In 1948, George Orwell finished writing a novel about the “super state” of Oceania. The people of Oceania had no privacy. All public, isolated and private spaces were filled with cameras and microphones listening and watching every conversation, even what one had for dinner. Orwell had no title for the book. He decided to simply invert the last two digits of the year in which he wrote the book – he called it 1984. In so doing, he prophesied about the communications revolution among other advances of the 20th century that would determine the ways of life in 1984 and (now) arguably today.
That same year (1948), the United Nations declared privacy an inalienable and universal human right. Since then, numerous regional human rights instruments have been enacted to protect the right to privacy as a fundamental right. Additionally, over eighty countries worldwide have now enshrined privacy rights for individuals in their constitutions and other municipal laws and regulations.
Seventy-Three years later, Orwell must have had the foresight of “religious” prophecy. The world has witnessed unprecedented modern debates about technology, privacy, and personal freedom. Paul Schwartz, a leading international expert on information privacy and law writes that modern computing technologies and the internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Is this an imminent threat to privacy? But, what is privacy? Scholars have asked, “How valuable is privacy and how do we assess its value?” Why should we seek privacy if there is nothing to hide? This article seeks to answer some of these questions.
According to Privacy International, an organization that focuses on privacy rights globally, privacy is a fundamental right, essential to autonomy and the protection of human dignity, serving as the foundation upon which many other human rights are built. Traditionally, privacy was interpreted mostly in the physical sense- relating to the confines of home and the interception of communications. However, as the advancement of the internet and electronic communication media took center stage, a new threat emerged, with the massive information collection and sharing, including personal data. Relatedly, governments have said that if you’ve got nothing to hide, you’ve got nothing to fear especially as a law-abiding citizen. This, on the face of it sounds logical especially in the context of fights against acts of terror which have plagued cities and nations. From Nairobi, Kampala to New York and London. There is some truth to this view.
Richard Posner in his book, The Economics of Justice, contended that privacy rights involve the right to conceal dishonorable facts about oneself. He further writes that people want more power to conceal information about themselves that others might use to their disadvantage. But this is only a restricted way of looking at privacy. It is much wider than the concealment of “regrettable” parts of our lives.
There is considerable debate within scholars and practitioners about how to specifically define privacy. Some write that it is the right to be let alone, while others state that it must be conceptualized within information access or intimate decisions. However, privacy cannot be limited to these circumstances. Professor Solove, of George Washington University Law School, one of the world’s leading experts in privacy law argues that social security numbers, political affiliations and religious beliefs, may not be intimate, but may be regarded as private. Therefore, there seems to be a universal conclusion that privacy cannot be reduced into one catch sentence but it has many facets.
He states that privacy affects the power relations between people and the establishments of the modern state. Professor Solove provides a wider conception and categorization of privacy as opposed to a single definition. Privacy includes surveillance– have you ever wondered about the “cloud” and how all that information about you is really stored? The google photos backed up on your phone or the photos and videos stored on the “icloud”, your laptop or phone camera- all these are avenues that could easily result into a breach of your privacy. Or, if the government has unlimited access to your call data that shows where you have been? Privacy also relates to information processing. For instance, when you apply for a job, can they ask you to mandatorily disclose your religious affiliations, race, tribe? Is that justifiable? It is imperative that one pays close attention to the information required as you fill in any application forms: whether it is about opening up a bank account or applying for your national identity card. Some of the information asked for is unjustifiable and lacks legal basis.
Information processing also covers who may collect personal information and what information may be deemed relevant. How may such information be transferred and what decisions can be made while using such information? Such information is powerful and can be used for targeted marketing and can even be used to influence elections as seen on different continents. For instance Cambridge Analytica’s involvement in the processing of Facebook users’ data to influence elections in the United States of America.
Privacy also entails information dissemination and intrusion. Do you need to consent to any sharing of your information? For instance, do we expect confidentiality from our lawyers or doctors? What if you found your medical history published online disclosing your illness or that of your parent? Shouldn’t you have autonomy over such information? What if someone shared information in breach of confidence that was expressly requested or implied from a personal relationship? What recourse may you have? Privacy also covers black mail and intrusion- a hacker peeping at you as you dress up through your laptop or phone camera. It could be as simple or as sophisticated as your electronic-mail company sharing your emails with the government.
Privacy is important because it safeguards one’s autonomy and dignity as an individual. It also protects societies from certain harms and is equally a matter of corporate governance for organizations. Robert Post, a Sterling Professor of Law at Yale Law School argues that privacy constitutes society’s attempt to promote rules of behavior, decorum, and civility. It promotes order in society. It can protect you from what the government can search and collect about you and whether your neighbor can sneak into your house physically or insert hidden cameras to spy on you. It protects you from odd questions about your beliefs, race or tribe which can be used to make a decision against you. It civilizes our society. Without law prescribing illegalities, we are in a state of anarchy and chaos where anyone can do as they please. Privacy protects the individual and the society simultaneously.
Even when one has nothing to hide, privacy is not simply about hiding what’s wrong. That’s an oversimplification of one of the most important rights. Privacy as argued, relates to your surveillance, how and what information you are required to disclose, whether your communications with your family, spouse can be in confidence. It relates to intrusion of your discretion while at home or at work. It involves whether a company can use or sell your information without consent. It is important that a stalker cannot access your personal information from your employer or cab driver.
Privacy is broad, and even though there is an inclination to view it as secondary, it is important to the functioning of society, business and the individual. One must ask themselves how they can achieve more privacy and how to demand for it from the people in positions of power that can influence these changes.
By Joel Basoga and Paul Epodoi
With special thanks to Christine Masiika Thembo and Esther Akullu