wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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quality of rising into sight from some darker ground which must
remain hidden if it is not to lose its depth in a very real, non-
subjective sense.334
In other words, solitude does not detract from a rich public life but in
fact enhances it. Solitude enables people to rest from the pressures of
living in public and performing public roles.335 Too much envelopment
in society can be destructive to social relationships. W ithout refuge
from others, relationships can become more bitter and tense.336 More
over, a space apart from others has enabled people to develop artistic,
political, and religious ideas that have had lasting influence and value
when later introduced into the public sphere.337
Generally, U.S. courts recognize intrusion-upon-seclusion tort ac
tions only when a person is at home or in a secluded place.338 This ap
proach is akin to courts recognizing a harm in surveillance only when it
is conducted in private, not in public. However, beyond solitude, people
often expect space apart from others even when they are with other
people. According to sociologist Irwin Altman, we need “personal
space,” a land of zone or aura around us to separate ourselves from
others. Spatial distance provides for “comfort, ease, and relaxation.” Ani
mals maintain “remarkably constant” distances from other animals of the
same species. In one series of studies, people placed themselves very
A Taxonomy o f Privacy
165
close to others, which sparked strong reactions of hostility and unease.
T he intruded-upon subjects quickly reestablished appropriate spatial
boundaries.339 Robert Post observes that the tort of intrusion upon
seclusion upholds rules of civility and social respect. We each have cer
tain “territories of the self,” and norms of civility require that we respect
others’ territories. We can, however, “invite intimacy by waiving our
claims to a territory and allowing others to draw close.”340
Some courts are beginning to recognize realms of exclusion where
people can shut others out, even in public.341 Realms of exclusion are not
realms of seclusion; they are structures for personal space that allow us to
interact with others without the interference of the rest of society. Com
munication and association with others often require freedom from in
trusion. For example, when we talk to a friend in a restaurant or another
public place, we still need space from other people in order to converse
freely. In Sanders v. American Broadcasting Companies, an undercover re
porter accepted wrork as a “telepsychic” and surreptitiously videotaped
conversations she had at work with her coworkers, including Sanders.
Even though Sanders worked in a cubicle where he could readily be seen
and overheard by other employees, the court concluded that he had a vi
able privacy interest: “[T]he concept o f‘seclusion’ is relative. The mere
fact that a person can be seen by someone does not automatically mean
that he or she can legally be forced to be subject to being seen by
everyone.”342
Decisional Interference
I avoid looking down at my body, not so much because it’s
shameful or immodest but because I don’t wrant to see it. I don’t
want to look at something that determines me so completely.
—Offi-ed in Margaret Atwood, The Handmaid’s Tale (1986)i4i
In 1965, in Griswold v. Connecticut, the U.S. Supreme Court held that
the Constitution prohibited the government from banning the use of
contraceptives by married couples. Although the wrord “privacy” is not
explicitly mentioned anywhere in the Constitution, the Court reasoned
that the Constitution provides for a “right to privacy” in the “penum
bras” of many of the amendments in the Bill of Rights. T he Court
166
A T a
x
o
n
o
m y o f P
r i v a c y
noted that “[vjarious guarantees [by the Bill of Rights] create zones of
privacy.”344
In Eisenstadt v. Baird, the Court extended the reasoning in Griswold
to the use of contraceptives by unmarried persons as well. The Court
explained that privacy “is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or
beget a child.”345 Subsequently, the Court held in Roe v. Wade that the
right to privacy “encompass[es] a woman’s decision whether or not to
terminate her pregnancy.”346
Griswold, Eisenstadt, and Roe all protect against what I call “decisional
interference”—that is, governmental interference with people’s deci
sions regarding certain matters in their lives. These cases extend to de
cisions relating to sex and sexuality, as well as parents’ child-rearing de
cisions.347
Many commentators have argued that the language of privacy is in
appropriate for decisional-interference cases because they primarily
concern a harm to autonomy and liberty, not to privacy7. Thus Lau
rence Tribe argues that the central issue in Roe v. Wade is “not privacy7,
but autonomy7.”348 Similarly7, Louis Henldn contends that the Supreme
Court’s substantive due process right-to-privacv cases are about pro
tecting a “zone of autonomy7, of presumptive immunity to govern
mental regulation,” not about protecting privacy.349 W hat relationship
does decisional interference have to the other forms of privacy in the
taxonomy?
The decisional-interference cases are deeply connected to informa
tion privacy. Legal scholar Neil Richards notes that the “canonical ‘de
cisional’ privacy case law has long had a substantial informational com
ponent.” Griswold “relied extensively upon several lines of cases now
commonly considered as falling on the information privacy side of the
informational/decisional binary of information privacy scholars.”330 In
particular, the Supreme Court explained in Whalen v. Roe that the con
stitutionally protected “zone of privacy” extends not only to the “in
terest in independence in making certain kinds of important decisions”
but also to the “individual interest in avoiding disclosure of personal

quality of rising into sight from some darker ground which must

remain hidden if it is not to lose its depth in a very real, non-

subjective sense.334

In other words, solitude does not detract from a rich public life but in

fact enhances it. Solitude enables people to rest from the pressures of

living in public and performing public roles.335 Too much envelopment

in society can be destructive to social relationships. W ithout refuge

from others, relationships can become more bitter and tense.336 More

over, a space apart from others has enabled people to develop artistic,

political, and religious ideas that have had lasting influence and value

when later introduced into the public sphere.337

Generally, U.S. courts recognize intrusion-upon-seclusion tort ac

tions only when a person is at home or in a secluded place.338 This ap

proach is akin to courts recognizing a harm in surveillance only when it

is conducted in private, not in public. However, beyond solitude, people

often expect space apart from others even when they are with other

people. According to sociologist Irwin Altman, we need “personal

space,” a land of zone or aura around us to separate ourselves from

others. Spatial distance provides for “comfort, ease, and relaxation.” Ani

mals maintain “remarkably constant” distances from other animals of the

same species. In one series of studies, people placed themselves very

A Taxonomy o f Privacy

165

close to others, which sparked strong reactions of hostility and unease.

T he intruded-upon subjects quickly reestablished appropriate spatial

boundaries.339 Robert Post observes that the tort of intrusion upon

seclusion upholds rules of civility and social respect. We each have cer

tain “territories of the self,” and norms of civility require that we respect

others’ territories. We can, however, “invite intimacy by waiving our

claims to a territory and allowing others to draw close.”340

Some courts are beginning to recognize realms of exclusion where

people can shut others out, even in public.341 Realms of exclusion are not

realms of seclusion; they are structures for personal space that allow us to

interact with others without the interference of the rest of society. Com

munication and association with others often require freedom from in

trusion. For example, when we talk to a friend in a restaurant or another

public place, we still need space from other people in order to converse

freely. In Sanders v. American Broadcasting Companies, an undercover re

porter accepted wrork as a “telepsychic” and surreptitiously videotaped

conversations she had at work with her coworkers, including Sanders.

Even though Sanders worked in a cubicle where he could readily be seen

and overheard by other employees, the court concluded that he had a vi

able privacy interest: “[T]he concept o f‘seclusion’ is relative. The mere

fact that a person can be seen by someone does not automatically mean

that he or she can legally be forced to be subject to being seen by

everyone.”342

Decisional Interference

I avoid looking down at my body, not so much because it’s

shameful or immodest but because I don’t wrant to see it. I don’t

want to look at something that determines me so completely.

—Offi-ed in Margaret Atwood, The Handmaid’s Tale (1986)i4i

In 1965, in Griswold v. Connecticut, the U.S. Supreme Court held that

the Constitution prohibited the government from banning the use of

contraceptives by married couples. Although the wrord “privacy” is not

explicitly mentioned anywhere in the Constitution, the Court reasoned

that the Constitution provides for a “right to privacy” in the “penum

bras” of many of the amendments in the Bill of Rights. T he Court

166

A T a

x

o

n

o

m y o f P

r i v a c y

noted that “[vjarious guarantees [by the Bill of Rights] create zones of

privacy.”344

In Eisenstadt v. Baird, the Court extended the reasoning in Griswold

to the use of contraceptives by unmarried persons as well. The Court

explained that privacy “is the right of the individual, married or single,

to be free from unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to bear or

beget a child.”345 Subsequently, the Court held in Roe v. Wade that the

right to privacy “encompass[es] a woman’s decision whether or not to

terminate her pregnancy.”346

Griswold, Eisenstadt, and Roe all protect against what I call “decisional

interference”—that is, governmental interference with people’s deci

sions regarding certain matters in their lives. These cases extend to de

cisions relating to sex and sexuality, as well as parents’ child-rearing de

cisions.347

Many commentators have argued that the language of privacy is in

appropriate for decisional-interference cases because they primarily

concern a harm to autonomy and liberty, not to privacy7. Thus Lau

rence Tribe argues that the central issue in Roe v. Wade is “not privacy7,

but autonomy7.”348 Similarly7, Louis Henldn contends that the Supreme

Court’s substantive due process right-to-privacv cases are about pro

tecting a “zone of autonomy7, of presumptive immunity to govern

mental regulation,” not about protecting privacy.349 W hat relationship

does decisional interference have to the other forms of privacy in the

taxonomy?

The decisional-interference cases are deeply connected to informa

tion privacy. Legal scholar Neil Richards notes that the “canonical ‘de

cisional’ privacy case law has long had a substantial informational com

ponent.” Griswold “relied extensively upon several lines of cases now

commonly considered as falling on the information privacy side of the

informational/decisional binary of information privacy scholars.”330 In

particular, the Supreme Court explained in Whalen v. Roe that the con

stitutionally protected “zone of privacy” extends not only to the “in

terest in independence in making certain kinds of important decisions”

but also to the “individual interest in avoiding disclosure of personal