Unpopular Privacy: What Must We Hide?

By Anita L. Allen | Go to book overview

PREFACE

I first began writing this book a dozen years ago.1 My plan was to use diverse examples, drawn from contemporary US privacy and data protection law, to raise philosophical questions about legal coercion and paternalism under liberalism. In a liberal society, “freedom is normatively basic, and so the onus of justification is on those who would limit freedom, especially through coercive means”; moreover, “political authority and law must be justified, as they limit the liberty of citizens.”2 But around that time privacy law in North America and Europe was entering an uncertain, rapid-growth phase.3 In the United States, major federal Internet, financial, and medical privacy laws were on the horizon, including the Children’s Online Privacy Protection Act, the GrammLeach-Bliley Financial Services Modernization Act, and the Health Insurance Portability and Accountability Act. The European Union had enacted its historic data directive in 1995, dictating a harmonized set of legal reforms within member states.4 It was widely anticipated that the directive would transform information privacy practices far beyond European borders. The European Union expanded its data protection policymaking in succeeding years, with additional directives concerning telecommunications, electronic data transmission, and data retention. In light of all of these developments, I decided to set my manuscript aside and wait for the legal dust to settle. In the meantime, I published short papers exploring topics I wanted to treat more extensively as essays in this book.5

The terrorist attacks of September 11,2001 kicked up legal dust, too. The feeling in the United States was that the world had been remade and needed a reinvigorated regime of security and law enforcement. Even before September 11, some commentators were concluding that the United States had become a Kafkaesque bureaucracy evoking “impotence, anger, and anxiety”; or, worse, a surveillance society seemingly modeled on Jeremy Bentham’s panopticon or torn from the pages of George Orwell’s novel 1984.6 Hastily enacted and reauthorized with modest amendments a few years later, the USA PATRIOT Act permitted new levels of government surveillance.7 Now government was expressly asking members of the public, especially when they traveled, placed phone calls, or used the Internet, to give up previously fostered expectations of physical and informational privacy. Since the late nineteenth century, fear of potentially invasive technologies, from cameras to telephones and computers, had been major factors prompting growth in privacy law. After 2001, privacy advocates and civil libertarians

-ix-

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Unpopular Privacy: What Must We Hide?
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface ix
  • Part One - Normative Foundations 1
  • 1- Privacies Not Wanted 3
  • Part Two - Physical Privacies- Seclusion and Concealment 27
  • 2- Seclusion 29
  • 3- Modesty 47
  • 4- Nudity 78
  • Part Three - Information Privacies- Confidentiality and Data Protection 97
  • 5- Confidentiality 99
  • 6- Racial Privacy 123
  • 7- The Electronic Data Give-Away 156
  • 8- Popular Paternalism 173
  • Afterword 195
  • Notes 199
  • Index 249
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