Elaborating on Warren and Brandeis’s asocial (even anti-social) definition, Alan Westin defined the right to privacy as ‘the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, whether in a state of solitude or small group intimacy or, when among larger groups, in a condition of anonymity or reserve’.47 This definition pivots on the right of the individual to be an individual sans social interactions. In this definition, Westin identified four dimensions of privacy: solitude, where an individual can be free of observation by others; intimacy, where a person has a right to form and enjoy close social bonds; anonymity, where an individual can refuse to be identified by others; and reserve, where personal information about the individual is limited as he or she sees fit.48 Westin was particularly vocal about the informational aspects of the right to privacy, and his views influenced a great deal of public policy work on privacy and data protection work, both of which came to equate privacy with the protection of personal information.49 Charles Fried also offered an individualised, but much more truncated, definition of privacy, namely ‘[the] control we have over information about ourselves’.50
These views can lead to the conclusion that privacy should enable a person to control information about himself or herself to achieve independence, self-reliance and, ultimately, self-determination. In fact, privacy can be said to have various functions, in that it allows a person to act autonomously, it allows for spaces in which a person can manage stresses away from the hurly-burly of the world’s pressures and engage in self-reflection about his or her relations with the world, and it allows for the protection of personal information so that the individual can decide what to share, and under what conditions.51 Privacy can also be said to involve four elements: bodily privacy, where a person has a right to decide what happens to his or her body; information privacy, where a person has a right to decide what information is released about him or her, and how; privacy of communication, where people should be guaranteed the right to communicate without fear of having their communications intercepted; and territorial privacy, where a person has a right to enjoy the privacy of his or her own home or personal space.52
What unites these scholars is that they see individuals as the main rights-holders, a view that is based on the moral stance that emphasises the worth of the individual above that of the group. To that extent, their conception of privacy could be said to rest on liberal-democratic conceptions of the individual. Scholars from a variety of perspectives have critiqued this individualised concept of privacy for separating the public and private realms artificially, and playing down communitarian values such as sharing and other forms of social solidarity. Furthermore, this concept of privacy fails to see the right as a social right, or one that is mediated by questions of power. Articulating the right as an individual right is also self-defeating, as it opens up the right to limitation on the basis that it competes with other rights, and, when it clashes with rights that are more important to the collective, then the individual right must give way. On the other hand, if the defence of the right was embedded in broader questions of democracy and human rights (such as the right to form opinions free from state interference, or to participate in shaping a society’s political life), then it would be less vulnerable to limitation, as its broader societal value would be clearer.53 As a result, more recent conceptualisations of the right to privacy have evolved from focusing on the individual to focusing on its social necessity, as a lack of privacy erodes trust in relationships, including those between individuals and organisations.
Rather than abandoning the right entirely, some have conceptualised the right to privacy in social terms – as being a common need – and have even argued for a sociality of privacy.54 All individuals experience a need for minimum levels of privacy. In fact, democracy could not function without privacy, as people would become fearful about speaking out and holding the powerful to account, in case their words or deeds were being tracked. The boundaries between the self and society are also much more porous than Westin has made out, as the individual is defined through interactions with others, and privacy in its various forms is negotiated through these interactions. Furthermore, the problem should not be understood as being about protecting the privacy ‘bubble’ around a person from invasion, but rather about managing relationships between individuals and organisations in the realm of information: in other words, in this worldview a social relationship is assumed.
The growing problem of unwarranted surveillance, and the need to have a common instrument to fight it, have spurred scholars such as Colin Bennett to articulate a collective conception of privacy. In any event, he has argued, privacy has become a matter of public policy and has been recognised for its societal value for several decades now.55 Even David Lyon, previously a privacy sceptic, has come to recognise the need for a common uniting concept in the struggle against surveillance, and privacy provides just such a concept.56 If privacy is not reinvigorated, then societies could see surveillance grow relatively unchecked in spite of the right to privacy’s existence, as surveillance advocates would merely need to point to a social problem for the right to wither into insignificance.57
But will emphasising the right to privacy’s sociality be enough to rescue it from irrelevance in the real world, weighed down as it is by concerns about terrorism and public safety, on the one hand, and unaccountable surveillance, on the other? What does policy need to look like to roll back attempts to turn societies into ‘surveillance societies’, where people cannot act or even think without the fear of being watched by powerful actors that may not have their best interests at heart? Social conceptions of privacy may still be deficient, as they may not focus on the social justice aspects of surveillance, such as social sorting on discriminatory grounds.58 Privacy may even enable surveillance, as it can lead to organisations ticking privacy boxes while largely continuing with their practices unhindered: a problem that will be explored in more detail later on when the work of privacy regulators is discussed.59 While emphasising the social content of the right strengthens the ability of privacy advocates to defend it against limitations on national security grounds, the problem with the ‘turn to the social’ in privacy studies is that it can be depoliticised. That is, it lacks a political perspective on the problem, and more specifically on power relations in society, and how the right will continue to be attacked, both as an individual and as a social right, unless the political interests at work in doing so are identified and addressed. A critical political perspective, including a Marxist perspective, is particularly important in this regard, as it is orientated to progressive social change; such a perspective should also address the limitations of a rights-based analysis. In other words, challenging unaccountable surveillance is not just about asserting a right to privacy, but also about changing how surveillant forms of power are organised in society. In this regard, Zachary Bruno has detected an absence of critique in the face of the massive expansion of the surveillance state: even the Snowden revelations did not cause US citizens to revolt en masse against violations of their rights. The sheer pervasiveness of the surveillance machinery, coupled with the absence of any critique of its dangers, means that alternatives remain difficult to imagine.60
From a Marxist perspective, the concept of a ‘natural individual’ vested with pre-political rights is a historical product of capitalist property relations and forms of production. Under these conditions, these freedoms have been developed mainly within the relationships of the ruling class.61 In other words, in unequal societies the ability to individuate is available to