The Duty to Protect Your Own Privacy

Anita L. Allen

What good might privacy do or represent for us? Philosophers, lawyers, political theorists, and policy makers are hard at work seeking to understand the value of privacy. They are asking, for example, "Whether and, if so, why privacy is valuable in a democratic society, and what implications privacy has for the ways we see and treat each other." As summed up by Annabelle Lever, "Proponents of privacy believe that it promotes people's freedom, equality, and happiness. ... [P]rivacy can help to protect people from unjustified scorn, humiliation and recrimination, as well as from bribery and coercion." Privacy is indeed valuable for democratic societies like ours, in which people need the capacity to think and act independently. Privacy has value for individuals, and in the words of Julie Cohen, "generate[s] large positive spillovers for society."

The question I take up in this chapter is not, however, the familiar one of whether privacy has value — intrinsic or instrumental, personal or collective. Instead, it is a broad question about the ascription of ethical responsibility: in addition to any moral obligation to protect others' information privacy, do individuals also have a moral obligation to protect their own information privacy? Moreover, could protecting one's own information privacy be called for by important moral virtues, as well as obligations or duties? I broached the issue of protecting one's own privacy as a requirement of ethics in a recent book about physical and information privacies. But limited space and a broad, ambitious agenda prevented me from fully examining the case for and against the ascription of ethical duties to protect one's own privacy to individuals. So, I return to it here.

Safeguarding others' privacy is widely understood to be a responsibility of government, business, and individuals. The "virtue" of fairness and the "duty" or "obligation" of respect for persons arguably ground other-regarding responsibilities of confidentiality and data security. But is anyone ethically required — not just prudentially advised — to protect his or her own privacy? If so, how might a requirement to protect one's own privacy and related ethical virtues properly influence everyday choices, public policy, or the law? I want to test the idea of an ethical mandate to protect one's own privacy, while identifying the practical and philosophical problems that bear adversely on the case.

THE GREAT INFORMATION PRIVACY GIVE-AWAY

With respect to information privacy, the question of a duty to protect one's own privacy is an especially timely and important one. I focus on information privacy — as opposed to decisional or physical privacy — for that reason. We are in the midst of an Era of Revelation. Our time is characterized by what I term the "Great Privacy Give-Away." People are giving away more and more personal data to intimates and strangers for a variety of self-interested, altruistic, or civic-minded reasons.

Some scholars and other commentators have expressed admiration and support for individuals who choose freely to share personal information, and some have concluded that it is good for society that individuals are choosing to share personal data. Indeed, there can be good reasons to share, even what is deemed highly sensitive personal data, as a recent report of the Presidential Commission for the Study of Bioethical Issues found with respect to individuals' sensitive whole genome sequencing data sought by biomedical researchers.

In the United States and most other parts of the world, contemporary modes of communication feature extensive, high-technology-aided personal-information sharing that is enjoyable, rewarding, often practically necessary, and publicly beneficial. The benefits of information disclosure are sufficiently numerous, in fact, that it may strike some as facially implausible that there could be any such thing as an ethical obligation not to disclose. How could we be duty-bound to withhold information about ourselves?

Of course, we all recognize special professional duties of confidentiality and secrecy, which are specific modes of legally and ethically mandated information privacy. Thus, in the usual case, a federal government employee cannot ethically reveal classified information without authorization. A lawyer cannot ethically share many of the secrets she discusses with her clients in the course of representation. But in the Era of Revelation, I surmise many would argue that there is no moral or ethical basis for disapproving if a government employee, a lawyer, or anyone else freely chooses to share intimacies about her own life. According to this perspective, without any moral or ethical shadow, a person can always reveal that she practices celibacy, has breast cancer, is burdened by a pile of unpaid debts, or dislikes foreigners. Only norms of tact, manners, and taste apply. (A philosopher might argue, building on Helen Nissenbaum's powerful descriptive account of information privacy, that there are ethical norms of appropriateness, not mere guidelines of taste and tact at stake here.)

A new, technophilic generation appears to have made disclosure the default rule of everyday life, and cannot imagine things any other way. Commentators excitedly claim that a new generation has rejected or redefined informational privacy. Some older people welcome the change. "Let us celebrate the insouciance of youthful privacy indifference!" one of my grey-haired legal colleagues asserts, ironically repeating market-economy efficiency arguments for transparency articulated more than fifty years ago, pre-Internet. The young and young at heart may indeed look back and snicker at the high-toned insistence of Judge Richard Posner in Haynes v. Alfred A. Knopf, Inc. that the mysteries of privacy universally extend to graphic details of the intimacies of the bedroom and toilet. "Big Brother" — not the Orwell character but the European and American reality TV show that places young adults on public display nearly 24/7 — is already vintage.

Yet, if we are to take normative ethics seriously — and I recognize that not everyone wants to or can — we have to be open to the possibility that some of what we do and enjoy doing may not be ethically good or best. We may have ethical reasons and obligations to do things differently. The fact that a new generation has rewritten the rules of privacy or abandoned privacy as a value altogether would not prove that privacy was or is mostly worthless. Admittedly, values do erode; values can outlive their times. In my lifetime, it was widely considered immoral — and illegal — for unmarried people and people of different races to cohabitate.

It is not especially problematic to say, with ethics in mind, that someone has an obligation to protect other people's privacy. That we can understand and agree with. We have no problem saying that people have a moral obligation not to make gratuitous, cruel, unconsented-to information disclosures about others. In 2010, Rutgers University student Dharun Ravi violated that ethical duty with horrendous consequences. He surreptitiously webcast his roommate Tyler Clementi being intimate with another man, which prompted a mortified Clementi to commit suicide. More than an excusable prank, it is plain wrong...