Computers, Privacy & the Constitution

The Public/Private Dichotomy

-- By KotaroKubo - 24 Mar 2008

Understanding of the Public/Private Dichotomy

The distinction between ‘public’ and ‘private’ spheres is a basis for a right to privacy. In order to determine to what extent a right to privacy is protected, it is essential to understand what ‘private’ means. Private is understood nothing but the opposite of public. Private is generally defined in dictionary as ‘for or belonging to one particular person or group only’ or ‘(of a person) having no official or public position.’ The former New York Governor Elliot Spitzer said that his patronage of prostitutes is a “private matter,” though he soon added his apology to the “public.” He tried to defend himself by assuming the public/private dichotomy, though he seemed not to know that a prostitute was called “public woman” in the past.

Suspects in the Public/Private Dichotomy

This public/private dichotomy has recently been suspected and unsettled, especially in the following four contemporary contexts.

1. Communalization of ‘Private’ Sphere: It has been often discussed that private companies, which well enjoyed private autonomy, should have certain public responsibility named CSR. Moreover, the role of NGOs becomes larger in the policy-making area which was traditionally considered as a sole role of the public sector.

  • I don't know where the idea of policy-making as "public sector" comes from. "Private citizens" have always been engaged in democratic governance in the United States. They're supposed to be in charge, right?

2. Privatization of ‘Public’ Sphere: The market has become much more important so that a state is outsourcing its functions to private sectors. On the other hand, the ‘domestic’ issues such as DV, child abuse and nursing care, etc. has been discussed in the context of social responsibility which is to be incurred by society at large.

3. War on Terror: We long assumed that war was ‘public’ state’s action, as shown in the humanitarian law which prohibits attacks on unarmed civilians. War on terror has dramatically changed its nature. Nowadays wars have barged into the private sphere.

  • In what sense?

4. Information Society: Last but not least, information society raises new questions about this old dualism. Is any individual’s private activity on Internet subject to confidentiality as private affair? Should we tolerate a surveillance camera on public streets? Is our government permitted to collect information regarding private transaction between an individual and private companies?

Those contemporary challenges make us to reconsider the origin and validity of the public/private dichotomy.

  • No more than legal realism did eighty years ago, it seems to me.

The Origin of the Public/Private Dichotomy

In the Western society, a right to privacy is usually acknowledged as an individual’s right. Historically, however, private sphere which is contrasted with public sphere does not necessarily mean individual’s realm. In ancient Greece, the structure of a society was understood as a dichotomic order consisting of police (res publica) and home (oikos). I believe this as the origin of the public/private dichotomy in the Western society. That tradition, which associates police and people with ‘publicness,’ has been inherited to nowadays as shown in the philosophers like Jürgen Habermas and Hannah Arendt. Since eighteenth century, more modernized and sophisticated dichotomy has been introduced so that it draws a line between “civil society” as private sphere (family and local community) and “nation” as public sphere. We can see this dichotomy in the legal field (i.e., a distinction between public/private laws) too.

Not only the private sphere, which is contrasted with public sphere, but also a right to privacy has not been necessarily connected with an individual. It is logically possible for a right to privacy to be recognized collectively among certain people within a group. I call such sense of interiority ‘collective privacy.’ We can see an ideal type of such collectiveness in non-Western society still now. They have no secret within their group. The reason for the dependency within their group is not because they have a weak sense of privacy but because they recognize their group as their ‘private’ sphere (interiority). They have as strong a sense of privacy as do the Western people, if we come to their sense of their ‘public’ sphere (exteriority) where they do not wish or permit to share their personal information with others.

Although not being documented, it is likely that the distinction between interiority and exteriority derives from animals’ territorial activity. It would not be surprising that, because of such instinctive nature, human beings have been afraid of any possible danger which may arise if their enemy knows their personal information such as pattern of activity and heel of Achilles.

  • "Territorial activity" seems to me a conceptual mistake. We are closely related to other social primates that live in bands and some of those species are weakly territorial, but all both identify "us" and "them," but have complex relations with non-self bands. In general, social primates--with few exceptions--"cast out" males at puberty, and these males join other bands and mate exogenously. Clan segmentation societies among humans may well have developed from such origins. But the conception of the "public" doesn't have such a heritage, does it?

Repositioning of States

These analyses allow us to recognize the relativity and arbitrariness of the borderline between public/private spheres. The borderline between public and private spheres has not been clear and static; rather they may overlap and change over time and according to situation. We generally understand that a state, which has been considered as an invader of peoples’ rights, stands in peoples’ exterior sphere. However, a state is conceived as their interior defender for those who readily grant the state an authority to invade their privacy in the name of security.

Nation-states can be explained by the notion of ‘collective privacy,’ since nationalism is an idea of the interior/exterior dichotomy which makes our fellow citizens to guard against non-citizens. Why is it possible to make such a cursory collectivization? I think it is because we have created a fiction of our nation as the imagined community, as persuasively elaborated by Benedict Anderson.

  • Maybe, but all this theoretical huffing and puffing covers only the "nation" part of the "nation-state." Once the concept of the state is added, and states are seen to exist both coextensively with nations, and as divisions of nations or multi-national empires, the analysis begins to fail.

From Privacy to Autonomy

A right to privacy cannot be defended in the contemporary world where even states can be recognized as an interior existence. This is mainly because the public/private dichotomy is neither static nor logical.

  • But privacy is not about the public/private distinction only, because the individual is not merely a component of corporate interests.

Therefore, if we cherish a right to privacy, we need to separate it from this complicated dichotomy. Where can we find a new more stable foundation for a right to privacy? I will be satisfied with merely mentioning some possibility. First, for the Western society which places more emphasis on the individual autonomy, it is possible to understand privacy as protection of autonomous living.

  • Surely you don't need to "suggest" something that has been obvious enough to be a staple of Supreme Court constitutional doctrine for more than forty years? And the whole subject of my course?

It can be restated as an individual right to self-determination. For other societies which place more emphasis on the autonomy of community, on the other hand, it can be understood as a communal right to self-determination.

  • Or the process of stripping away antecedent but unrecognized privacy might result in the expansion of individualism in such societies?

  • I think this was a persistently thoughtful paper, but it would have benefited from a consideration at the outset of my decomposition of privacy into "secrecy," "anonymity," and "autonomy." Had you used the more specific words rather than the general and confusing term, you would not have been carried away by another meaning of "private"--namely the one captured as the antithesis of "public"--and you would have been able to make quicker progress. Not towards this paper in its present form, to be sure, but towards something a little more intellectually reliable. That's why I suggested such an analysis (in the sense of breaking a complex idea down into its component parts) in the first place.


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r3 - 23 Jan 2009 - 15:29:30 - IanSullivan
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