the mid-nineteenth century the police have been the main instrument providing this
guarantee of security. However, many other institutions, both public and private, play a
role. But paradoxically, as even this brief discussion shows, state guarantees of privacy
also involve intrusions into privacy.
Communication infrastructures, for example, have always been subject to state
oversight, in order to provide the same presumed guarantee. And yet, the privatisation
of communications structures everywhere during the 1990s was perceived to have
revitalised the private sphere; an information revolution was expected to overthrow
bureaucracies and empower individuals. However, just two decades later, personal
information is scattered across public and private domains alike with no clear sense of
who is their guarantor, or indeed whether information can be guaranteed at all. The early
assessment of private empowerment now appears sanguine. 44
Personal information is scattered across public and private domains alike with
no clear sense of who is their guarantor, or indeed whether information can
be guaranteed at all.
The most useful questions to bear in mind as we move forward are not “do these boundaries
really exist?” or “can individuals really control them?” The question is rather, what is happening
to these notional boundaries, and what does it mean to “control” them? And also: Is the
same thing happening for everyone? Or are some affected differently than others?
Human Rights and Autonomy
The idea of human rights also depends on a clear distinction between public and private.
Whether we regard the distinction as natural, constructed, illusory, or ideological, we
must treat it as real if we are to speak meaningfully of human rights. At the same time,
the fuzziness and ambiguity that surround this distinction are not transitory; they cannot
42 Irwin Altman defines privacy as “the selective control of access to the self”). Irwin Altman, The Environment
and Social Behavior: Privacy, Personal Space, Territory and Crowding, Brooks/Cole (1975), 24.
43 For other taxonomies of privacy, see Daniel Solove “A Taxonomy of Privacy” 154 University of Pennsylvania
Law Review 477 (2006). On some accounts, such as Alan Westin’s, all dimensions of privacy collapse
into information privacy (“the claim of an individual to determine what information about himself or herself
should be known to others”). See Alan Westin, “Social and Political Dimensions of Privacy” 59 Journal of
Social Issues 431 (2003), 431; and Westin, (1967), 7. However, Roessler’s threefold distinction appears
more intuitive, and has the merit of economy and clarity; it will be used here.
44 See further, for example, Evgeny Morozov, The Net Delusion: The Dark Side of Internet Freedom, Public
Affairs (2011).
14 Navigating the Dataverse: Privacy, Technology, Human Rights