Right of privacy

Wes White and Lane Keister have been accused of misconduct for passing along some “private” information. Since the issue of privacy often crops up on the Internet, it’s worth discussing the issue in general.

1. The paradox of privacy

Suppose someone says to you, “If I tell you a secret, will you keep it?” How should you respond?

Questions like this can generate a dilemma: since you don’t know what they’re going to say before they say it, you’re in no a position to give informed consent. If you knew you in advance what they were going to say, perhaps you’d rather not hear it.

2. The seal of the confessional

At one end of the spectrum is the Catholic tradition. If a serial killer confesses to a priest that he’s murdered 20 women, and he plans to murder the 21st victim right after he leaves church, the priest is honor-bound to keep his secret.

The obvious problem with this tradition is the assumption that a speaker has the right to impose silence on the listener, regardless of what the listener hears. Is that a justifiable demand?

The short answer is no. One party doesn’t have the unconditional right to bind the conscious of another party. In the respect he does not enjoy the expectation of privacy.

By sharing this information with the second party, the first party thereby makes the second party complicit. And that that point the second party has his own responsibilities. Either way, he is responsible for what he does with this information.

The second party is no longer in the same moral position he was before he came into receipt of this information.

3. The whistleblower

At the opposite end of the spectrum is the whistleblower. A whistleblower has inside information. Indeed, he’s frequently an insider. That’s how he is in the know.

Most of us recognize that there are situations in which it is not only permissible, but obligatory to leak the incriminating evidence. By definition, a whistleblower doesn’t seek the permission of the guilty party to release this information.

4. Private media

i) Some information is technically private in the sense that the medium which stores or transmits the information is technically private. Such information is “private” even though the information may already be available in the public domain.

ii) There are also situations in which it’s possible to publicize “private” information while preserving the confidentiality of the source, viz. anonymous sources.

5. Private content

By contrast, some information is inherently private in nature. I don’t think there’s a mathematical formula for discerning this. It’s just a matter of common sense.

6. Harm

i) As a rule, we should avoid harming the reputation of others. A breach of confidence is illicit when that harms the reputation of another without due cause.

ii) On the other hand, not everybody is entitled to have a second party protect their reputation. Some people richly deserve to have their reputation ruined.

iii) In addition, harm can cut in more than one direction. Harming one individual may shield another individual from harm.

Take a con man. He makes his living by harming others. If you expose him, you harm the con man–but that’s justifiable since by so doing, you shield the innocent from the harm he would do them.

Or, to take a different example, a witness may know that the defendant is innocent, yet the witness refuses to come forward for fear of reprisal. If the witness remains silent, the defendant will be harmed by his “guilty silence.” On the other hand, if the witness is identified, or compelled to speak, the witness may come to harm.

Right now I’m not discussing what should be done in that situation. It varies. I’m just drawing attention to certain complexities and tradeoffs.

7. Friends and strangers

i) As a rule, we have greater obligations to friends than strangers. If a friend shares something with you in confidence, and you violate his trust or betray his confidence, that is generally wrong precisely because he was your friend. He had an expectation of privacy. You owed it to him to keep his secret.

And this applies to analogous cases, viz. siblings, spouses, parents and children.

ii) But at presumption admits two caveats:

a) On the one hand, a friend doesn’t have the unconditional right to swear you to secrecy regardless of what he says.

b) On the other hand, we also have some universal obligations to strangers.

iii) On a related note, a third party, who is not a party to the confidential arrangement, may come into receipt of that information. The third party doesn’t have the same obligations to the first party as the second party.

That’s not to say a third party is a liberty to divulge just anything he happens to learn about the first party. But that’s not the same thing as a violation of trust, for the first party never took the third party into his confidence. The third party was never a confidant. And the third party may have no standing obligations to the first party.

8. Tact

People will often say things in private that they won’t say in public. Sometimes that’s deceitful or cowardly. At other times that’s tactful.

Once again, I don’t think there’s a mathematical formula for discerning the right course of action. It requires a sense of discretion.

9. Prima facie duties

All things being equal, a party is entitled to privacy where there’s an expectation of privacy. Put another way, there’s a moral presumption against divulging this information.

All things considered, there are other considerations which sometimes override that expectation.

10. Historians

Historians or biographers frequently publish private letters and diaries of famous men and women. I doubt the average reader gives that a second thought, even though this material was never intended for public consumption. What should we make of that practice?