Conflation of concepts

Commentators criticise the US Constitution's privacy right on many different levels.208 As has already been discussed, a major criticism that is frequently voiced is the alleged confusion of privacy with liberty. Parent, for example, shows deep concern:

The defining idea of liberty is the absence of external restraints or coercion. A person who is behind bars or locked in a room or physically pinned to the ground is unfree to do many things. Similarly, a person who is prohibited by law from making certain choices should be described as having been denied the liberty or freedom to make them. The loss of liberty in these cases takes the form of a deprivation of autonomy Hence we can meaningfully say that the right to liberty embraces in part the right of persons to make fundamentally important choices about their

206 A. Meisel, 'A Retrospective on Cruzan (1992) 20 Law, Medicine and Health Care 340.

207 It is interesting to note, for example, that despite the Supreme Court's rejection of a privacy analysis in Bowers v. Hardwick, the Georgia State Supreme Court later struck down the sodomy law as 'violative of the privacy rights protected by the state's own constitution'; see T. M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York, Oxford University Press, 1999), pp. 192-3.

208 L. Henkin, 'Privacy and Autonomy' (1974) 74 Columbia Law Review 1410, has argued that Griswold and its progeny have given rise to 'an additional zone of autonomy of presumptive immunity to governmental regulation'. This constitutional right of privacy, he considers, 'may not add much protection to "traditional value privacy"', 1424-5. A similar criticism has been advanced by H. Gross, 'Privacy and Autonomy', in J. Feinberg and H. Gross (eds.), Philosophy of Law, 2nd edn (Belmont, CA, Wadsworth, 1980), pp. 246-51.

lives and therewith to exercise significant control of different aspects of their behaviour. It is clearly distinguishable from privacy, which condemns the unwarranted acquisition of undocumented personal knowledge. (emphasis added: Parent's definition of the concept of privacy)209

Parent is of the view that all of the US constitutional privacy cases 'conflate the right to privacy with the right to liberty'.210 And, while one may not agree with his particular definition of privacy, his point on confusion of concepts is valid none the less.211 DeCew offers the following explanation: 'Given early association of a legal right to privacy as a right to be let alone and the well-known explanation of a concept of negative liberty in terms of freedom from interference, it is hardly surprising that privacy and liberty should often be equated.'212

There is, however, an additional problem which stems from the fact that although one may accept wholeheartedly that privacy and liberty as defined by Parent are completely separate, it does not necessarily follow that the two concepts raise issues wholly unconnected with each other. Furthermore, as DeCew points out in relation to the US cases, 'it is not at all clear that Parent has shown that the constitutional privacy cases involve no "genuine" privacy interests'.213

Clearly, however, the two concepts are by no means synonymous. As DeCew herself comments, it is simple to show how a notion of privacy can be shown to be distinct from that of liberty. She offers the example of an individual's privacy being constantly invaded by surreptitious surveillance of which she is unaware, thereby having no effect on her liberty. To this could be added the example of genetic information gathered about an individual through testing of her relatives when the individual in question is unaware that knowledge about herself has been generated. Both of these examples involve invasion of the private sphere yet entail no impingement on liberty. Indeed DeCew states: 'While the word "privacy" could be used to mean freedom to live one's life without governmental interference, the [US] Supreme Court cannot so use it since such a right is at stake in every case. Our lives are continuously limited, often seriously, by governmental regulation.'214

209 Parent, 'Privacy, Morality and the Law', 274-5. 210 Ibid., 284.

211 Although this is by no means altogether novel; see, for example, H. Gross, 'Privacy and

Autonomy', Nomos XIII, 180-1, and Henkin, 'Privacy and Autonomy'.

212 DeCew, 'The Scope of Privacy in Law and Ethics', 162.

In fact the Supreme Court has expressly rejected this idea.215 However, we can once again accept that perhaps this particular conflation of privacy with liberty is wrong, yet this does not necessitate that we reject completely the possibility of a relationship between the two concepts. Just as DeCew gives examples of privacy issues that do not involve liberty, and vice versa, she equally gives examples of autonomy that exclude all mention of privacy.216 She qualifies this immediately, however, by acknowledging

[that] a subset of autonomy cases, certain personal decisions regarding one's basic lifestyle, can plausibly be said to involve privacy interests as well. They should be viewed as liberty cases in virtue of their concern over decision-making power, whereas privacy is at stake due to the nature of the decision. More needs to be said about which decisions and activities are private ones, but it is no criticism or conflation of concepts to say that an act can be both a theft and a trespass. Similarly, acknowledging that in some cases there is both an invasion of privacy and a violation of liberty need not confuse those concepts.217

She also comments that 'loss of privacy can diminish freedom. Nevertheless defending privacy cannot always protect liberty.'218

What a defence of privacy can do, however, is protect some forms of liberty; principally those relating to non-interference with the personal sphere of individuals' lives. This is true for autonomy and the same can be said of confidentiality in the case of personal information. This point cannot be stressed too strongly. Many commentators who concern themselves with the concepts of liberty or autonomy face problems of ideological confusion, difficulty of definition and ambiguities of scope. Beauchamp and Childress, for example, point out that autonomy is seriously conceptually confused - it is 'not a univocal concept in either ordinary English or contemporary philosophy and needs to be refined in light of particular objectives'.219 Similarly, Dworkin considers a plethora of definitions of autonomy offered by writers in that field, almost none of

215 Paris Adult Theatre I et al. v. Slaton, District Attorney, etal. 413 US 49 (1973). DeCew makes this point in 'The Scope of Privacy in Law and Ethics', 163-4.

219 T. L. Beauchamp and J. F. Childress, Principles of Biomedical Ethics, 5th edn (New York,

Oxford University Press, 2001), p. 58.

which is in conformity with any other.220 The same is true in the context of liberty. For example, Berlin has noted that 'Almost every moralist in human history has praised freedom. Like happiness and goodness, like nature and reality, the meaning of this term is so porous that there is little interpretation that it seems able to resist.'221

In the light of this, it is important to recognise the fact that the concepts of liberty, autonomy and privacy are interrelated. Indeed, we can go as far as to say that they are interdependent, each relying on the other to fulfil its true function in the most effective way possible.222 Consider the impossibility of making autonomous choices without a degree of freedom from interference.223 Consider the residual value of liberty if life choices are never respected. And, consider whether it is feasible to be truly free or fully autonomous without some element of privacy.

Neither liberty nor autonomy can properly fulfil their function or potential in protecting individuals and their interests without a concomitant commitment to a respect for privacy. Each of these concepts performs the same function, albeit in different ways: each represents an expression of the fundamental respect that a liberal society has for its citizens. However, each is also open to criticism as ill-defined, anti-communitarian and conceptually obfuscated. This having been said, it may be that we see liberty and autonomy as ends in themselves rather than as means to an end,224 while we may view privacy purely as a device to reach a certain end. Even so, it is not necessary to show privacy to be

220 Dworkin, The Theory and Practice of Autonomy (Cambridge, Cambridge University Press, 1988).

221 I. Berlin, Four Essays on Liberty (Oxford, Oxford University Press, 1969), p. 121.

222 This is supported inter alia by R. B. Hallborg, 'Principles of Liberty and the Right to Privacy' (1986) 5 Law and Philosophy 175, who argues for a view of privacy that is deduced from fundamental principles of liberty. This he does 'in order to obtain a right to privacy which is not easily defeasible, and a right which ought to be a permanent part of our legal system'. That is, he sees the essence and value of privacy as being derivative.

223 Greenawalt has argued, for example, that 'Given a society in which many life-styles and points of view evoke negative reactions if publicly known, a substantial degree of freedom from observation is essential if there is to be any genuine autonomy; and real choice also depends on the ability of persons to enjoy states of privacy without intrusion'; see J. H. F. Shattuck, Rights of Privacy (New York and Skokie, IL, National Textbook Company in association with American Civil Liberties Union, 1977), p. 199. The original version of this material is to be found in K. Greenawalt, 'Privacy and its Legal Protections' (1974) 2 Hastings Center Studies 45.

224 R. A. A. McCall-Smith, 'Beyond Autonomy' (1997) 14 Journal of Contemporary Health Law and Policy 23, 30ff.

a fundamental and ultimate value of itself in order to stake a valid claim to its protection. As Gavison points out,

Privacy has as much coherence and attractiveness as other values to which we have made a clear commitment, such as liberty. Arguments for liberty, when examined carefully, are vulnerable to objections similar to the arguments ... [against] privacy, yet this vulnerability has never been considered a reason not to acknowledge the importance of liberty, or not to express this importance by an explicit commitment so that any loss will be more likely to be noticed and taken into consideration.225

But, for Gavison, the case for an explicit commitment to privacy is made by pointing out the distinctive functions of privacy in our lives. Thus, while privacy might well be complementary to autonomy and liberty, and while it might have as valid a response to criticisms as these related concepts, the strongest case for privacy protection appears when we can identify areas of our lives that are most appropriately described in terms of privacy. Are there, then, specific functions for privacy to perform over and above those constructs that are well established? It is submitted that this is indeed the case in the context of genetic information.

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