Unpopular privacy : what must we hide?

278 Pages·2012·1.58 MB·English

by  Allen

Unpopular Privacy
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Analyzing Oppression Unpopular Privacy: What Must We Hide?
Ann E. Cudd Anita L. Allen
Unpopular Privacy
What Must We Hide?
Anita L. Allen
1
1

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Copyright © 2011 Anita L. Allen
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Library of Congress Cataloging-in-Publication Data
Allen, Anita L., 1953–
Unpopular privacy : what must we hide? / Anita L. Allen.
p. cm.
(Studies in feminist philosophy)
ISBN 978-0-19-514137-5 (alk. paper)
1. Privacy, Right of. 2. Privacy, Right of—United States.
3. Women’s rights. I. Title.
JC596.A44 2011
323.44'80973—dc22 2010046920
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
CONTENTS
Preface ix
Part I: Normative Foundations
1. Privacies Not Wanted 3
Everyday Meanings of Privacy 4
Privacy Law 5
Are Paternalistic Privacy Policies Justifi able? 6
A Right to Waive Privacy Protection? 8
Why Impose Unpopular Privacy? 9
Feminist Skepticism 11
Libertarian Skepticism 12
Th e Context 13
Neglected Rights, Forgott en Duties 18
O pportunity Imperative or Experience Imperative? 2 0
Justifi cation and Practical Limits 21
Constraining State Domination 23
Conclusion 25
Part II: Physical Privacies: Seclusion and Concealment
2. Seclusion 29
Solitude 29
Gett ing Away, Hiding Out 30
Stuck at Home: Flaneur and Hausfrau 31
Sanctuary 33
Interrupted: Do Not Call 34
Put Away: Imprisonment 37
Shut Away: Quarantine 41
Conclusion 45
3. Modesty 47
Muslims in America 48
vi Contents
Th e Hijab in France 50
Undressing Women or Addressing Social Problems? 53
Th e Niqab in America 55
Modesty, the Analysis 60
General Modesty 60
Bodily (and Sexual) Modesty 62
Modesty Rights 65
Religious Freedom 66
Individuality 67
Uniformity and Public Service 69
A Peculiar Modesty Bias in US Law 70
A “Compelling State Interest” 72
Conclusion 77
4. Nudity 78
Th e Barnes Case: Legal Moralism 79
City of Erie: Th e Harm Principle 84
Canadian Cases 86
R. v. Tremblay: Community Tolerance 88
R. v. Mara: Look, Don’t Touch 89
Modesty on the Run 9 1
Conditions of Work 93
Mutual Disrespect 93
Conclusion 95
Part III: Information Privacies: Confi dentiality and Data Protection
5. Confi dentiality 99
Th e Practice of Confi dentiality 100
Relationships and Occupations 101
Documents, Records, Spaces 102
Overlapping and Confl icting Directives 103
Law, Coercion, and Justice 104
Lawmaking as Practical Compromise 104
Sanction and Deterrence 105
Th e Right to Say What You Know 105
Paid-for Silence 106
F lourishing in a Free Society 1 08
vii Contents
Confi dentiality in Context 110
Healthcare 111
Laws Mandating Health Privacy 113
Mental Health 116
Waiver 118
Exception 120
Conclusion 121
6. Racial Privacy 123
What Is Sensitive Data? 123
A Missing Jurisprudence 1 25
An Unpopular Referendum 130
Recognition in the Courtroom 132
Profi ling in New Hampshire 132
Lessons fr om Georgia 134
Politics and Race in Illinois 137
Racial Privacy Outweighed 139
Ambivalence and Paradox 1 40
S ecrets and Sensitivities 1 41
Persecution 144
Political Liberalism: Th e Question of Impartiality 145
Private Association and Civil Rights 150
Conclusion 155
7. Th e Electronic Data Give-Away 156
Th e Federal Privacy Statutes 156
Many Statutes, Inadequate Protection? 157
Practical Obscurity: A Swan Song Aft er the Web 162
Give Away, Take Away 162
Lifelogs: Remembering Everything 163
Conclusion: Caring About Not Caring About Privac y 171
8. Popular Paternalism 173
Paternalistic Mandates 173
A Job for the Nanny State 175
Th e Children’s Internet Privacy Law 177
Fair Information Practices 178
A Law in Action 179
viii Contents
Why Age Th irteen? 181
Is the Paternalism Justifi ed? 183
Do Young Adults Need Paternalistic Laws, Too? 190
Aft erword 195
Notes 199
Index 249
PREFACE
I fi rst began writing this book a dozen years ago.1 My plan was to use diverse examples,
drawn from contemporary US privacy and data protection law, to raise philosophical
questions about legal coercion and paternalism under liberalism. In a liberal society,
“freedom is normatively basic, and so the onus of justifi cation is on those who would
limit freedom, especially through coercive means”; moreover, “political authority and
law must be justifi ed, as they limit the liberty of citizens.”2 But around that time privacy
law in North America and Europe was entering an uncertain, rapid-growth phase.3 In
the United States, major federal Internet, fi nancial, and medical privacy laws were on
the horizon, including the Children’s Online Privacy Protection Act, the Gramm-
Leach-Bliley Financial Services Modernization Act, and the Health Insurance
Portability and Accountability Act. Th e European Union had enacted its historic data
directive in 1995, dictating a harmonized set of legal reforms within member states.4 It
was widely anticipated that the directive would transform information privacy prac-
tices far beyond European borders. Th e European Union expanded its data protection
policymaking in succeeding years, with additional directives concerning telecommu-
nications, electronic data transmission, and data retention. In light of all of these devel-
opments, I decided to set my manuscript aside and wait for the legal dust to sett le. In
the meantime, I published short papers exploring topics I wanted to treat more exten-
sively as essays in this book.5
Th e terrorist att acks of September 11, 2001 kicked up legal dust, too. Th e feeling in the
United States was that the world had been remade and needed a reinvigorated regime
of security and law enforcement. Even before September 11, some commentators were
concluding that the United States had become a Kafk aesque bureaucracy evoking
“impotence, anger, and anxiety”; or, worse, a surveillance society seemingly modeled
on Jeremy Bentham’s panopticon or torn from the pages of George Orwell’s novel
1984 .6 Hastily enacted and reauthorized with modest amendments a few years later, the
USA PATRIOT Act permitt ed new levels of government surveillance.7 Now government
was expressly asking members of the public, especially when they traveled, placed
phone calls, or used the Internet, to give up previously fostered expectations of physical
and informational privacy. Since the late nineteenth century, fear of potentially invasive
technologies, from cameras to telephones and computers, had been major factors
prompting growth in privacy law. Aft er 2001, privacy advocates and civil libertarians
ix