Privacy: A Review and Critique of the Literature

Abstract

It seems trite to say privacy is valuable. The Supreme Court of Canada has emphasized that privacy is worthy of constitutional protection. Scholars tend to agree that privacy is a fundamental moral and political concept. The consensus appears to end, however, when privacy in theory approaches privacy in practice. As a broad and evanescent concept, opinions differ as to what interests or values the protection of privacy is designed to achieve. The prevailing conceptions of privacy — six of which have been identified — fall prey to substantive criticisms from which, the author contends, they cannot recover. First, they suffer from intuitionism. That is, they offer an intuitive approach of what makes things "private" and incorrectly assume that we all approach privacy with a common understanding of the concept, or concepts, that the term "privacy" expresses. Further, the standing conceptions of privacy depend upon and serve the concept of privacy as liberty which itself is flawed. "Liberty" is seen as a form of licence, protecting — in its most crude form—an individual's right to do as he or she pleases. So viewed, it is not particularly surprising to see privacy attacked when competing "liberty" issues are at stake. Given the substantial criticisms with the prevailing conceptions of privacy, it may be worthwhile to reconsider the present paradigm against which privacy is conceived. It may be that privacy is better conceived of as an equality issue, not a liberty issue. The focus should shift away from conceptualizing privacy as a prerequisite for preventing invasions of various liberty interests to one of "maintaining conditions " that will make the exercise of those liberty interests possible. By limiting the ambit of privacy, we may indeed strengthen it.