4 questions

Hi i need help with this assignment
You will write on 4 of the questions below. Your answers probably don’t need to be more than a page double spaced for each question. Here are the questions:
1. Explain the utilitarian justification for IP as an incentive for intellectual work. What objections can be raised against this approach?
2. Explain the Lockean “labor/desert” approach to justifying IP. What objections can be raised against this approach?
3. Explain Moore’s distinction between “thin” and “thick” consent. How does he employ these concepts in developing a view about how employers can monitor employees while still respecting their privacy?
4. Explain 3 of the various approaches to defining privacy and explain the limitations for each.
5. Explain the issues brought about by the prisoner’s dilemma in relation to intellectual property.
6. Explain several pros and cons of current copyright law and what it means for the public domain.
7. What did Aristotle, Plato and Socrates think on privacy and how did they differ from each other
Some readings: (I attached other readings as a PDF)
https://plato.stanford.edu/entries/intellectual-property/ – JustCrit

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/280292851
ArticleinLibrary Hi Tech · March 2007
DOI: 10.1108/07378830710735867
2 authors, including:
Some of the authors of this publication are also working on these related projects:
Privacy, Transparency, and the Prisoner’s Dilemma View project
Value of Privacy View project
Adam D. Moore
University of Washington Seattle
All content following this page was uploaded by Adam D. Moore on 09 March 2021.
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The International Encyclopedia of Ethics, First Edition. Edited by Hugh LaFollette.
© 2013 Blackwell Publishing Ltd. Published 2013 by Blackwell Publishing Ltd.
Adam D. Moore
There is little agreement about how to define the term “privacy.” For example,
Warren and Brandeis, following Judge Thomas Cooley, called it “the right to be let
alone” (Warren and Brandeis 1890: 194). Alan Westin (1967) described privacy in
terms of information control. William Parent argued that “privacy is the condition
of not having undocumented personal knowledge about one possessed by others”
(Parent 1983: 269), while Julie Inness defined privacy as “the state of possessing
control over a realm of intimate decisions, which include decisions about intimate
access, intimate information, and intimate actions” (Inness 1992: 140). Privacy is
also viewed by many as morally valuable and worthy of protection, while others have
viewed it with suspicion. This essay will review each of these areas, including (1) a
brief history of privacy, (2) philosophical definitions of privacy along with specific
critiques, (3) views about the value of privacy, and (4) general critiques of privacy.
A Brief History of Privacy: Classical Greece and China, Locke
and Mill
It is difficult to write about the history of privacy because of an overabundance of
subject matter (Ariès and Duby 1988–91; Moore 2005, 2007). This section will focus
on privacy as developed in two distinct cultures and within two different moral
traditions (see deontology; utilitarianism). While there may be many different
culturally dependent conceptions of privacy there is much overlap and a richhistory.
The point of this section is not to highlight a single conception of privacy that runs
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across different cultural and moral traditions. Rather the focus is on a few different
traditions that promote privacy and provide a partial backdrop for current debates.
The distinction between public and private activity was entrenched in Greek
society by the time of Socrates, Plato, and Aristotle (see aristotle; plato). Typically
the distinction was cast in terms of political activity compared to isolatedintellectual
pursuits (Ariès and Duby 1988–91; Moore 1984). Both Socrates and Aristotle defend
the view that a life of intellectual and private pursuit was a worthwhile life. In Plato’s
Apology Socrates notes, “Perhaps it may seem strange that I go about and interfere in
other people’s affairs to give this advice in private but do not venture to come before
your assembly and advise the polis.” Socrates goes on to say that had he gone into
politics he would have been put to death for opposing injustice. He ends with, “A
man who really fights for the right, if he is to preserve his life even for a little while,
must be a private citizen, not a public man” (Plato, Apology 31d–32a). Socrates thus
affirms the view that criticism of governmental policy and officials is best pursued
behind walls of privacy.
Aristotle also makes use of a public–private distinction. First, he recognizes a
boundary between affairs of the state or polis and household affairs (Aristotle 1984:
2005–6, 1263b–1264b). Second, contemplative activity – which for Aristotle was
essential for human flourishing – required distance, space, and solitude from public
life (Aristotle 1984: 1861, 1177b). This is one of the first references to what was to
become a dominate theme in Western thought – the good life is not necessarily tied
to public activity (Moore 1984).
Plato, on the other hand, was openly hostile to privacy – deeming it unnecessary
and counterproductive in relation to the ideal state. In the Republic Plato writes, “in
the perfect State wives and children are to be in common … [and] houses … which
are common to all, and contain nothing private, or individual” (Plato 1892: 801,
543a). In the Laws Plato advocates the elimination of private spheres of activity:
The first and highest form of the state and of the government and of the law is that in
which there prevails most widely the ancient saying, that “Friends have all things in
common.” Whether there is anywhere now, or will ever be, this communion of women
and children and of property, in which the private and individual is altogetherbanished
from life, and things which are by nature private, such as eyes and ears and hands, have
become common, and in some way see and hear and act in common, and all men
express praise and blame and feel joy and sorrow on the same occasions, and whatever
laws there are unite the city to the utmost – whether all this is possible or not, I say that
no man, acting upon any other principle, will ever constitute a state which will be truer
or better or more exalted in virtue. (Plato, Laws, Ch. 5, 738d–e)
Plato views privacy as something that is inherently disvaluable in relation to the
perfect state. Moreover he recognizes no psychological, sociological, or political
needs for individuals to be able to control patterns of association and disassociation
with their fellows.
The public–private distinction was also well understood by the Warring States
period – 403 bce–221 bce – in China (Moore 1984). Like Aristotle, Confucius
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(551–479 bce) distinguished between the public activity of government and the
private affairs of family life (see confucious). While Plato rejects, Aristotle and
Confucius affirm, many of the six categories of privacy discussed below.
Confucius contends that “a private obligation of a son to care for his father
overrides the public obligation to obey the law against theft” and that “a timid man
who is pretending to be fierce is like a man who is so ‘dishonest as to sneak into
places where one has no right to be, by boring a hole or climbing through a
gap’”(Moore 1984: 223). Han Fei Tzu (280–233 bce) writes:
When T s’ang Chieh [a mythic cultural hero] created the system of writing, he used the
character for “private” to express the idea of self-centeredness, and combined the
elements for “private” and “opposed to” to form the character for “public.” The fact that
public and private are mutually opposed was already well understood at the time of T
s’ang Chieh. To regard the two as being identical in interest is a disaster which comes
from lack of consideration. (Tzu 1964: 106)
While not sophisticated and clearly contentious, the public–private distinction arose
and was a matter of philosophical debate in two distinct cultural traditions. In both
of these cultures privacy was a commodity purchased with power, money, and
privilege. Barriers such as walls, fences, and even servants secured areas of isolation
and seclusion for the upper class. To a lesser degree, privacy was also secured by
those with more modest means.
Within the liberal tradition the public–private distinction has been used to mark
the boundary of justified interference with personal conduct in the political theories
of John Locke and John Stuart Mill (see locke, john; mill, john stuart). For
Locke the public–private distinction falls out of his conception of the state of nature,
the legitimate function of government, and property rights. The sole reason for
uniting into a commonwealth, for Locke, was to remedy the inconveniencies of the
state of nature – the function of government was to secure the rights of life, liberty,
and property (Locke 1980: 5–30). On estates and behind fences, walls, and doors
Lockean individuals secure a domain of private action free from public pressures or
John Stuart Mill also limits societal or public incursions into private domains.
Mill argues: “The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others”
(Mill 1978: 9). Recognizing that harm could occur through action and inaction, Mill
accepted a version of the doing–allowing distinction (see doing and allowing) –
actions that cause harm are different from failings to prevent harm. In anticipation
of the question “won’t any action someone performs affect others in some way” Mill
offers his doctrine of “self-regarding” and “other-regarding” acts (Mill 1978: 78–82)
and addresses this question in chapter 5 of Utilitarianism (Mill 1861: 41–63). One
view is that, for Mill, strategic rules or rights provide the standard of harm and the
boundary between self-regarding and other-regarding acts. When an action violates
the rights of another, moral harm has occurred and appropriate action orinterference
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is warranted by citizens or government agents. Liberty, property, and life rights
appear to be the kinds of rights that Mill endorses. If so, then like Locke, Mill uses
rights to secure individuals the moral space to order their lives independent of social
pressures. While not explicit in their defense, both Locke and Mill promote many of
the central features of privacy mentioned in the following section. Individual liberty
and private property provide a sanctuary against governments and neighbors.
Within private domains individuals obtain intimacy and secrecy, and can control
access to themselves.
Definitions of Privacy
Definitions of privacy are typically grouped into two general types. A descriptive or
nonnormative account describes a state or condition where privacy obtains. An
example would be Parent’s definition: “privacy is the condition of not having
undocumented personal knowledge about one possessed by others” (Parent
1983:269). A normative account, on the other hand, makes references to moral
obligations or claims. For example, when DeCew talks about what is of “legitimate
concern of others” she includes ethical considerations (DeCew 1997: 58). There is
little agreement regarding the descriptive or normative components of privacy and
many of the definitions surveyed below could be cast along either dimension. For
example, we could define privacy as being let alone or as a right to be let alone.Privacy
could be cast as a condition that obtains or as a right that a condition obtains.
While admittedly imprecise, different conceptions of privacy typically fall into one
of six categories or combinations of the six (Solove 2002; Moore 2008, 2010): (1)the
right to be let alone; (2) secrecy; (3) intimacy; (4) control over information; (5)
restricted access; and (6) privacy as a cluster concept. We will take them up in turn.
Warren and Brandeis argued:
recent inventions and business methods call attention to the next step which must be
taken for the protection of the person, and for securing to the individual … the “right
to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life; and numerous mechanical devices
threaten to make good the prediction that “what is whispered in the closet shall be
proclaimed from the house-tops.” (Warren and Brandeis 1890: 194)
While acknowledged as starting the modern debate, the conception of privacy
proposed by Warren and Brandeis has been widely criticized as too vague (Gavison
1980; O’Brien 1979; Allen 1988; Bloustein 1964; Solove 2002). According to this
definition any offensive or hurtful conduct would violate a “right to be let alone,” yet
we may not want to conclude that such conduct is a violation of privacy. Forexample,
suppose that Smith inadvertently brushes against Jones as they pass each other on a
busy sidewalk – not every violation of a right to be let alone seems to be a privacy
violation. This conception is too narrow as well. Consider the case of covert
surveillance where a target is “let alone” but there is a clear privacy violation
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( Thomson 1975). In this latter case, someone may be let alone in some sense and yet
seemingly have their privacy violated.
Richard Posner has defined privacy as the “right to conceal discreditable facts
about oneself ” – a right to secrecy (Posner 1981: 46). Amitai Etzioni concurs,writing
that privacy is “the realm in which an actor … can legitimately act withoutdisclosure
and accountability to others” (Etzioni 1999: 12). DeCew and others have criticized
this conception of privacy, noting “secret information is often not private (for
example, secret military plans) and private matters are not always secret (forexample,
one’s debts)” (DeCew 1997: 48). Moreover it seems that privacy-as-secrecy accounts
cannot accommodate what has come to be called “decisional privacy.” Decisional
privacy, within the US context, has been defined as the freedom to make decisions
about a range of actions and behaviors, including contraceptive use, abortion, child
rearing, and sexual practices. Those who would defend decisional privacy claim that
making a decision about abortion, for example, may not be secret and yet still be a
matter of privacy.
Several authors have defended the view that privacy is a form of intimacy (Fried
1970; Gerstein 1978; Inness 1992; Rosen 2000; Cohen 2002). Jeffrey Rosen writes:
“In order to flourish, the intimate relationships on which true knowledge of another
person depends need space as well as time: sanctuaries from the gaze of the crowd
in which slow mutual self-disclosure is possible” (Rosen 2000: 8). Julie Inness
maintains that privacy is “the state of the agent having control over decisions
concerning matters that draw their meaning and value from the agent’s love, caring,
or liking” (Inness 1992: 91). In critique, Solove (2002) and DeCew (1997) note that
financial information may be private but not intimate. Moreover, it is possible to
have private relationships without intimacy and to perform private acts that are not
intimate. Data mining also may pose a threat to individual privacy without affecting
intimate relationships.
Control over personal information has also been offered as a definition of privacy
(Westin 1967; Gross 1971; Fried 1984). Alan Westin writes, “privacy is not simply an
absence of information about us in the minds of others; rather it is the control we
have over information about ourselves” (Westin 1967: 7). Gross argues that privacy
is “the condition under which there is control over acquaintance with one’s affairs”
(Gross 1971: 209). Critics have attacked this conception on grounds that it, like the
secrecy view, cannot account for “decisional privacy.” It also fails to acknowledge a
physical aspect to privacy – control over access to locations and bodies. Finally,
many have noted that whether or not a privacy condition of this sort holds is
unimportant – what we want to know is “should individuals have rights to control
access?” (DeCew 1997; Moore 2008, 2010).
Privacy defined as “limited access to the self ” has been defended by numerous
authors, including Sissela Bok (1983), Anita Allen (1988), and Ruth Gavison (1980).
Bok writes, “privacy is the condition of being protected from unwanted access by
others – either physical access, personal information, or attention” (Bok 1983: 10).
The worry here is that if no protection is available or the condition does not obtain
it would be odd to conclude that privacy interests were not relevant. Gavison offers
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a different account of limited access. On her view limited access consists of “secrecy,
anonymity, and solitude” (Gavison 1980: 433). Solove notes: “Although Gavison
contends that ‘the collection, storage, and computerization of information’ falls
within her conception, these activities often do not reveal secrets, destroyanonymity,
or thwart solitude” (Solove 2002: 1105). If so, such conceptions of privacy may be
too narrow.
Finally, many view privacy as a cluster concept that contains several of the
dimensions noted above. Judith Wagner DeCew (1997) has proposed that privacy is
a concept ranging over information, access, and expressions. Daniel Solove (2002)
has offered a context-dependent approach for defining privacy – for example, in the
context of information we may focus on certain dimensions of privacy that will not
be as important in different contexts like spatial control. Building onrestricted-access
views and control-based accounts, Moore (2003, 2008, 2010) has argued thatprivacy
is the right to control access to and uses of personal information and spatiallocations.
The Moral Value of Privacy
Many privacy theorists argue that privacy is morally valuable because it isassociated,
in some central way, with autonomy and respect for persons (Benn 1971; Rachels
1975; Reiman 1976; Kupfer 1987; Inness 1992; Rössler 2005) (see autonomy).
Stanley Benn writes: “Respect for someone as a person, as a chooser, implies respect
for him as one engaged on a kind of self-creative enterprise, which could be
disrupted, distorted, or frustrated even by so limited an intrusion as watching”
(Benn 1971: 26). Rachels (1975) argued that privacy is morally valuable because it
allows individuals to control the patterns of behavior necessary for stable and
meaningful relationships. Joseph Kupfer argues that “privacy is essential to the
development and maintenance of an autonomous self ” (Kupfer 1987: 82). Rössler
maintains that privacy is a necessary condition for individual autonomy (Rössler
2005: 42–76). According to these theorists, privacy is morally valuable because it
protects and promotes the sovereign and autonomous actions of individuals – since
autonomy is morally valuable, privacy must be as well.
Allen Westin (1967) argued that the ability to regulate access was essential for the
proper functioning of animals. Building on Westin’s account of separation, Moore
(2003, 2008, 2010) has argued that privacy is necessary for human well-being or
flourishing. Moore notes that “while privacy may be a cultural universal necessary for
the proper functioning of human beings, its form − the actual rules ofassociation and
disengagement − is culturally dependent. The kinds of privacy rules found in differ-
ent cultures will be dependent on a host of variables including climate,religion, tech-
nological advancement, and political arrangements” (Moore 2010: 55). Moore argues
the forms of privacy are culturally relational while the need is an objective necessity.
General Critiques of Privacy
The discussion of privacy, including the definitions and history presented above,
must also include views which challenge the authenticity, legitimacy, and necessity
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of privacy (DeCew 2006). While not exhaustive, presented below are some of the
most forceful critiques of privacy that dominate the literature.
Reductionists argue that privacy is derived from other rights such as life, liberty, and
property rights – there is no overarching concept of privacy but rather several
distinct core notions that have been lumped together (Davis 1959; Thomson 1975;
Peikoff 2004). The nonreductionist views privacy as related to, but distinct from,
other rights or concepts. Viewing privacy in reductionist fashion might mean
jettisoning the idea altogether and focusing on more fundamental concepts. For
example, Frederick Davis has argued that “invasion of privacy is, in reality, acomplex
of more fundamental wrongs. Similarly, the individual’s interest in privacy itself,
however real, is derivative and a state better vouchsafed by protecting more
immediate rights” (Davis 1959: 20). Judith Jarvis Thomson agreed, claiming “the
right to privacy is itself a cluster of rights, and that it is not a distinct cluster of rights
but itself intersects with … the cluster of rights which owning property consists in”
(Thomson 1975: 306). The simpler avenue, according to Thomson, is to focus on
this cluster of rights which are more basic or fundamental than the “derivative” right
of privacy.
To illustrate the reductionist view, consider Thomson’s case of a pornographic
picture. Hugh owns a pornographic picture and keeps it locked in his wall safe – so
that no one can see it or even know that he owns it. Larry wants to see the picture
and trains his x-ray device on the wall safe to look in. Thomson argues that Hugh’s
property right to the picture includes the right that others not look at it and thus, in
this case, privacy rights are a kind of property right. Other rights, like the right not
to be listened to or touched, fall under what Thomson calls the “rights over the per-
son” which she claims are analogous to property rights as well. In this way, Thomson
claims that privacy is nothing more than the cluster of rights over the person and
property rights.
Several privacy theorists have offered arguments against this sort of reductionism
(Scanlon 1975; Parent 1983; Inness 1992; DeCew 1997; Moore 2010). Scanlon argues
that the wrongness in cases where Hugh does not own the picture in question and
Larry uses an x-ray device to look, does not depend on property rights. Moreover,
Parent noted that even if correct, all that Thomson shows is that it is unclear if
privacy is reducible to more “basic” rights or the other way around. Perhaps we
should view privacy as more fundamental than property or rights over the person.
The “other values” critique
Anita Allen (2003, 2008), Ferdinand Schoeman (1992), Amitai Etzioni (1999), and
others have argued that privacy is less important, in many circumstances, than
accountability, security, or community rights. The problem with our heightened
sensitivity to privacy violations is that we forget that other, more important, values
are lost or minimized. Anita Allen (2003) has argued that accountability toward
one’s family, race, and society justifiably limits the domain of individual privacy.
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Allen also argued that “spying is useful for protecting children or others in our care
who cannot protect themselves; protecting ourselves from wrongdoers; protecting
the company and the investing public; and protecting the nation” (Allen 2008: 19).
Amitai Etzioni (1999) noted that in our society privacy has been treated as the
highest privileged value to the detriment of other common goods such as public
safety and public health. Etzioni views privacy as a “societal license” that exempts
certain conduct from public scrutiny. Helena Gail Rubinstein writes: “ communitarians
reject the primacy of the individual, and invite members of the community to move
beyond self-interest in favor of a vision of society defined by community ties and a
search for the communal good … individuals should not assert their ‘right to be let
alone’ when it is time to contribute to the collective good” (Rubinstein 1999: 228).
Communitarians like Etzioni and Rubinstein seek to find a balance between
individual rights and social responsibilities (see communitarianism).
Posner’s critique
Richard Posner (1981) has argued that the value of privacy, in an economic sense,
determines how privacy ought to be applied in specific instances. In some cases
privacy should be passed over in favor of economic gains to society. His stance places
a high value on privacy in business dealings since this privacy has potential for
greater impact on the economy. Personal information, on the other hand, does not
deserve the same privacy protection because persons, as opposed to businesses, will
tend to increase personal wealth over the growth of societal wealth. Privacy in
personal information, according to Posner, is typically used to mislead ormanipulate
others. Posner writes: “the individual’s right to privacy … the right to control the
flow of information about him … [may include] information concerning …criminal
activity, or moral conduct at variance with the individual’s professed moralstandards”
(Posner 1981: 233). Posner concludes that it is not clear why society should protect
privacy of this sort.
Data mining, surveillance, and transparency – privacy is dead
In contrast to the communitarian claim that privacy interests have become too
prominent, numerous scholars have announced the death of privacy. The critique
offered is not so much a normative one but rather descriptive – privacy is no longer
relevant in the age of transparency. The “stark reality,” Richard Spinello writes, is
“that our personal privacy may gradually be coming to an end” (Spinello 1997: 9).
David Brin (1998), Charles Sykes (1999), Jeffrey Rosen (2000), and others have
proclaimed that privacy is under siege. Implicated in the assault is the growth of
information technology and ubiquitous computing (see privacy and theinternet).
The feminist critique
A number of feminist scholars have critiqued privacy, noting that it often
shieldsdomination, abuse, and violation – privacy protects the hierarchical power
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relationships that subject women to subordination by men (see feminism). Behind
the walls of privacy these power relationships remain hidden and thus perpetuate
inequality. Catharine MacKinnon writes:
For women the measure of the intimacy has been the measure of the oppression.…
This is why feminism has seen the personal as the political. The private is public for
those for whom the personal is political. In this sense, for women there is no private,
either normatively or empirically. Feminism confronts the fact that women have no
privacy to lose or to guarantee. (MacKinnon 2002: 191)
Mackinnon also noted that by putting the right to abortion under the category of
privacy, abortion ceased to be understood as a women’s issue. Deborah Rhode
(1989) has argued that legal and moral conceptions of privacy support the “separate
spheres ideology” which has placed women in the unseen and unheard domain of
the private. Other feminists such as Carol Gilligan (1982) have maintained that
notions of privacy embrace the traditional male view of humans as independent
autonomous moral agents operating in a marketplace of rights.
Other feminists such as Anita Allen (1988), Jean Bethke Elshtain (1981), and
Judith Wagner DeCew (1997) argue that rejecting privacy rights, and more generally
the private–public distinction, may afford those in dominate positions more power
over women. DeCew writes: “focus on domestic violence ignores state-sponsored
expressions of control over women” (DeCew 1997: 88).
While privacy is difficult to define and has been challenged on moral, legal, and
social grounds, it has played an important role in the formation and maintenance of
Western liberal democracies. It is also true that rituals of coming together and
leave-taking have been found in every culture systematically studied (Westin 1967).
The question “what do we owe each other” in terms of information sharing and
access is no more important now than it was a century ago – whatever the form or
practice, individuals of all cultures desire privacy. What has changed is our
technological ability to intrude on the “sacred precincts of private and domestic life”
(Warren and Brandeis 1890: 194).
SEE ALSO: aristotle; autonomy; communitarianism; confucius;deontology;
doing and allowing; feminism; locke, john; mill, john stuart; normativity;
plato; privacy and the internet; utilitarianism
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Allen, A. L. 2003. Why Privacy Isn’t Everything: Feminist Reflections on Personal Responsibility.
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Allen, A. L. 2008. “The Virtuous Spy: Privacy as an Ethical Limit,” The Monist, vol. 91,
pp. 3–22.
Ariès, P., and G. Duby (eds.) 1988–91. A History of Private Life, 4 vols. Cambridge, MA:
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DeCew, J. W. 2006. “Privacy,” Stanford Encyclopedia of Philosophy. At http://plato.stanford.
Elshtain, J. B. 1981. Public Man, Private Woman: Women in Social and Political Thought.
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Etzioni, A. 1999. The Limits of Privacy. New York: Basic Books.
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Fried, C. 1984. “Privacy [A Moral Analysis],” in F. Schoeman (ed.), Philosophical Dimensions
of Privacy. Cambridge: Cambridge University Press, pp. 203–21.
Gavison, R. 1980. “Privacy and the Limits of Law,” Yale Law Journal, vol. 89, pp. 421–71.
Gerstein, R. 1978. “Intimacy and Privacy,” Ethics, vol. 89, pp. 76–81.
Gilligan, C. 1982. In a Different Voice: Psychological Theory and Women’s Development.
Cambridge, MA: Harvard University Press.
Gross, H. 1971. “Privacy and Autonomy,” in R. Pennock and J. Chapman (eds.), Privacy
Nomos XIII. New York: Atherton, pp. 169–81.
Inness, J. 1992. Privacy, Intimacy, and Isolation. Oxford: Oxford University Press.
Kupfer, J. 1987. “Privacy, Autonomy, and Self-Concept,” American Philosophical Quarterly,
vol. 24, pp. 81–9.
Locke, J. 1980 [1690]. The Second Treatise of Government, ed. C. B. Macpherson. Indianapolis:
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Adam D. Moore
Abstract. In this article I address the tension between evaluative
surveillance and privacy against the backdrop ofthe current explosion
of information technology. More specifically, and after a brief analysis
of privacy rights, I argue that knowledge of the different kinds of
surveillance used at any given company should be made explicit to
the employees. Moreover, there will be certain kinds of evaluative
monitoring that violate privacy rights and should not be used in most
Too many employers practice a credo of “In God we trust, others we monitor.”
Marlene Piturro, “Electronic Monitoring”1
Few would deny the profound impact, both positive and negative, that computers and digital technology are having in the modern workplace. Some
ofthe benefits include safer working conditions, increased productivity, and better
communication between employees, clients, and companies. The downside of
this revolution can be tedious working conditions and the loss of privacy and
autonomy. In the workplace there is a basic tension between surveillance
technology and privacy. Companies want to monitor employees and reward effort,
intelligence, productivity, and success while eliminating laziness, stupidity, theft,
and failure. The market demands no less of most businesses. But against this
pressure stands the individual within the walls of privacy?walls that protect
against invasions into private domains.
Jeremy Bentham once envisioned a prison workhouse that placed overseers
in a central tower with glass-walled cells and mirrors placed so that inmates
could never know if they were being watched.2 The idea was that “universal
transparency” would keep the prisoners on their best behavior. Recent develop?
ments in surveillance technology are promising to turn the workplace into the
modern equivalent of Bentham’s workhouse. There are now computer programs
that allow employers to monitor and record the number of keystrokes per minute
an employee completes. Employee badges may allow the recording of move?
ments and time spent at different locations while working. There is now the
possibility of monitoring voice mail, e-mail, and phone logs?all without the
?2000. Business Ethics Quarterly, Volume 10, Issue 3. ISSN 1052-150X. pp. 697-709
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knowledge or consent of those being watched. There are even global positioning
systems that allow companies to track employee movements cross-country. While
employers have always sought to monitor employees it is arguably the case that
digital technology has changed the game, so to speak. We may wonder, in a
networked world, when this kind of surveillance technology will be used to
monitor all of us? And not by just governments, although this Orwellian night-
mare will be possible, but by our employers.
In this article I will address the tension between evaluative surveillance and
privacy against the backdrop of the current explosion of information technol?
ogy. More specifically, and after a brief analysis and justification of privacy
rights, I will argue that knowledge of the different kinds of surveillance used at
any given company should be made explicit to the employees. Moreover, there
will be certain kinds of evaluative monitoring that violate privacy rights and
should not be used in most cases. As we shall see, certain jobs may warrant a
smaller domain of privacy. We should not conclude, however, that the arguments
used in these cases are easily generalized.
Privacy may be understood as that state where others do not have access to
you or to information about you.3 I hasten to note that there are degrees of pri?
vacy. There are our own private thoughts that are never disclosed to anyone, as
well as information we share with loved ones. Furthermore, there is information
that we share with mere acquaintances and the general public. These privacy
relations with others can be pictured “in terms of a series of ‘zones’ or ‘regions’
. . . leading to a ‘core self.'”4 Thus, secrets shared with a loved one can still be
considered private, even though they have been disclosed.
In an important article dealing with privacy, morality, and the law, William
Parent offers the following definition of privacy.
Privacy is the condition of not having undocumented personal knowledge
about one possessed by others. A person’s privacy is diminished exactly to
the degree that others possess this kind of knowledge about him. Docu-
mented information is information that is found in the public record or is
publicly available (e.g. information found in newspapers, court proceed-
ings, and other official documents open to public inspection).5
The problem with this definition is that it leaves the notion of privacy dependent
upon what a soeiety or culture takes as documentation and what information is
available via the public record. Parent acts as if undocumented information is
private while documented information is not, and this is the end of the matter.
But surely the secret shared between lovers is private in one sense and not in
another. To take another case, consider someone walking in a public park. There
is almost no limit to the kinds of information that can be acquired from this
public display. One’s image, height, weight, eye color, approximate age, and
general physical abilities are all readily available. Moreover, biological matter
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will also be left in the public domain?strands of hair and the like may be left
behind. Since this matter, and the information contained within, is publicly
available it would seem that all of one’s genetic profile is not private information.
Furthermore, what is publicly available information is dependent upon tech?
nology. Telescopes, listening devices, heat imaging sensors, and the like open
up what most would consider private domains for public consumption. What we
are worried about is what should be considered a “private affair”?something
that is no one else’s business. Parent’s conception of privacy is not sensitive to
these concerns.
A right to privacy can be understood as a right to control access to oneself. It
is a right to limit public access to the “core self?and this includes personal
information that one never discloses?and to information that one discloses only
to family and friends. For example, suppose that I wear a glove because I am
ashamed of a scar on my hand. If you were to snatch the glove away you would
not only be violating my right to property?alas, the glove is mine to control?
you would also violate my right to privacy; a right to restrict access to information
about the scar on my hand. Similarly, if you were to focus your x-ray camera on
my hand, take a picture ofthe scar through the glove, and then publish the pho-
tograph widely, you would violate a right to privacy.6
Having said something about what a right to privacy is we may ask how such
rights are justified. A promising line of argument combines notions of autonomy
and respect for persons. A central and guiding principle of Western liberal de-
mocracies is that individuals, within certain limits, may set and pursue their own
life goals and projects. Rights to privacy erect a moral boundary that allows
individuals the moral space to order their lives as they see fit.7 Privacy protects
us from the prying eyes and ears of governments, corporations, and neighbors.
Within the walls of privacy we may experiment with new ways of living that
may not be accepted by the majority. Privacy, autonomy, and sovereignty, it would
seem, come bundled together.
A second but related line of argument rests on the claim that privacy rights
stand as a bulwark against governmental oppression and totalitarian regimes. If
individuals have rights to control personal information and to limit access to
themselves, within certain constraints, then the kinds of oppression that we have
witnessed in the twentieth century would be near impossible. Put another way, if
oppressive regimes are to consolidate and maintain power, then privacy rights
(broadly defined) must be eliminated or severely restricted. If correct, privacy
rights would be a core value that limits the forces of oppression.8
Arguably any plausible account of human well-being or flourishing will have
as a component a strong right to privacy. Controlling who has access to our-
selves is an essential part of being a happy and free person. This may be why
“peeping Toms” and rapists are held up as moral monsters?they cross a bound?
ary that should never be crossed without consent.
Surely each of us has the right to control our own thoughts, hopes, feelings,
and plans, as well as a right to restrict access to information about our lives,
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family, and friends. I would argue that what grounds these sentiments is a right
to privacy. While complete control of all our personal information is a pipe dream
for many of us, simply because the information is already out there and most
likely cannot or will not be destroyed, this does not detract from the view of
personal information ownership. Through our daily activities we each create
and leave digital footprints that others may follow and exploit?and that we do
these things does not obviously sanction the gathering and subsequent disclo?
sure of such information by others.
Whatever kind of information we are considering there is a gathering point
that individuals have control over. For example, in purchasing a new car and
filling out the car loan application, no one would deny we each have the right to
demand that such information not be sold to other companies. I would argue that
this is true for any disclosed personal information whether it be patient ques?
tionnaire information, video rental records, voting information, or employment
applications. In agreeing with this view, one first has to agree that individuals
have the right to control their own personal information?i.e., binding agree?
ments about controlling information presuppose that one of the parties has the
right to control this information.
If I am correct about all of this, then there is a fairly strong presumption in
favor of individual privacy rights?even in the workplace. What justifies a pho-
tographer taking pictures of me about the house is my consent. Most would agree
that absent such consent a serious violation of privacy would have occurred.
Consent is also necessary, I will argue, for employee monitoring. But therein
lies the problem. Under what conditions does consent or agreement yield the
appropriate sort of permission. Alas, the initial bargaining situation must be fair
if we are to be morally bound by the outcome.
Privacy in the Workplace
We are now in a position to consider an individual’s right to privacy in the
context of a working environment where evaluative surveillance is both neces?
sary and desirable. If pay increases, promotion, profit-sharing awards, and
incentive pay are to be based on effort, desert, and success, there must be ac?
ceptable methods of monitoring employees.
Consider the following case. In January 1990, Alana Shoars, an administrator for
the electronic mail system at Epson America Inc, discovered that the company was
monitoring the e-mail messages of its employees. She was shown a batch of print-
outs of employee e-mail messages?messages that she thought were protected through
the use of passwords. “I glanced over at some of the printouts, and a lot of warning
bells went off in my head. As far as Fd known, as e-mail coordinator, it wasn’t
possible to do such a thing.”9 Upon criticizing this breach of employee privacy, Ms.
Shoars was dismissed from the company for insubordination.10
This case represents only the tip of the iceberg with respect to employee
monitoring. A survey of companies in Macworld concerning electronic monitoring
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“reported that 21.6 percent of the 301 participating companies admitted search?
ing employee files, including electronic work files (73.8 percent), e-mail (41.5
percent), network messages (27.7 percent) and voice mail (15.4 percent).”11 And
even more alarming, only 30.8 percent ofthe companies surveyed gave advance
warning ofthe monitoring activities.12
In the most general terms, the case of Alana Shoars and e-mail monitoring
highlights the tension between rights to control information and individual pri?
vacy in the workplace. What was objectionable with Epson America’s monitoring
was not their wish to control the information that was found on the company’s
computer network. The objection is that their employees were not notified ofthe
monitoring or the strict company policy forbidding personal use of the network.
Epson argued that the system was company-owned and therefore any infor?
mation found in e-mail accounts, private or otherwise, was justifiably available
for inspection. Moreover, it could be argued that notification of surveillance
was both unnecessary and unwise from a corporate perspective. If each instance
of monitoring was known to an employee, then the data collected would be al-
most worthless. It would be like telling the fakes to start faking.
Thin Consent
Justifying employee monitoring in light of privacy rights begins with what I
call thin consent. A first step in justifying a kind of monitoring is employee
notification. The consent takes the following form: if your employment is to
continue then you must agree to such-and-so kinds of surveillance. This is ap-
propriately called “thin consent” because it is assumed that jobs are hard to find,
the employee in question needs the job, etc. Nevertheless, quitting is a viable
option. The force of such agreements or contracts is echoed by Ronald Dworkin.
If a group contracted in advance that disputes amongst them would be settled
in a particular way, the fact of that contract would be a powerful argument
that such disputes should be settled in that way when they do arise. The
contract would be an argument in itself, independent of the force of the
reasons that might have led different people to enter the contract. Ordi-
narily, for example, each of the parties supposes that a contract he signs is
in his own interest; but if someone has made a mistake in calculating his
self-interest, the fact that he did contract is a strong reason for the fairness
of holding him nevertheless to the bargain.13
An employee cannot consent, even thinly, to a type of monitoring if it is
unknown to her. Given a fairly strong presumption in favor of privacy, thin con?
sent would seem obligatory. Here the employee would be notified of each different
type of monitoring. Individual acts of surveillance, however, would not require
notification?thus slackers would not be notified to stop slacking.
Moreover, a thin consent policy for each different type of surveillance allows
companies and businesses to seize the moral high ground in one important re?
spect. There is no sneaking around riffling through office files, midnight program
installations, or hidden backdoor keys into e-mail accounts. All of this up front
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and in the open. Part of what makes this kind of employee monitoring distasteful
is the deceit involved. Locked voice-mail accounts, e-mail files, and desk draw-
ers present the air of privacy when these domains are anything but private.
In any case it should be clear that thin consent is not enough to justify the
array of monitoring systems that are now possible or will soon be possible?not
in every case. When jobs are scarce, unemployment high, and government assis?
tance programs swamped, thin consent becomes thin indeed. In these conditions
employees will be virtually forced to relinquish privacy because of the severe
consequences if they don’t. But notice what happens when we slide to the other
extreme. Assume a condition of negative unemployment where there are many
more jobs than employees and where changing jobs is relatively easy. In circum?
stances such as these, thin consent has become quite thick. And if employees
were to agree to a certain type of monitoring in these favorable conditions most
would think it justified.
As we slide from one extreme to the other?from a pro-business environment
(lots of workers and few jobs yields low wage overhead) to a pro-employee
environment (lots of jobs and few workers yields high employee compensation)?
this method of justification becomes more plausible. What begins looking like a
necessary condition ends up looking like a sufficient condition. To determine
the exact point where thin consent becomes thick enough to bear the justifica-
tory burden required is a difficult matter. The promise of actual consent depends
on the circumstances. Minimally, if the conditions favor the employee then it is
plausible to maintain that actual consent would be enough to override a pre?
sumption in favor of privacy.
Hypothetical Thick Consent
As noted above, thick consent is possible when employment conditions mini-
mize the costs of finding a comparable job for an employee. Put another way, an
employee who doesn’t have to work, but agrees to anyway, has given the right
kind of consent?assuming of course they have been notified of the different
types of monitoring that will occur. What justifies a certain type of surveillance
is that it would be agreeable to a worker in a pro-employee environment. If thin
consent is obtained and the test of hypothetical thick consent is met, then we
have reason to think that a strong presumption in favor of privacy has been jus-
tifiably surpassed.
We will also have to assume that the hypothetical worker making the choice
is modestly interested in maintaining control over private information. If this
constructed individual has nothing to hide and a general attitude of openness,
then any type of surveillance will pass the test. And if I am correct about the
importance of privacy with respect to sovereignty and autonomy, anyone would
be interested in retaining such control. Rawls’s notion of placing individuals
behind a veil of ignorance may be of some service here.14 If the individual agree-
ing did not know whether she was a worker, manager, or owner and if we assume
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that anyone would be interested in retaining control over private domains, then
the correct vantage point for determining binding agreements will have been
The force of hypothetical contracts has been called into question by Dworkin
and others?”A hypothetical contract is not simply a pale form of an actual con?
tract; it is no contract at all.”15 Here I agree with Dworkin. The moral bindingness
of hypothetical contracts has to do with the reasons for why we would choose to
do this or that. Viewing it this way, hypothetical contracts are simply devices
that enable us to more clearly understand the reasons, moral or otherwise, for
adopting a particular institution or process. Dworkin notes,
There must be reasons, of course, why I would have agreed if asked in
advance, and these may also be reasons why it is fair to enforce these rules
against me even if I have not agreed. But my hypothetical consent does not
count as a reason, independent of these other reasons, for enforcing the
rules against me, as my actual agreement would have.16
Thus the test of hypothetical thick consent can be understood as a way of
clarifying, and allowing us to arrive at, a position that is fair and sensible.
Hereafter, when I talk of hypothetical consent and the moral force of such
agreements, be aware that this is simply a tool or device that is notifying us
when privacy rights may be justifiably relaxed.
Taking up the Epson case again, we may ask if a policy of e-mail monitoring
would satisfy the test of hypothetical thick consent. Here we are to imagine a
world where there were numerous jobs like the ones found at Epson and that
moving to these other jobs would be relatively easy. Moreover, given that there
is no industry-wide interest in monitoring e-mail activity many of these other
positions would not include e-mail monitoring. If an employee would not agree
under these conditions, then this type of surveillance would fail the test. Had
Epson notified its employees of a company e-mail monitoring policy, then those
employees who stayed on at Epson would have given thin consent. But we should
not rush to judge that such a policy would be automatically justified unless the
test of hypothetical thick consent is also met. Meeting this latter test in the Epson
case seems unlikely.
I take a virtue of hypothetical thick consent to be that satisfaction is deter?
mined by imagining a pro-employee situation and then asking what an employee
would do in the face of some kind of surveillance. Some may charge that I am
stacking the deck, however. Why not imagine a pro-business situation and then
ask what an employee would do. We wouldn’t have to do much imagining though,
and employee consent in such conditions wouldn’t justify anything. Moreover,
if I am correct in positing privacy rights for each of us, then the deck is already
stacked. There is a presumption in favor of individuals having control over per?
sonal information?we have privacy rights. Since employee surveillance may
cross into private domains, we must consider under what conditions a privacy
right may be given up or relaxed. In relatively few cases is thin consent thick
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enough to handle the justificatory burden. Hence, the use of hypothetical thick
consent. We are imagining a case where the bargaining situation favors the em?
ployee?and if agreement is offered in these conditions, then we have reason to
think that the type of surveillance in question is warranted.
I hasten to note that even in a pro-employee environment there would be
certain kinds of employee monitoring that would be necessary for any business.
Punching a time clock or measuring time spent working, for example, would
occur in almost any business or company. Even in a pro-employee market theft
would have to be minimized. It is not as if McDonald’s would become so des-
perate for workers that they would leave the register drawers open, allow
employees to come and go as they please, and continue to pay wages. The mar?
ket demands that businesses make a profit or at least break even. Given this,
there will be certain kinds of employee monitoring that every business will use.
Moreover, there will be employment-specific monitoring as well. For example,
trucking companies will have to monitor driving records and ensure that drivers
maintain the appropriate skills needed to operate the big rigs. This kind of sur?
veillance may be required by the market or by legislation of one kind or another.
There may be laws that require certain licenses that make businesses liable for
noncompliance. Absent laws or other government regulation, market efficiency
may require certain kinds of monitoring. An example of the latter may be em?
ployee time monitoring. The hypothetical or constructed truck driver, no matter
where he goes, will be subject to certain kinds of monitoring. So, even in a pro-
employee environment certain kinds of surveillance will be justified?those kinds
that are necessary for doing business.
So far I have been pursuing a kind of top-down strategy in presenting certain
principles and considering arguments that may be marshaled to support these
principles. If I am correct, thin consent will justify certain kinds of monitoring
when employment conditions favor the employee. Absent such conditions actu?
ally occurring, we can imagine what an employee would choose if she were in a
pro-employee environment. If she would agree to a type of monitoring from this
vantage point?either because every business in her field will monitor in the
way she is considering or she agrees for some other reason (maybe because the
new monitoring policy will benefit her in some way)?then the monitoring is
permitted. In the next section I will pursue a bottom-up strategy by presenting
certain cases and then examining how the proposed model fits with these cases
and our intuitions about them.
Test Cases and Illustrations
Let us begin with an easy one first. Suppose that one day an employee is
approached by his boss and is informed that the company will be moving to a
new building. Excited about the new digs, the employee tours the recently con?
structed office and is quite dismayed. It seems that management has been reading
Bentham’s Panopticon and the site has been built so that employee cubicles can
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be monitored by an overseer who can’t himself be seen. The video cameras found
in the new office have been placed so that computer screens can be watched as
well as facial expressions, body motions, and the like. The employee complains
and asks what conceivable purpose such a system could have at an insurance
company. Management replies that only someone with something to hide would
object and this system of monitoring will allow hard workers to be recognized
and fairly compensated.
We may now ask if such a monitoring system is justified in relation to hypo?
thetical thick consent. I think it is clear that an individual who is modestly
interested in protecting privacy and in a pro-employee environment would leave,
other things being equal, and find similar employment elsewhere. The “other
things being equal” exception is important because if management were to double
employee salaries then maybe a deal could be made?no privacy at work for lots
of cash.17 Outside of such offers the presumption in favor of privacy rights would
not have been surpassed for this type of surveillance.
Before moving on, I would like to briefly address the kinds of replies that
were offered for why employees shouldn’t oppose this kind of monitoring. First,
that an employee should have nothing to hide is irrelevant. It is her private life
that is being monitored and so it is up to her to deny access. Whether or not she
has something to hide is nobody’s business. We all may have perfectly normal
bedroom lives and have nothing to hide in this area. Nevertheless, mounting a
company video camera and wake-up siren on the bedroom wall cannot in the
least bit be supported by such reasons. Employee benefit is equally, and for the
same reasons, dubious.
Consider a different case. Suppose in an effort to eliminate “time theft” a
company begins using “active badges” that monitor employee movements while
at work. These badges are sophisticated enough to monitor time spent in a spe?
cific area. So, employees who linger in the break room, arrive late, leave early,
and stroll the halls, will be discovered and treated accordingly.
Few would deny that time monitoring is a necessary part of any business.
Nevertheless, there will be more and less invasive ways to monitor time.
Bentham’s Panopticon with a time overseer is one of the more invasive meth?
ods. Given that there are various less invasive ways to obtain this information
about employees, it would seem that a constructed individual interested in main-
taining private domains would not agree to this type of surveillance. Thus for
most companies such a policy would be unjustified. There may be exceptions
however. For example the U.S. Pentagon, Arms R&D departments, and the like,
may have to maintain this level of monitoring to ensure secrecy.18 Monitoring
college professors in this way is clearly unjustifiable.
A final case that I would like to discuss deals with remote computer monitor?
ing. The case is provided by John Whalen.
A recent ad for Norton-Lambert’s Close-Up/LAN software package tempted
managers to “look in on Sue’s computer screen…. Sue doesn’t even know
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you’re there!” . . . these “remote monitoring” capabilities . . . allow net?
work administrators to peek at an employee’s screen in real time, scan data
files and e-mail at will, tabulate keystroke speed and accuracy, overwrite
pass words, and even seize control of a remote workstation. Products like
Dynamics Corp.’s Peak and Spy; Microcom Inc.’s LANlord; Novell Inc.’s
Net Ware; and Neon Software’s NetMinder not only improve communica?
tions and productivity, they turn employees’ cubicles into covert listening
While this kind of employee monitoring may yield some benefits, the
preponderance of the evidence would suggest otherwise. Some studies have
shown that these monitoring systems produce fear, resentment, and elevate stress
levels.20 Another study concluded that “the introduction of computerized
performance monitoring may result in a workplace that is less satisfying to many
employees … [and] creates a more competitive environment which may decrease
the quality of social relationships.”21
Putting aside the unsavory consequences we may ask if such monitoring passes
either test under consideration. First the test of thin consent would not be passed
if the employees being monitored were not notified of such practices. Given the
absence of a clear pro-employee environment in most industries that would use
such surveillance, even if employees were notified the consent would seem too
thin. Moreover, remote computer monitoring would fail the test of hypothetical
thick consent for most companies. Individuals who did not know if they were
the owner, manager, or employee would not agree to such privacy invasions.
The presumption in favor of privacy would thus remain intact.
As noted in the opening, high-tech surveillance is promising to turn the mod?
ern workplace into an Orwellian nightmare achieving Bentham’s ideal workhouse
for prisoners?”universal transparency.” And even if such monitoring somehow
produced an overall net increase in utility, it would still be unjustifiable. Some?
times the consequences be damned. Not that I think generally good consequences
could be had from such surveillance. Arguably, human beings are the most pro?
ductive and creative in conditions completely opposite from those found in
Bentham’s Panopticon.
In this article I have argued that individuals have rights to privacy that shield
us from the prying eyes and ears of neighbors, governments, and corporations?
electronic eyes and ears are no more welcome. If we begin with a fairly strong
presumption in favor of privacy and test different types of employee monitoring
with thin and hypothetical thick consent, many currently used kinds of surveil?
lance will be unjustified. Arguably this consent is necessary and sufficient for
overriding or relaxing privacy rights with respect to employee monitoring.22 We
will each spend at least a quarter of our lives and a large part of our most produc?
tive years at work. This environment should be constructed to promote creative
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and productive activity while maintaining the zones of privacy that we all cher-
ish. Although privacy rights are not absolute, it would seem that in a networked
world filled with devices that may be used to capture information about each of
us, we should take privacy invasions?whether at home, on a public street, or in
the workplace?much more seriously.
This paper was presented at the APA Pacific Division Meetings (April 5-8,2000). I would
like to thank Nancy Snow, Mark VanHook, Bill Kline, and the other session participants for
their comments and suggestions. I would also like to thank Kimberly Moore, Scott Rothwell,
and an anonymous reviewer at Business Ethics Quarterly for reading and commenting on an
earlier draft.
Marlene Piturro, “Electronic Monitoring,” Information Center, July 1990, p. 31; quoted
in Richard Spinello’s Ethical Aspects of Information Technology (Englewood Cliffs, N.J.:
Prentice Hall, 1995), p. 141.
2J. Bentham, Panopticon (The Inspection House), originally published in 1791.
3A longer version of this section appears in my article “Intangible Property: Privacy,
Power, and Information Control,” American Philosophical Quarterly 35 (1998): 365-378. I
would thank the editors of APQ for allowing me to present this material here.
4Alan Westin, “Privacy in the Modern Democratic State,” in Ethical Issues in the Use of
Computers, ed. D. Johnson and J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 187.
5W. A. Parent, “Privacy, Morality, and the Law,” Philosophy and Public Affairs, Fall
1983, pp. 269-288; reprinted in Ethical Issues in the Use of Computers, ed. D. Johnson and
J. Snapper (Belmont, Calif.: Wadsworth, 1985), p. 203 (all page citations refer to the reprint).
6Legal scholar William Prosser separated privacy cases into four distinct but related torts.
Intrusion: Intruding (physically or otherwise) upon the solitude of another in a
highly offensive manner. For example, a woman sick in the hospital with a
rare disease refuses a reporter’s request for a photograph and interview. The
reporter photographs her any way, over her objection.
Private facts: Publicizing highly offensive private information about someone
that is not of legitimate concern to the public. For example, photographs of an
undistinguished and wholly private hardware merchant carrying on an adulter-
ous affair in a hotel room are published in a magazine.
False light: Publicizing a highly offensive and false impression of another. For
example, a taxi driver’s photograph is used to illustrate a newspaper article on
cabdrivers who cheat the public when the driver in the photo is not, in fact, a
Appropriation: Using another’s name or likeness for some advantage without
the other’s consent. For example, a photograph of a famous actress is used
without her consent to advertise a product.
Dean William Prosser, “Privacy,” Califomia Law Review 48 (1960): 383, 389, quoted in
E. Alderman and C. Kennedy, The Right to Privacy (New York: Alfred A. Knopf, 1995), pp.
155-56. What binds these seemingly disparate cases under the heading “privacy invasions”
is that they each concern personal information control. And while there may be other morally
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objectionable facets to these cases?for example the taxi driver case may also be objection-
able on grounds of defamation?there is arguably privacy interests at stake as well.
7Clinton Rossiter puts the point succinctly:
Privacy is a special kind of independence, which can be understood as an at?
tempt to secure autonomy in at least a few personal and spiritual concerns, if
necessary in defiance of all the pressures ofthe modern soeiety. . . . It seeks to
erect an unbreachable wall of dignity and reserve against the entire world. The
free man is the .private man, the man who still keeps some of his thoughts and
judgments entirely to himself, who feels no over-riding compulsion to share
everything of value with others, not even those he loves and trusts.
C. Rossiter, Aspects of Liberty (Ithaca, N.Y.: Cornell University Press, 1958) quoted in
Westin, “Privacy in the Modern Democratic State,” p. 188.
8For more about privacy rights see E. Hendricks, T. Hayden, and J. Novik, Your Right to
Privacy (Carbondale: Southern Illinois University Press, 1990); F. Cate, Privacy in the In?
formation Age (New York: The Brookings Institution, 1997); B. Givens, The Privacy Rights
Handbook (New York: Avon Books, 1997); Charles Fried, “Privacy,” Yale Law Journal 11
(1968): 477; A. Westin and M. Baker, Databanks in a Free Soeiety (New York: Quadrangle
Press, 1972); J. Rachels, “Why Privacy is Important,” Philosophy and Public Affairs 4 (Sum-
mer 1975): 323-33; and Paul Weiss, Privacy (Carbondale: Southern Illinois University Press,
9IDG Communications, Inc, Infoworld, October 22, 1990; quoted by Anne Wells
Branscomb in Who Owns Information? (New York: Basic Books, 1994), p. 92.
10Alana Shoars filed a wrongful termination suit. “The lower court agreed with Epson’s
lawyer that neither state privacy statutes nor federal statutes address confidentiality of E-
mail in the workplace and dismissed the case.” Branscomb, Who Owns Information? p. 93.
See Alana Shoars v. Epson America, Inc, No. SWC112749 (L.A. Super. Ct. 1990).
“Branscomb, Who Owns Information? p. 93.
12While the courts have ruled that employers cannot monitor their workers’ personal calls,
the Electronic Communications Privacy Act of 1986 grants bosses a “business-use excep-
tion,” which allows supervisory and quality-control monitoring. J. Whalen, “You’re Not
Paranoid: They Really Are Watching You,” Wired Magazine, March 1995. See also Briggs v.
American Filter Co., 704 F.2d 577 (11th. Cir. 1983), Watkins v. L. M. Berry, 704 F.2d 579
(11th. Cir. 1983), and Hendricks et al., Your Right to Privacy, Part 2.
13Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977);
reprinted in Justice: Alternative Political Perspectives, 3rd ed., ed. James Sterba (Belmont,
Calif.: Wadsworth, 1999), p. 126 (all page references refer to the reprint).
14J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 136?
142. The hope is that Rawls’s veil of ignorance will serve as a device that ensures impartiality.
15Dworkin, Taking Rights Seriously, pp. 126-27.
,6Ibid., p. 127.
17Employment agreements grant rights, powers, liberties, and duties to both parties. Thus
an employee may trade privacy for some kind of compensation like time off or the opportu?
nity to learn. When tradeoffs such as these have occurred we may take the obligations,
generated by the agreement, as prima facie?alas, the agreement may have been brokered in
unfair conditions. If I am correct, fairness of conditions and binding agreements that justifi-
ably relax rights are guaranteed when the tests of thin and hypothetical thick consent are
18Even in these cases the different types of surveillance used should be made explicit to
every employee.
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19J. Whalen, “You’re Not Paranoid: They Really Are Watching You,” Wired Magazine,
March 1995.
20Richard Spinello, Ethical Aspects of Information Technology (Englewood Cliffs, N.J.:
Prentice Hall, 1995), p. 128.
21R. H. Irving, C. A. Higgins, and F. R. Safayeni, “Computerized Performance Monitor?
ing Systems: Use and Abuse,” Communications ofthe ACM, August 1986, p. 800.
22I take consequentialist concerns to be factored into laws or market demands. That is,
hypothetical thick consent includes utility maximization arguments for requiring licenses,
safety regulations, and the like.
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Issue Table of Contents
Business Ethics Quarterly, Vol. 10, No. 3 (Jul., 2000), pp. 545-767
Front Matter
It’s Nothing Personal, It’s Just Business: Economic Instability and the Distribution of Harm [pp. 545-561]
A Framework for Discussing Normative Theories of Business Ethics [pp. 563-591]
The Second Paradox of Blackmail [pp. 593-622]
Management Ethics without the Past: Rationalism and Individualism in Critical Organization Theory [pp. 623-643]
Making Sense of Postmodern Business Ethics [pp. 645-658]
Smith, Friedman, and Self-Interest in Ethical Society [pp. 659-674]
Role Models and Moral Exemplars: How Do Employees Acquire Virtues by Observing Others? [pp. 675-696]
Employee Monitoring and Computer Technology: Evaluative Surveillance v. Privacy [pp. 697-709]
Taming the Corporate Monster: An Aristotelian Approach to Corporate Virtue [pp. 711-723]
On Social Psychology, Business Ethics, and Corporate Governance [pp. 725-733]
Response Articles
On Messick and Naturalism: A Rejoinder to Fort [pp. 735-742]
Review Article
Review: Inner-Personal Morality [pp. 743-759]
Book Review
Review: untitled [pp. 761-767]
Back Matter

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