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PSUP Uncorrected Proofs PRIVACY RIGHTS Proofs PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:56 PS PAGE i Proofs PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:56 PS PAGE ii Adam D. Moore PRIVACY RIGHTS MORAL AND LEGAL FOUNDATIONS Proofs The Pennsylvania State University Press University Park, Pennsylvania PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:56 PS PAGE iii Library of Congress Cataloging-in-Publication Data Moore, Adam D., 1965– Privacy rights : moral and legal foundations / Adam D. Moore. p. cm. Includes bibliographical references and index. Summary: ‘‘Provides a definition and defense of individual privacy rights. Applies the proposed theory to issues including privacy versus free speech; drug testing; and national security and public accountability’’ —Provided by publisher. ISBN 978-0-271-03685-4 (cloth : alk. paper) 1. Privacy, Right of—United States. 2. Data protection—Law and legislation—United States. 3. Public records—Access control—United States. 4. Freedom of speech—United States. 5. Drug testing—Law and legislation—United States. 6. Intellectual property—United States. I. Title. KF1262.M66 2010 342.7308Ј58—dc22 2009053062 Copyright ᭧ 2010 The Pennsylvania State University All rights reserved Printed in the United States of America Published by The Pennsylvania State University Press, University Park, PA 16802-1003 It is the policy of The Pennsylvania State University Press to Proofs use acid-free paper. Publications on uncoated stock satisfy the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Material, ANSI Z39.48-1992. This book is printed on Natures Natural, which contains 50% post-consumer waste. PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:57 PS PAGE iv For Amy, Alan, and Kimberly Proofs PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:57 PS PAGE v Proofs PSUP Uncorrected ................. 17691$ $$FM 03-24-10 11:48:57 PS PAGE vi CONTENTS Acknowledgments ix 1 Introduction 1 2 Defining Privacy 11 3 The Value of Privacy 33 4 Justifying Privacy Rights to Bodies and Locations 57 5 Providing for Informational Privacy Rights 81 6 Strengthening Legal Privacy Rights 99 7 Privacy, Speech, and the Law 133 Proofs 8 Drug Testing and Privacy in the Workplace 153 9 Evaluating Free Access Arguments: Privacy, Intellectual Property, and Hacking 175 10 Privacy, Security, and Public Accountability 189 Select Bibliography 217 Further Readings 227 Index 237 PSUP Uncorrected ................. 17691$ CNTS 03-24-10 11:48:59 PS PAGE vii Proofs PSUP Uncorrected ................. 17691$ CNTS 03-24-10 11:48:59 PS PAGE viii ACKNOWLEDGMENTS Much of the work on Chapters 2 through 4 of this manuscript was com- pleted while I was a summer fellow at the Social Philosophy and Policy Center, Bowling Green State University, in the summer of 2002. A short- ened version of Chapter 4, ‘‘Justifying Privacy Rights to Bodies and Loca- tions,’’ was presented at the fellows summer colloquia series. I would like to thank Fred D. Miller Jr., Ellen Frankel Paul, Jeffrey Paul, Travis Cook, and the other summer fellows Edward Feser, Richard Timberlake, and George Selgin for their suggestions and comments. I am grateful to Kim Moore for editing Chapters 1 and 2; Jay Hester for offering comments on Chapters 1 and 10; Scott Fields for editing Chapter 5; Peter Winn for provid- ing suggestions on Chapters 6, 7, and 10; and Sarah Bosarge for helping with the bibliography. I would like to thank Judith Wagner DeCew, James Stacey Taylor, and William Kline for reading and commenting on the entire manuscript—the critiques and suggestions offered by these reviewers have helped immeasurably. During the summer of 2004 and again in the fall of 2007 much of the material found in this work was presented and discussed in an upper- division undergraduate/graduate course at the University of Washington. I would like to thank the students who attended these classes for their astute Proofs comments and suggestions. Kris Unsworth and Elizabeth Jones deserve spe- cial mention. Chapter 5, ‘‘Providing for Informational Privacy Rights,’’ benefited sig- nificantly from being presented at the American Philosophical Association Meetings (March 23–27, 2005) and at the Conference on Informational Pri- vacy, April 27–28, 2007, University of San Diego Institute for Law and Pub- lic Policy. I am grateful to Judith Wagner DeCew, James Griffin, Amitai Etzioni, David Brink, Larry Alexander, Daniel Solove, Kenneth Himma, Richard Arneson, Don Dripps, Adam Kolber, Evan Lee, Orly Lobel, and Sam Rickless for providing criticisms and suggestions. Chapter 10, ‘‘Privacy, Security, and Public Accountability,’’ was presented at the American Philo- sophical Association’s Mini-Conference on Secrecy, March 22–26, 2006. Thanks to Tom Grassey, David Woolwine, Don Fallis, Kenneth Himma, PSUP Uncorrected ................. 17691$ $ACK 03-24-10 11:49:02 PS PAGE ix xACKNOWLEDGMENTS Alasdair Roberts, David Resnik, Philip Doty, Mark Alfino, and the other conference participants for their comments and criticisms. Parts of Chapters 2 and 3 appear in ‘‘Privacy: Its Meaning and Value,’’ American Philosophical Quarterly 40 (2003): 215–27; ‘‘Values, Objectivity, and Relationalism,’’ Journal of Value Inquiry 38 (2004): 75–90; and ‘‘Defin- ing Privacy,’’ JournalofSocialPhilosophy39 (2008): 411–28.Sectionsof Chapters 3 and 4 and the conclusion of Chapter 7 draw from material published in ‘‘Intangible Property: Privacy, Power, and Information Con- trol,’’ American Philosophical Quarterly 35 (1998). Parts of Chapters 5 and 10 were published in ‘‘Toward Informational Privacy Rights,’’ San Diego Law Review 44 (Fall 2007). I would like to thank the editors of these jour- nals for allowing me to present this material here. With homage to the genius of Lee, Lifeson, and Peart—these three started me thinking about philosophical topics, and they continue to in- spire. I would also be remiss if I didn’t thank my hockey buddies on the Fossils, who have provided the sorts of diversions necessary for productive academic life—Brian Basset, Jeff Caso, Brodie Klenk, Mark Megathlin, David Galloway, Johathan Suga, Dan Laronde, Gordon Trifts, Michael Tremblay, Ted Gay, Cameron Smith, Lorne Berns, Justin Richey, Steve Grant, John Putnam, Bill White, and David Mohr. Special thanks as well to my friends and loved ones who have supported me throughout the writing process—Walter James, Claus Po¨rtner, Bill Kline, Jay Hester, Scott Roth- well, Mark Van Hook, Ashley Hoyle, Nancy Moore, Scott Moore, Julie Moore, Alan Moore, Amy Moore, and Kimberly Moore. Finally, I would like to thank the editors at Penn State University Press— Sanford Thatcher, Laura Reed-Morrisson, and Andrew B. Lewis. Proofs PSUP Uncorrected ................. 17691$ $ACK 03-24-10 11:49:02 PS PAGE x 1 introduction Individuals have privacy rights. We each have the right to control access to our bodies, to specific places, and to personal information. Beyond control- ling access, individuals should, in large part, also determine how their own personal information is used. While control over access to bodies and places appears to be on firm ground, informational privacy is everywhere under siege. Corporations large and small engage in data-mining activities that capture massive amounts of information. Much of this information is about our daily activities—what was purchased, when, where, and for how Proofs much. Our mail boxes and e-mail accounts are then stuffed with an endless stream of advertisements and solicitations. Even more alarming are tele- marketers, who intrude upon our solitude. Financial information, phone numbers, and personal addresses of all sorts, whether accurate or not, are captured in databases and bought and sold to individuals, corporations, and government agencies. Beyond data mining, video surveillance, facial recognition technology, spyware, and a host of other invasive tools are opening up private life for public consumption. Physical or locational privacy, on the other hand, seems to enjoy stronger protection. Forcibly entering someone’s house or touching that person’s body without just cause is considered a serious moral and legal violation. Strengthened by property rights to houses and land and by walls, fences, and security systems, our physical selves appear quite secure—at PSUP Uncorrected ................. 17691$ $CH1 03-24-10 11:49:12 PS PAGE 1 2PRIVACYRIGHTS least compared to our personal information. In any case, individuals are more willing to trade informational privacy for security or economic bene- fits than physical privacy. The underlying assumption is that in relation to human well-being or flourishing, control over our bodies, capacities, and powers is more impor- tant than controlling who has access to facts about ourselves. I do not deny this—to be able to ‘‘create’’ the facts of my life I must first be in exclusive control of my body, capacities, or private locations. It does not follow from any of this, however, that personal information control does not deserve protection. Similarly, a right to life, crudely defined as the right not to be killed unjustly, may be more essential or fundamental than physical prop- erty rights, yet we should not hastily conclude that lives deserve robust protection while property does not. In fact, without the moral authority to control physical objects in arrangements that support our lifelong goals and projects, a life may not be worth living. A similar point can be made with respect to our physical and informational selves. Being captured on video, audio, and financial data streams is almost as threatening to individual autonomy and well-being as losing physical control of bodies, capacities, and private spaces.1 Consider the following thought experiment. One day we are told that the earth is dying—in a few weeks some event will deprive us of oxygen or sunlight. However, we are not to worry. Two advanced humanoid societies have been discovered and are willing to take us in. We have a once-and- for-all choice to go live with the Fencers or the Watchers.
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