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Now that we have discussed both concepts of liberty, we can turn our attention to the relationship between privacy and the two concepts of liberty.

6.3.1 Privacy and negative liberty

At the end of the 19th_{century, justices Warren and Brandeis (1890) made the}

first explicit reference to a right to privacy in their renowned articleThe Right to Privacy: The Implicit Made Explicit. Dismayed as they were by the practices of the gossip press which used “new inventions and business methods” to invade the “sacred precinct of private and domestic life”, Warren and Brandeis set out to explore the possibility and origin of a right to privacy. Warren and Brandeis came to the conclusion that the right to privacy formed part of the inviolate personality and saw it as: “the next step that must be taken for the protection of the person, and for securing to the individual… …the right ‘to be let alone’” (Warren, Brandeis 1890, p. 193). According to Warren and Brandeis the right to privacy was, much like the concept of negative liberty, a “right as against the world”. From this definition and the section on negative liberty we may conclude that the right to privacy is deeply rooted in the idea of negative liberty. Privacy protects us from the observing gaze of others and enables us to hide certain elements of our behaviour or personality from outside scrutiny.

In chapter 5 we have established that with emergence of electronic record keeping two distinct lines of privacy theory developed. When we examine the concept of negative liberty we can associate it primarily with the privacy theory that is based on the traditional notions of the ‘private sphere’ and thus with secrecy and anonimity. When we observe the legal framework for the protection of privacy and the regulation of surveillance practice, we can establish that this line of privacy theory is dominant in the law of both the Netherlands and the United States. Thus, the current legal framework is primarily concerned with the protection of negative liberty.

Privacy forms a major element of negative liberty and it may even seem somehow logical to qualify negative liberty and privacy as roughly the same concept, the right ‘to be let alone’ so to speak. But while the right to privacy certainly plays a key role in safeguarding negative liberty, I believe that they are most certainly not the same concepts, and I do not feel privacy can offer the amount of protection required for negative liberty. Negative liberty is made

up of more elements than the sanctity of the home, corporeal privacy, or the right to keep certain information secret. Not every form of interference is by definition a violation of a private sphere and as such protected by the right to privacy. Negative liberty means freedom from as much interference as possible in a society, not just freedom from interference into a predefined private sphere. I believe it is safe to assume that not every violation of liberty constitutes a violation of privacy. If, for instance, I am physically constrained by a person from leaving or entering a certain area, my freedom is diminished while my (informational) privacy is not. When I am denied the freedom of religion or the right to protest my liberty is diminished while my privacy is not.

I believe that the right to privacy is therefore ill-suited for the complete protection of negative liberty in the information society because it relies, by definition, on a distinction between the public and the private. The right to privacy in the ‘classic’ sense protected a narrowly defined private sphere and while the scope of the right to privacy has broadened it still relies on this distinction between the public and the private sphere. When a violation of my freedom occurs that does not entail the violation of a ‘private component’ of my life (such as my house, correspondence, or personal information), the right to privacy cannot provide any protection. This means that certain im- portant elements of negative liberty that do not have a ‘private component’, such as free speech and freedom of information, find little or no protection in the right to (informational) privacy and are possibly neglected when it comes to issues of information and communication technology and liberty.

Moreover, since privacy is generally regarded as an individual right, individuals can willingly and unwillingly release (sensitive) personal informa- tion into the public domain themselves. As I will describe more in depth in section 6.4, the vagueness and high levels of abstraction associated with the right to privacy coupled with the unclear distinction between ‘the public’ and ‘the private’, contribute to a situation where individuals unwittingly release personal information leading to ade factoerosion of liberty.

6.3.2 Privacy and positive liberty

The concept of positive liberty is all about making rational and informed choices about what is right in life. As we have seen in section 6.1, we can only make free and rational choices if we are granted some measure of privacy. The Panopticon shows us that a man who has absolutely no privacy cannot make any choices for himself and is thus enslaved. It may be concluded that privacy surely plays an important role in safeguarding the concept of positive liberty. The Panopticon is a power structure that creates power asymmetries through total surveillance and separation. If surveillance is made less effective

by granting the observed a measure of privacy, the balance of power will shift somewhat towards the observed. As such, privacy protects positive liberty. The way the privacy can protect us from manipulation and coercion in the ‘Superpanopticon’ is less straightforward than it is in Bentham’s model prison. As I shall describe in section 6.4, the relationship between electronic surveillance, (informational) privacy, and liberty in the information society is far less clear than the relationship between surveillance and privacy in Bentham’s Panopticon.

When we take the Christman’s (1991) interpretation of the concept of positive liberty, that is freedom from coercion and manipulation, we can establish that positive liberty is more concerned with the second line of privacy theory described in section 5.4, which conceptualises informational privacy as a means to guarantee self-determination and autonomy. The idea is that by setting rules for the use of personal data we can avoid the negative effects of extensive surveillance, mostly notably those caused by the Panopticon and the unseen Panopticon. But while (informational) privacy plays an important role in safeguarding positive liberty, other human rights such as the right to equality, freedom of speech, and freedom of association, also play an important role in the freedom of the individual and that of society as a whole. I shall elaborate further on this issue in the next section and in chapters 7 through 9.

6.4 DIFFICULTIES WITH THE RIGHT TO PRIVACY IN THE INFORMATION SOCIETY