Is Privacy A Lost Right?

Given the fast-paced advances in technology, the way

privacy is interpreted, protected and violated in most parts of the
world has changed tremendously, constantly adjusting and flowing
with the liquidity of time and science. With the growing
sophistication and unusual brazenness that now pervades the
nocuous crime world, the combined forces of science, technology,
environment, and society have also seemed unrelenting in
disrobing individuals of their privacy. Specifically, with the surge
in global insecurity and terrorism, especially since after 9/11 attack
on the United States, privacy right has become inherently
intertwined with information technology, thus exacerbating its
retention and observance prospects in many a clime.1

Interestingly, new technologies have not only increased the

way private information can be created, they have also opened up
incredibly new ways to gather, store, and share private data – a
development that fuels the growing concerns for public safety, a
responsibility that often gives more than a migraine to personnel in
the ever-vigilant intelligence community. Though there is an
absence of consensus on the global level of what privacy truly
means and how it should be protected, there is no disagreement as
to the fact that privacy issues usually hit where it hurts most,
1
See Harry Henderson’s Privacy in the Information Age, 2006.
making it a hot potato issue in today’s fast-changing, surveillance-
crazy world. This, perhaps, explains the reason behind Alan
Westin’s submission that new technologies have succeeded in
altering the balance between privacy and its disclosure, and that
privacy as an individual right may hamstring government from
performing its surveillance and security cum protection duties.2 He
describes four states of privacy as follows: solitude, intimacy,
anonymity, and reserve. And since 1890 when protection of
individual rights was the focus of Warren and Brandeis’s writings,
being the first individual effort advocating such rights in the US,
privacy seemed to have rested on the plank of natural rights theory
or what Judge Cooley called the “right to be let alone.”3

But the social worth of privacy has further embarked on the

upward curve in this modern time, now being reframed both as a
collective value and a fundamental human right that no free society
or proper democracy can do without. In his phenomenal book, The

2
An emeritus professor of public law and government at Columbia, Alan Westin is renowned for his
significant contributions to consumer data privacy and protection. He defined privacy as an individual’s
right “to control, edit, manage, and delete information about them (selves) and decide when, how, and to
what extent information is communicated to others.” His Privacy and Freedom (1967) and Databanks in a
Free Society (1972) were pioneering works that shaped privacy legislation in the US and helped launch
privacy movements in many other countries.

3
Though mobile phone was nonexistent at the time, the famous article of Samuel D. Warren and Louis D.
Brandeis was in response to technological developments (brought about by the invention of the printing
press) such as photography and sensationalist journalism which made it possible to be “shouted from the
rooftops” any information that was previously hidden and private. See 4 Harvard Law Review 193 (1890).
It is available at http://www.law.louisville.edu/library/collections/brandeis/node/225 (accessed on
December 9, 2010)
Limits of Privacy, Etzioni recommends a communitarian approach
to how society construes and handles the privacy paradox, insisting
that there is the other side to the privacy equation. As the world
increasingly grapples with significant public safety and public
health deficits, he enjoins “immoderate champions of privacy” to
drop their “rhetorical excesses” and embrace an approach that is
nourished by the social philosophy that seeks to strike a balance
between rights of individuals and social responsibilities, between
liberty and the common good so that society will not lean too far
towards one direction at the painful expense of the other. He crafts
it succinctly thus:4

It is about our investment in the common good, about our profound

sense of social virtue, and most specifically about our concern for
public safety and public health. Although we cherish privacy in a
free society, we also value other goods. Hence, we must address the
moral, legal, and social issues that arise when serving the common
good entails violating privacy… We may be tempted to for a
moment to employ a double standard, to seek to enshrine our own
privacy while denying that of others, perhaps on the grounds that
“we” are innocent but “they” are suspect… In principle and in
practice, there is no escaping the basic tension between our
profound desire for privacy and our deep concern for public safety
and public health.

In other words, in the face of “clear and present danger” or “a

significant and macroscopic threat” to the common good, a
4
His seminal work richly illuminates the volatile issue of privacy and recommends a middle-of-the-road
approach towards handling issues arising from it. While preaching a balance between individual liberty
and the common good, Amitai Etzioni concludes that the latter’s interest should always override when a
society faces clear and significant danger that can undermine its security. Read further in Amitai Etzioni’s
The Limits of Privacy, 1999.
communitarian society should not hesitate to limit individual
privacy rights because anything contrary hobbles the ability of
public authorities from providing constitutionally guaranteed
security of life and property to the citizenry.5 But if Etzioni is
diplomatic in his propositions, Holtzman is very emphatic in his
own “commandments.” In this crowded information age, he
maintains, privacy is at the whip end of information technology.
Says he:6

Privacy is a universally cherished prerogative that isn’t much of a

right at all. Few laws protect our seclusion, and they weaken every
year. Our privacy is shrinking quicker than the polar ice cap;
technology is eroding it faster than the legal system can protect it.
This trend cannot be reversed in any obvious way. Privacy, as we
know it today, is lost. At its most basic level, privacy is about
information control – who owns knowledge about us? The German
term Informationelle Selbstbestimmung, which means
“informational self-determination,” suggests that we control our
own information. But today, our information has slipped out of our
control, and as a result we have lost our privacy. The loss has been
caused by the most significant society-impacting science of our
generation – computerized technology.

Holtzman however acknowledges that privacy violations have a

high proclivity to hurt and limit both the individuals and society at
large. While insisting that a tangled web of regulatory legislation
will not guarantee privacy rights as citizens want, he advocates “a
5
See Etzioni as cited above.

6
Also a great book on the subject matter, David H. Holtzman’s Privacy Lost - How Technology is
Endangering Your Privacy frankly admits that privacy is imperiled with intrusive modern technologies. His
taxonomy of violations, seven sins against privacy and ethical commandments to deal with privacy issues
are highly informative. See Privacy Lost - How Technology is Endangering Your Privacy, 2006.
common sense and thoughtful methodology” for any society and to
fall back on legal permissibility only as a last resort, not as a state
policy. But this fails to strike the right chord among civil
libertarians who smell danger in the propositions of
communitarians. According to libertarians, any arrangement that
allows the state to rein in the right of citizenry on whatever
grounds is both deleterious and repugnant, reasoning that a tyrant
may come into government someday and abuse the system with
abandon. Zimmermann, a cyber libertarian, expresses the fear
thus:7

Sometimes in a democracy bad people can be elected, and if

democracy is allowed to function normally, these people can be
taken out of power by the next election. But if a future government
inherits a technology infrastructure that’s optimized for
surveillance, where they can watch the movements of their political
opposition, they can see every bit of travel they could, every
financial transaction, every communication, every bit of e-mail,
every phone call, everything could be filtered and scanned and
automatically recognized by voice technology and transcribed….

Conclusion

Obviously, every human being and unit of social structure

desires to be safe at all times. But it is also imperative to balance a
society’s security aspirations with respect for privacy and other
fundamental human rights of citizens, using the lens of utilitarian
theory that seeks to give “the greatest good to the greatest number
7
Phillip Zimmermann, as cited in Amitai Etzioni’s The Limits of Privacy.
of people.” As Etzioni admonishes, society cannot but serve
multiple needs and wants, unlike ideologies which center on one
core value. This, therefore, entails some trade-offs between privacy
and the common interest because some measure of good has to be
forgone for the sake of another.8 This is a reality Africans have to
live with. According to Keenan, technology is not just an enemy of
privacy; it is also its closest friend, meaning that technology can be
deployed into protecting privacy or holding accountable those who
abuse it by implementing “high-tech accountability systems that
monitor the monitors and watch the watchers.”9

And since the law courts are yet to redraw the ground rules
over this important issue, enacting freedom of information act will
go a long way in dismantling the air of secrecy that pervades
African governments. Though it has to be acknowledged that
having this important piece of legislation is not a one-dose
inoculation, it is trite that the freedom of information act is capable
of restoring a semblance of people’s trust in official actions and
allaying fears that registering mobile telephones will make it
become a tool for oppressing political opponents and imaginary
enemies of the state. As for leaders who abuse the sacred trust

8
See Anne Wells Branscomb’s Who Owns Information?: From Privacy to Public Access, 1994.

9
Further readings in Kevin M. Keenan’s Invasion of Privacy, 2005.
reposed in them to suit for their own selfish interests, they should
be made to face the full wrath of the law.