Privacy Rights and Public Information

Our subject is the nature and limits of individuals' rights to privacy over information that they have made public.1 Consider the following case. The UK and Republic of Ireland charity Samaritans provides a long-established and well-respected suicide-prevention telephone helpline. In 2014, Samaritans launched a web app called Radar, which aimed to detect signs of emotional distress or suicidal thoughts in Twitter posts. The idea was that you, as a Twitter user, could sign up to Samaritans Radar and the service would monitor the public tweets of all the people you were following on Twitter. Radar would then alert you if it detected a tweet, or pattern of tweets, in any of the people you were following that indicated that the person 'could be going through a tough time'.2 Importantly, Radar did not inform those whose tweets were being monitored, nor was consent sought from them. Should we be concerned with these kinds of practices? Do they violate individuals' right to privacy? One, influential, tradition within the philosophy of privacy thinks not. As explained, Radar works by analysing tweets individuals have made public and, according to this tradition, informational privacy is by its nature limited to private information. First, one has no right to privacy over information that was never private to begin with. Second, insofar as any individual makes once-private information public, they waive their right to privacy with respect to both that information and anything one may infer from it. Thomson offers what may be regarded as a canonical statement of this position. To illustrate her view, she provides the following series of examples. Say you possess some picture. In one case, you want someone else to look at this picture and therefore (1) invite her to look at it, or (2) get her to look at it whether she wants to or not. In another case, you do not mind who looks at the picture and therefore (3) let it be looked at. Again still, despite not wanting anyone to look at the picture, you (4) leave it somewhere where another person would have to go to some trouble to avoid looking at it, or (5) leave it somewhere where nobody could reasonably be expected to know it belonged to anybody.3 In Thomson's view—and that of numerous others—despite having a right that others do not look at one's picture, a right to keep it private, in all these cases one has waived that right; in cases (1), (2), and (3) intentionally, in cases (4) and (5) unintentionally.4 And, 'given a man has waived his right to a thing, we violate no right of his if we do not accord it to him'.5 Although Thomson does not explicitly discuss this, the same logic would seem to cover anything anyone might infer from looking at the picture. Say, for example, that the picture is a photograph of you at high school. By looking at the picture, someone might be able to tell (with varying degrees of accuracy) the school you attended, how happy you were at the time, perhaps something about the kind of social groups you used to keep company with, and so on. If one has waived one's right to privacy about the picture itself, it looks as though one has waived one's right to privacy about these pieces of information as well. Correspondingly, no one violates any right of yours by inferring them from the information you have made public, whether or not you intended to publicize those pieces of information when you publicized the original picture. On Thomson's view, then, an individual's right to privacy begins and ends with that information they hold in private. And this seems to have been the view adopted by Samaritans. Indeed, in the 'Frequently Asked Questions' prepared for the launch of the app, Samaritans explained that 'All the data used in the app is public, so user privacy is not an issue. Samaritans Radar analyses the Tweets of the people you follow, which are public Tweets. It does not look at private Tweets.'6 It is fair to say, however, that others felt differently. Within a couple of days of its going live, a change.org petition was created by members of the public, alleging that 'Samaritans Radar breaches people's privacy by collecting, processing and sharing sensitive information about their emotional and mental health status.'7 Samaritans were caught off guard by the scale of the anger, and Radar was suspended, before being taken offline permanently only nine days after it launched. Whether or not Twitter users' rights to privacy were violated in this particular case, we think that it is important to have an account of the right to privacy that at least makes it intelligible that such uses of information could violate privacy—that there can be cases in which an individual's right to privacy could be violated by the appropriation and dissemination of information either that they themselves have made public or that has been inferred from information they have made public. The idea that we might be under continued obligations to protect an individual's right to privacy, even when they are acting within a public domain is not new. One writer who has perhaps done more than any other to illuminate this field is Helen Nissenbaum.8 Among various other innovations, Nissenbaum makes two interventions critical to the present debate. First, Nissenbaum eschews orthodox views that start by drawing a strong distinction between private and public spheres—wherein the 'private' indicates the realm of familial and other personal or intimate relations and 'public' the civic realm or realm of community outside of this personal one—before assigning special protection only to activities in the former domain. Rather, as Nissenbaum shows, it is not the case that 'outside of this special realm no norms of privacy apply', or that personal information is somehow 'up for grabs'.9 Even in public, norms governing what Nissenbaum calls the 'appropriate flow of personal information' can still render certain activities violations of individuals' right to privacy.10 Secondly, Nissenbaum draws our attention to the extent to which the norms governing the appropriate flow of personal information are shaped by their social context, being a function of (1) the types of information in question; (2) the respective roles of the subject, the sender (who may be the subject), and the recipient of this information; and (3) the principles under which the information is sent or transmitted from the sender to the recipient.11 Thus, on Nissenbaum's view, the right to privacy is properly understood as a right to 'contextual integrity' and what this amounts to 'varies from context to context'.12 Nissenbaum's work provides a powerful set of tools with which to analyse the normative structure of new problems in the philosophy of privacy. However, while Nissenbaum alerts us to the possibility that the right to privacy may cover activities in a greater range of domains than we previously assumed, one set of cases she overlooks, perhaps, are those in which duty-bearers overlook their duties to right-holders, not because they fail to recognize the presence of certain norms of contextual integrity, but because they mistakenly believe that such norms are no longer in force. In the case of Radar, then, we would argue that the mistake Samaritans made was not that they wrongly assumed that there were no norms of contextual integrity with respect to people's activity on Twitter; rather it was that, based on a misreading of the normative significance of certain actions by Twitter users, they wrongfully concluded that such norms were no longer in operation. In our view, then, in order to make better sense of what is going on in these sorts of cases, we need to shift our attention away from questions about where individuals may exercise their right to privacy, and instead look to how right-holders manage their rights within such domains—in particular, by what actions individuals 'hold' their rights and by what actions they 'waive' them. This, in turn, leads to a further discussion about what inferences duty-bearers may legitimately draw about their continued obligations to right-holders from how those right-holders behave. In this sense, then, our primary interlocutor in what follows is Thomson, rather than Nissenbaum. Following Thomson, we do not contest the idea that individuals can waive their right to privacy and often do so when making a piece of once-private information public. However, we do contest the idea, intimated by Thomson, that one can waive one's right to privacy unintentionally. From this, it follows that there is a class of public information—namely, once-private information that individuals have made public unintentionally—which remains under the protection of an individual's right to privacy, even when it has passed into the public domain. As we shall see, this class includes any information the right-holder was unaware could be inferred from information they have made public and which they would not otherwise have wanted to be in the public domain. In what follows, we detail this argument in greater depth, drawing out its various implications and responding to various counter-arguments. We begin, in Section I, by outlining what we take as the content of the right to privacy, that is, what we take the right to privacy to be a right to.13 Here we primarily draw on an account of the right to privacy recently offered by Marmor; although, as we also emphasize, our argument does not necessarily depend on subscription to that particular conception of the right to privacy (nor certain other debates about privacy and its moral import). In Section II, we then give a broad account of the obligations engendered by individuals' right to privacy, the actions by which a rights-holder may absolve us of them or 'waive' such rights, and the kinds of information that we may thereby take them to cover. In Section III, we explore the issue of information obtained through analysis and inference. In Section IV, we then consider the extent of our obligations when the ethical status of public information is unclear. In Section V, we discuss a few complications and ambiguities of our position, centring on what can be considered a 'reasonable expectation'. In Section VI, we consider the implications of our theory for the ethics of Big Data, before concluding in Section VII. The philosophical literature provides a plethora of competing conceptions of the content and purpose of the right to privacy, from the notion of privacy as control over information (as espoused by Fried, Parent, and Prosser)14 to privacy as control over access (defended by Allen, Gavison, and Moore).15 Nothing about the thesis we shall lay out here requires us to decide between these or other conceptions. Since what interests us here is a question about (1) what kinds of action by an agent may be said to waive their right to privacy, and (2) the kinds of information that a rights-holder should be understood as holding their right to privacy over, both questions may be addressed independent of many of the current views about what constitutes an individual's right to privacy.16 However, that being said, for ease of explication it will be helpful to explore the points we want to make in the context of a more specific account of the right to privacy, even if the implications of our argument are broader.17 For the purposes of exposition, then, in what follows we adopt a recent account set out by Marmor. On Marmor's account, an individual's right to privacy is best understood as being grounded in their interest in having a reasonable measure of control over the ways in which they can present themselves and what is theirs to others.18 There are a few features of this conception that are worth bearing in mind in what follows. First, as Marmor himself emphasizes, the notion of privacy he endorses follows two intuitions originally articulated by Thomson: that 'a violation of a right to privacy is not simply about what is known but mostly about the ways in which some information is obtained'; and that 'when we focus on what is wrong about the way in which some fact came to be known, we can normally explain it as a violation of one's proprietary rights: somebody used something that is yours without your permission'.19 However, rather than following Thomson's view that privacy may thereby be reduced to certain other, more basic, rights (notably proprietary rights), Marmor argues that there is something coherent and distinctive about privacy rights: specifically, they safeguard our interest 'in having a reasonable measure of control over ways in which we present ourselves to others and the ability to present different aspects of ourselves, and what is ours, to different people'.20 As Marmor is happy to admit, the qualifier that we only have a right to a 'reasonable' measure of control over the way we present ourselves to others is 'a rough and vague criterion'.21 However, it reflects two limitations to our right to privacy: first, that no one can have 'absolute control' over the ways in which they are perceived by others; and secondly, that no one ought to have too much control over the way they present themselves to others. What is necessary, though, is some control. The appropriate measure of control required in any situation, then, becomes a question of what is reasonable to protect those interests safeguarded by the right itself. Such a threshold is vague in that it admits of reasonable disagreement as to the extent of that limit, yet what it loses in precision it gains in flexibility: what constitutes a 'reasonable measure of control' in one situation may be different from another. As discussed, the principal aim of this article is to elucidate some of the fundamental characteristics of the right to privacy. However, the main argumentative work done in the article is in our explication of the duties engendered by the right to privacy and by what actions right-holders absolve duty-bearers of such obligations, which is to say, to 'waive' them.22 What are the duties, then, engendered by an individual's right to privacy? To date there has been surprisingly little discussion about this issue in the literature.23 However, to the extent that the question has been considered at all, writers have tended to characterize the duties generated by the right to privacy in terms of an obligation on the part of duty-bearers to refrain from doing something harmful or restrictive to right-bearers with respect to the domain covered by the right in question. Thus, when we understand an individual's right to privacy in Marmor's terms, as a right to have a reasonable measure of control over the ways we present ourselves to others, we might correspondingly think that, by holding such a right, right-bearers make a justifiable claim on us not to impede, circumvent, or otherwise supersede their efforts in presenting whichever 'self' they wish to whomever they wish at any given moment.24 Needless to say, this prescription might be seen to cover a whole host of possible actions. However, one important class of these—certainly one which scholars working in privacy have been most concerned with—is the appropriation and public exposure of information that rights-holders had sought to keep private. On this line of thought, then, there is some set of information that a person holds 'in private'—which is to say, confidential to that person and anyone they have brought into their confidence—and one of the duties engendered by an individual's right to privacy is to refrain from any action which attempts to gain access to such information without their consent and/or make such information known to others.25 The classic example here is the picture kept locked away in a safe, with the owner's right to privacy giving us good reason to refrain from gaining access to the safe to look at the picture and/or showing the picture to others. However, the question now arises, does an individual's right to privacy give them a justifiable claim over our actions with regard to any other kinds of information? As noted in the introduction to this article, for many the simple answer here is no. That is, insofar as an individual does not hold a piece of information in private, they have no claim on us as to what we do with it. First, consider information that was never private to begin with. The colour of the sky, for example, might be considered as one piece of eternally public information. According to this account, individuals have no justifiable claim over our action with regards to this kind of information because such information was never held by them in the requisite sense. Such information belongs to everyone and no one (picking up, perhaps, on the intuition that there is something 'proprietary' about privacy when it applies). Next, consider information that, though once private, now finds itself in the public domain by way of some action of the right-holder. Here, the argument goes, rights-holders have no justifiable claim over our action with regard to such information because, although they did have such a claim, by virtue of making such information public they have waived that claim—that is, they have absolved us of any obligations that we were previously under with respect to their right to privacy about that piece of information. Thus, whether a piece of now-public information is public by virtue of its always having been public, or whether it is public by virtue of some action of the right-holder, individuals have no legitimate claim over our actions. In turn, we might reasonably conclude that there are only two kinds of information—private information and public information—and one's right to privacy (and the duties it engenders) covers only that information currently held in private. In our view, however, there is good reason to think the situation is more than In particular, one fact by this account is the question of how a piece of now-public information came to be in the public in the and, in particular, whether it was the of an action by the rights-holder or an For her Thomson this possible when the cases to at the of this article, yet she also it to be Thus, for Thomson, of whether such information was made public (as in cases (1), (2), and or (as in cases (4) and one has privacy rights one had over such information. the idea that cases are seems In particular, it seems to claim that one could waive a right unintentionally. Rather, if one is to waive a right, one would seem to need to waive notion of an action on the part of the agent with regard to their One Thomson might seems the idea that one through a series of render certain obligations engendered by a right which is to say, for any duty-bearers to It to be something this idea that Thomson wants to get at in case where the to be from their not to look at the picture because they have no but to there is a between certain obligations engendered by a right and that In particular, where one's right to something might be seen to absolve duty-bearers of all their obligations engendered by that right if some explicitly set of from the fact that, by one's one some set of obligations engendered by one's right it does not seem to that one all such obligations but rather only those that it is now to to then, simply because have created a situation where you but the picture, thereby making it for you to your to refrain from that it does not you are therefore absolved of all your duties engendered by right to your not to its to of about or has made those duties In some cases, this also seems of one's not to appropriate some of information. For example, your are having a but also argument that you but the context, you know that your have no of their perhaps being unaware how they are or that their are or that you are at then, are your obligations For Thomson, of there are no obligations that could be understood in terms of their right to However, we might think that, even if they are so that it is not to that they are having an it would still be wrong of you to too attention to what they are If you are to respect their privacy, you still have an obligation to refrain from to appropriate the content of their to adopt a kind of to a that, as as they are and as as they remains private. What all this of is that there may be some pieces of once-private information that have their way into the public but in respect to which a rights-holder has not waived their right necessarily all our obligations engendered by that And, from it also becomes that, Thomson, the fact that a piece of information is within the public domain does not therefore that one is under no obligations with respect to it, for it may be that the rights-holder never waived their right over that information. One one might have with this view is that it makes the ethical situation with regard to now-public information much more than such as Thomson's would is in ways we will go on to However, we would argue that it also which we might otherwise consider the case of a wrongly addressed One a that was intended for another Should one it violate the right to privacy to it, or to it on to this case is discussed, often that one's obligations are that intuitions us in different and that there is about where one's However, we would argue that the situation is of one should not let it to the fact that someone has to keep private what they to keep private does not give one with regard to any information they have Indeed, as as our obligations in these kinds of cases, the analysis also provides something of an theory as to how we came to think such cases were in the That is, we might think that our about what we ought to do in these kinds of cases can be on the one a philosophical that us that we have no obligations with regards to public and, on the other, a set of intuitions that claim the because the sender sent the does not that you are thereby absolved of your to respect their right to privacy. us take One way in which one might the is as out a new of how individuals manage their rights within a domain. Within this individuals are taken to hold certain rights, from which it follows that there is a continued obligation on the part of duty-bearers to respect and those may through waive their rights, which is to say, absolve duty-bearers of their duties with regard to those may through or render their rights which is to say, make it for duty-bearers to their duties with regard to those What they may not do is waive their rights, which is to say, absolve duty-bearers of their As we have this may be to how individuals manage their right to privacy: in different and through different actions individuals may or render their rights to privacy that your may be public and you to make inferences about her we can infer what is taken to be personal information on the of information that is taken to be a further question about the duties engendered by the right to privacy: what are our obligations with regards to information that a person may wish to keep private but which we are able to infer from information they have made public Thomson's to this is, That is, any information one is able to infer from public information in information that has in the public domain or or such information does not violate any right of even if that information is to information to keep private. because may not have known that by she was therefore also that does not that our through analysis of violates her right to privacy, for by in the public has waived her right to privacy over it and anything that may be inferred from it, of whether that of was information an individual has made public. In the we that the right to privacy covered (1) and did not cover (2), and had been waived with respect to However, the of information a new set of to (3) and Our view, then, is that right to privacy to the extent to which an individual intended to make a piece of information public. the right to privacy to be waived in the case of (5) and to cover However, it also covers which is to say, information inferred from information that an individual has made public, but which does not as a piece of information they intended to make public. the idea but it can be in a simple is a also from a and to a piece of information about she to keep private. One to take part in a new The primary purpose of the is to the of for As a in the to her to and, to the about even to it on the with a the fact that it is to however, by this information on the also makes it possible for those in to that she from her is one such and, having to go to the to publicize that In this case, Thomson, and those who would argue that there is wrong with at least with regard to By her on the has waived her right to privacy over both that information and anything that may be inferred from it, even when she originally her she did not to the fact she from a By we argue that, despite the fact that intended to publicize the of her by virtue of the fact that she did not thereby to publicize the fact she from a actions still as a violation of her right to we our about actions. That is, we seem to that by does something wrong and, in particular, that he However, it is also that at this our certain For example, that, rather than her on the a to into As the is a of both and and, their he is able to by a series of that she from the that she has so to keep private. What kind of duties might be under at this On our it is not that is under a to refrain from perhaps more that he

Computer security · Information privacy · Internet privacy · Political science · Privacy policy · Public relations · Right to privacy · Computer Science · Patient Dignity and Privacy · Privacy, Security, and Data Protection

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