Choose Privacy Week 2016 – Privacy and Respect for Individuals

Choose Privacy Week, Privacy, Professional Ethics

By Neil Richards
(crossposted from

Have you looked at your Google or Bing search history recently? You should. When you do, you’ll find a list of all the questions you’ve asked your digital assistant. Maybe you asked who won Super Bowl XX (It was Da Bears.). Maybe you asked where else you’d seen that new actor on Game of Thrones (It was The Exorcist). Or maybe you wanted to learn more about Bernie Sanders, or Donald Trump, or radical Islam, or the Klan, or shoe fetishists. Whatever you searched for, it’s worth a look. You’ll see a history of your mental wonderings and wanderings, your curiosities. In a very real sense, what you’ll see is a partial transcript of the operations of your mind.

When we use search engines, whether it’s Google, or Siri, or the voice features on Roku boxes or Samsung TVs, we do so naturally, assuming that our request is confidential and that no one else is listening. Sometimes we’re curious about facts we don’t know, including facts we might be embarrassed to admit we don’t know. Other times we might be curious about an idea, and it might not be an idea that our friends, acquaintances, or co-workers might find interesting or even acceptable. If they knew that we were curious about it, we might not ask the question, for the same reasons of politeness we may not bring up politics or religion or sex in person.

Privacy gives us the ability to ask that question. It gives us the ability to learn about ideas and facts that are disfavored or awkward or taboo. This is the case whether it’s a privacy protection coded into a smartphone app or the professional norms of librarians, lawyers, or psychologists. This special kind of privacy is called “intellectual privacy,” the ability to make sense of the world and our place in it by thinking, reading, and confiding with intimates, protected from the discouraging eye or interference of others. If other people knew our interests, they might not respect us. And if we knew what they were really interested in, we might feel the same. Privacy allows us to think for ourselves, and giving privacy to others grants the same courtesy to them. Privacy promotes respect, and it allows us to respect other people with whom we might disagree violently. And that’s a good thing for several reasons.

First, we live in a diverse society in which our fellow humans have a wide variety of beliefs about politics, beauty, morality, and what it means to live a good life. We also tell ourselves that this is a good thing; that the ability to believe what you want on your own terms is the essence of both a good society and what it means to be a free human being. Privacy of our beliefs – intellectual privacy – is essential to the creation of a sustainably diverse society. Being able to express our differences is important, which is why we also cherish our rights of freedom of speech. So too is the ability to privately keep those beliefs to ourselves, to question them, to develop new ones apart from the glare of unwanted disapproval, and to vote on the basis of those ideas in the privacy of the ballot box. We respect other people with their beliefs, and we rightly demand the same of them. Agreeing to disagree is thus the kind of respect that is needed if we want a society in which we are free to be different individuals, whether dissenting, deviant, or just plain weird.

Second, some of those ideas that are dissenting, deviant, or just plain weird might turn out to be very important. Most if not all of our most cherished ideas were once highly controversial, and far too many people suffered or died for those beliefs. Consider a few of our most fundamental social commitments – all people are equal regardless of race, gender, sexual orientation, or political belief; the people should be in charge of the government, rather than the other way around; people should be free to choose their religious beliefs (or no religion at all) without the government or the majority imposing their upon them. Each of these ideas was once highly subversive and divisive. Each of them pushed back against centuries of orthodoxy. More importantly, each of them needed room to develop and grow, to be refined and be made more persuasive before they were ready for general acceptance.

To be sure, ideas are dangerous. Long ago, Justice Oliver Wendell Holmes argued that “every idea is an incitement” and that “eloquence may set flame to reason.” If we are to live in a free society, we have to trust our fellow citizens with the freedom to believe what they want. They might betray that trust and break the law, but the history of human governments has shown that trusting people with their free minds is far better than policing orthodoxy. In a free society, individuals have to be the ones that choose whether ideas are good or bad, beautiful or ugly, or somewhere in between. And without the intellectual privacy to work that out for themselves, without that respect given to them by their fellow citizens and their government, we cannot say that we truly have intellectual or political freedom.

Privacy matters for a variety of reasons, but one very important reason is that without privacy, we might lack the ability to think for ourselves, and to respect other people who might think differently or even be curious about something new, even if it’s something merely trivial in their search engine history.

Neil Richards is Professor of Law at the Washington University School of Law in St. Louis, Missouri, an affiliate scholar with the Yale Information Society Project and the Stanford Center for Internet and Society, a fellow with the Center for Democracy and Technology, a trustee of the Freedom to Read Foundation, and a member of the American Law Institute. He writes and teaches about privacy, technology, freedom of speech, and intellectual freedom, and is the author of the book Intellectual Privacy: Rethinking Civil Liberties for the Digital Age (Oxford Press 2015), along with many other scholarly and popular articles. He holds degrees in law and history from the University of Virginia, and is a former law clerk of the late William H. Rehnquist, Chief Justice of the United States.

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