The Ramazzini Institute
for Occupational and Environmental Health Research   

Who Are We?

Moral Questions
Do We Have A "Right" To Privacy?

     In the last days of his administration, former President Bill Clinton issued new “sweeping” privacy rules - a set of comprehensive standards on medical data confidentiality. [Archives, See Volume Two, Number One. January 2001.] In his first month in office, citing procedural failures, President Bush’s administration reopened the record for a re-examination of the privacy measures. Of the questions being asked again, some are basic.
     Do we have a right to the privacy the rules intend to protect? What is this “right”, in any case, and where does it and other so-called “rights” come from?
     The reader ought to know that there are great philosophers of our own generation who would not claim that there are any universal moral rights. Bernard Gert is one, but he would regard violations of universal moral rules, such as: do not kill, cause pain, disable, or deprive of freedom and pleasure as equivalent to violations of the rights not to be killed, disabled, or deprived of freedom and pleasure. He claims that other rights, like the right to privacy, are the way society determines what counts as a violation of these moral rules, and that each society may interpret the rules and the rights differently. Yet such rights as the right to privacy “are useful ,” he believes, “as aids in determining, for a given society, what is regarded as a violation of one of [these] moral rules.” [1]
     In another, but far from entirely different view, basic human rights, the generic rights to freedom and life [or well being] derive from needs which if met, enable us to be human. These rights [like Gert’s moral rules] are not given us by any government or enterprise. We have always had them logically and as a result of the direction in which humans and all human community have been and are evolving: an Open Society that respects each of us and what is ours. [2]
     Evidence of this evolution was exhibited more than a century ago, when Louis Brandeis wrote about the need to protect privacy from invasion by the technologies of his time. Embedded in common law is the idea that personal privacy is our property. In the last generation, Justice William O. Douglas wrote a majority opinion for the Supreme Court that struck down state laws endangering this kind of property. He found in the American Bill of Rights our ownership of “zones of privacy.”
     Inherent in the Bill of Rights are ideas about this kind of property taken directly from a fertile dialog between English, Scottish, French and German philosophers during the social revolution, of which the passage of the Bill was a part. Immense social and political changes had been sweeping the Americas and Europe for generations, and would continue for generations to come. In fact, the revolution is still going on and has spread to every continent.
     John Locke had argued that as a matter of natural law all of us are not only equal, but independent. Our life, our health, our liberty and our possessions are the workmanship of God, and made to last during His, not another’s pleasure.
     Count Antoine-Louis-Claude Destutt de Tracy, whose commentary on a work of Montesqieu was translated from the French by his friend Thomas Jefferson, in the intellectual style of his generation, substituted “God” with “nature”, but the result is unchanged. “Thine” and “mine” become an important way of distinguishing ourselves , each of us given by nature with “inalienable, incommutable, and inevitable property, in their individuality and its faculties.” [3]
     How “inevitable” this development can be is a question. We have not yet reached a point in human development in which the course is irreversible. There is still choice. We can still become a society of human ants, and at times in human history, some communities have edged perilously close to that kind of social structure. As if it were a diseased state, often at great cost and sacrifice, the norms of the insect society have been rejected. They don’t fit the ideal of what most people want for themselves, their families and their neighbors. In this global evolution toward what is seen as the healthy state, personal privacy is a specification of basic rights, which while expressed differently in different cultures, are fundamentally the same among all people in every nation.
     Acting on this specification may result in conflicts between those rights which protect the individual, such as protecting the privacy of personal medical records, and those concerned with the duties of an employer, such as deriving information from medical records to protect other lives through the avoidance of health hazards thus made known. The conflicts are magnified by changing technologies that challenge a person’s right to privacy, reflected in the resolutions, that is, changing common law and [lately] legislated law, and administrative rules that implement them, such as those now being challenged..
     In our generation, the abuse of computerized health records pose still another challenge, not just to privacy, but to the evolving Open Society. These seemingly were resolved in part by the authority Congress gave to the Department of Health and Human Services to issue rules for protecting the privacy of these records. The conflict over what and how those rules should protect our privacy obviously is not a simple battle of contending economic interests. It is part of a complex struggle over the nature of future human society.

[3] For a brilliant analysis of this seminal cluster of events in the history of the Open Society, read Adrienne Koch’s “The Philosophy of Thomas Jefferson”. Quadrangle: Chicago 1964 (originally published by Columbia: New York 1943)