The question of privacy arises most notably with the Aristotelian distinction between the public sphere of governance and its separation from the private sphere of individuals concerning domestic life and family. Other than in philosophical discussions, the concept has a wide range of interpretation in many cultures.
Some interpretations might seem quite obscure and deal with moral relativism, as in how personal possessions might form different sorts of consensus depending on the degree and nature of social interaction in different societies. Although the advent of modernity has led to the proliferation of a norm-based approach to society based on the hierarchical set-up, which tends to universalize a society before traditionalizing it, privacy still remains an issue with obscure definitions.
It is only in the formal space that privacy is somewhat clearly defined, as in the case of information in a public forum that may or may not be private. In the informal space is still difficult to define the concept and much is dependent on interpretations and value judgments, such that no universal law can substantively be applied to all cases.
The law in India does not provide for a clearly demarcated right to privacy, and includes it as a limited right under the various rights provided in the Constitution. The right exists, but is burdened with numerous reasonable restrictions that prioritize national interest, foreign policy, national security, law and order, public morality, contempt of court, defamation and incitement to offences as under Article 19(2) of the Constitution.
As per the law, the state reserves the right to withhold the right to privacy if there is an issue of national interest superior to it. The right is also based on consent, such that the right is provided to those who voluntarily demand it, unless there are compelling state interests. The court however, recognizes the right against the government in certain cases, especially if other fundamental rights have been undermined in cases with no compelling state interest.
Privacy thus is defined in the law in India in purely formal terms, and personal privacy can frequently come under the lens of the state’s interests and in the interests of other legal obligations and rights. What the law is unable to clearly define is the right to personal privacy.
Personal privacy, the anthropologist Clifford Geertz would argue, cannot even be based on cultural norms. In his work ‘The Interpretation of Cultures’ (1973), Geertz argues that culture does not determine human behaviour but rather is the context that provides a thick description. Geertz held that the study of culture is not one of an experimental science concerning laws but of an interpretive science in search of understanding. There can thus be patterns of behaviour but not behaviour itself, in that there cannot be objective wholes in human behaviour but rather subjective inferences that require documentation.
Schoeman in 1984 took up the question of the cultural relativism and formed two methods of interpreting this. In the first method, the question is asked as to whether the issue concerning privacy is universal or is it subject to cultural differences. The other method questions whether some aspects of human life are inherently private and others not so just conventionally (J. De Cew, 2013).
While society and culture can be a reference for prescribed modes of behaviour, the requirements of privacy imply autonomy in behaviour. Individual privacy thus mutates against any prescribed form of conduct such that an individual defines the self by oneself. The question thus is one of individual autonomy and its interface with society. The concept can be defined thus at multiple levels, one of the larger society, another of culture, and another at an individual level. Ideally, at no point can one level be prioritized over another.
After early summations in Aristotle’s notion of a separation between the public sphere and the private sphere, as a concept has proved notoriously elusive. Although historically the discussion is not uniform, treatises on the concept began to surface after privacy was defined under the law in America on moral grounds since the 1890s.
While some inferences looked at privacy morally, others treated it as a legal issue. Some arguments have even attempted to deny privacy while others have talked about the distinctions offered in motions around privacy.
In the second half of the 20th Century, philosophical discussions greatly proliferated as privacy laws were becoming more refined. Privacy in this period increasingly became defined in terms of information as the control over information of an individual or entity over the self.
When privacy was not defined in terms of information, it would usually be discussed with a concern towards human dignity and human rights. Privacy was also increasingly seen in terms of control over the access that others might have over an individual.
However, despite the need to respect individual autonomy, privacy also began to be seen in terms of its negative side. In this people with control over access to privacy could under the cloak of privacy protection, indulge in undesirable and illegal activities without any accountability.
This aspect has been a dominant feature among journalists, human rights activists, feminist thought, and alike that tries to lift the facade and install accountability among those with control over privacy. The dominant mode of discussion in contemporary times has been one of the influx of technology and the resulting expansion of the domicile under which privacy can be interpreted.
Technology and Privacy
Marshall Mc Luhan, the media theorist, referred to media technology as a prosthetic extending out from the human body (Mc Luhan, 1964). As technology continuously expands the minimum scope for human interaction, as its prosthetic of interaction, the more are the lines going to get blurred between the public and the private.
The prosthetic shapes an individual’s interaction with the objective reality of the habitat he inhabits, and is one that is the logical realization of the environment he inhabits. Media technology exists in terms of a mirror to the individual and is an extension of the self in a public substance. Technology thus mediates an individual’s psychological profile as the prosthetic of interaction by re-enacting the individual’s interaction in the media technology’s own formal configurations.
Later in the 20th Century, the Fourth Amendment in the US legally undertook to protect individuals from electronic surveillance and wiretaps. The massive amounts of information available in digital format makes many individuals suspicious of the role of technology in invading personal privacy.
Previously clandestine operations such as Carnivore by the FBI and Echelon as a global satellite network that preyed on digital interactions have been uncovered that add to the suspicion among individuals over the technological assimilation of privacy. Technology here takes control over access to privacy away from the autonomous individual and places it at the hands of specialists.
Technology thus acts to re-enact individual interaction and re-configures it according to its own forms on the basis of control over access. The continuous progress and innovation in technology makes it extremely difficult for legal definitions to be assigned to the evolving interactions.
Seemingly benevolent technological apparatus such as tracking technology in use by medical researchers can be a tool for more malevolent intent. The greatest problem with this situation is the inability of legal apparatus to be updated with new developments. Given how the concept is based on individual autonomy, should not the legal apparatus at least protect privacy in this definition?
Without this definition, and the accompanying corpus of rights, the concept shall continue to be an issue ill defined in modernity. Thinking must move ahead from defining privacy only in terms of its interaction with laws and the society at large to define it also in terms of culture and individual autonomy.