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Privacy as Virtue: towards an actor based approach to privacy regulation

This research focuses on the criticism of the contemporary legal privacy paradigm regarding two points: (1) It is based on the individual right of a legal subject, and (2) this individual right refers to the personal (non-public) interests of that legal subject. An ethical perspective will help to understand the critique and to provide for an alternative, virtue-based approach to privacy regulation. This approach (1) refers to the responsibilities of the actor of a privacy violation and (2) judges his actions on their own merits (that is, virtuousness), without referring to the interests of the legal subject.

Traditionally, the legal privacy paradigm is focused on the individual in two ways. First, both in juridical doctrine and in jurisprudence, privacy is predominantly regarded as a subjective right: It gives the legal subject control over his personal data and allows him to enter a legal dispute when this right is violated. Second, privacy is usually not regarded as having an intrinsic value, but is evaluated in relation to achieving other, individual interests, such as autonomy , negative freedom and dignity.

In a world where information flows steadily become bigger and more complex, this individual based paradigm is increasingly criticized on two grounds. (1) Since privacy is a subjective right, the legal subject must substantiate his specific, legitimate interest in a legal dispute. Thus, it has to be plausible to a judge that the subject’s right to privacy is violated by a specific practice, or that it is likely that this will occur. (1a) However, with the emergence of registration techniques, the legal subject is often unaware that his behavior is monitored in the first place. (1b) Registered and stored data are often analyzed by generic data mining rules and algorithms, which harvest large databases and create aggregated data and group profiles. It is difficult to pinpoint the specific individual aspect and interest in this process. (1c) Specific to the right to privacy is that even when a legal dispute is won, the damage is often already done and irreparable.

(2) Like privacy, privacy violations are usually seen as instrumental to achieving certain values. For example, the state’s close monitoring of the behavior of citizens is often legitimized as being necessary in relation to security policies (Foucault; Scott). Since societal values relating to for example security are often seen as higher or as more important than individual values relating to autonomy, dignity, or freedom, privacy is often outweighed by other interests both in the process of law making and in judicial decision making.

A virtue-based approach to privacy regulation will not balance public interests with individual claims to privacy, but assess whether an actor has lived up to his responsibility to act in a virtuous manner. While the current legal paradigm (1) is based on the individual right of a legal subject, and (2) this individual right refers to the personal (non-public) interests of that legal subject, a virtue-based approach to privacy regulation (1) refers to the responsibilities of the actor of a privacy violation and (2) judges his actions on their own merits (that is, virtuousness), without referring directly to the specific interests of the legal subject. The envisaged benefit of a virtue-based approach is that actors could be evaluated and judged even without the right or interest of a specific legal subject being violated. This facilitates pre-emptive action against future privacy violations and could offer a satisfying alternative for situations in which it is difficult to pinpoint specific individual interests (e.g. with regard to generic data mining rules and algorithms which harvest large databases and create aggregated data and group profiles). Both could prove indispensable in a world where information flows steadily become bigger and more complex.

To develop this approach, first, the juridical framework and its critics are discussed. Second, an ethical perspective will be provided to interpret the criticism and to offer an alternative approach to privacy regulation. Third, this alternative, virtue-based approach will be analyzed and further developed in legal terms; a case study regarding state surveillance will be provided to analyze the possible pros and cons of a virtue-based approach to privacy regulation. The hypothesis is that a virtue-based approach will be able to overcome the current critique of the legal privacy paradigm. The study will principally focus on the relationship between the state and the citizen, that is the relationship that in legal terms is predominantly covered by constitutional law, in the European context.

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