How did privacy come to be enshrined as a human right?

The protection of our private life, from the Protestant Reformation to cyberpunks

Illustration by David Marques / IF (CC BY-SA)

As the ACLU’s report on informational privacy in the digital age points out, there is a disconnect between the privacy guarantees we have come to expect under the International Bill of Rights, and the ways in which platforms and services record and use data about us. While people are quick to express concerns about their privacy, especially in the aftermath of events such as the Cambridge Analytica saga, the steps they take to ensure their online safety rarely reflects their worry, resulting in a privacy paradox.

As a recent report published by Doteveryone pointed out, “People feel disempowered by a lack of transparency in how online products and services operate. 89% want clearer terms and conditions, half would like to know how their data is used but can’t find out.” The power imbalance between individuals and the services that can access to data about them has led to a normalisation of privacy abuses. In hopes of understanding our current situation, I looked back at the origins and history of the right to privacy in the Western world. While this survey is not exhaustive, I hope it can shed light on the conceptual evolution of privacy, and help us understand how principles and practices got so out of step with each other.

The right to keep your thoughts to yourself

In an excellent podcast episode on the history of privacy, the hosts of Decode DC, Eric Krupke and Rachel Quester, drew links between the Protestant Reformation of the sixteenth century and the emergence of a right to privacy in England. They argued that at the time, the Catholic tenet that the church had a right to its parishioners’ thoughts, and a responsibility to make sure they were pure was antithetical to a notion of privacy. Protestant reformers, in contrast, proposed a more individual relationship with God and the Bible, keeping thoughts free from interference from the church.

Protestant reformers also advocated for the divine right of kings, which resonated with Henry the VIII, who was facing opposition from the Catholic church in his attempts to annul his marriage to Catherine of Aragon. As he divested from Catholicism and consecrated Protestantism as the nation’s religion, Protestant principles, such as the notion of an individual relationship with God and the Bible, became progressively ingrained in English culture. As such, Protestantism is thought to have been instrumental in introducing the concept of the private sphere in 17th century England.

Left image: Portrait of Henry VIII of England (circa 1537) / Right image: The Scourge — in vindication of the Church of England (1720)

The right to privacy crosses the Atlantic

When the British colonised America, they imported their legal system, with its nascent protection of private life. Krupke and Quester report that when the United States declared their independence, the Founding Fathers drew inspiration from the writings of William Blackstone, an influential English jurist who believed that the state should have limited access to one’s private sphere, in writing the constitution.

In Alschuler’s review of Blackstone’s scholarship, he notes that “Blackstone wrote that individuals possess three ‘absolute rights, … vested in them by the immutable laws of nature.’ These were the rights of personal security […], personal liberty, and private property.” (1996, 28) Reprehensible behaviours, such as intoxication and littering, should only be legislated when they take place in the public sphere. It was upon this notion, inherited from the British tradition, that the American right to privacy began to crystallise.

But while the right to privacy is alluded to in the fourth amendment of the United States Constitution, it is not explicitly outlined beyond the privacy of the home. It was instead progressively secured through Supreme Court rulings, especially through Justices Warren and Brandeis. DeVries writes that they were the first to “systematically describe a legal right to privacy” (2003, 286) in their seminal piece The Right to Privacy, published in 1890.

It is important to note that the right to privacy was not universal, and historically marginalised groups were often disadvantaged by it. For example, the right to privacy was often detrimental to women, as violence inside the home — child abuse, marital rape — was considered a private matter and off-limit for most of American legal history. Meanwhile, for decades, the right to privacy was insufficient in protecting gay people from intrusion into their private lives, until the gay rights movement was successful in claiming this protection for themselves.

Throughout history, the right to privacy has been applied unevenly, and in many cases, has worked to preserve existing power structures. Khiara M. Bridges writes that to this day, the right to privacy is unevenly respected in American society. Her book “The Poverty of Privacy Rights” argues that the privacy of poor women is especially disregarded, with monitoring and regulating of their private life being a condition of access to public services.

The right to privacy becomes a human right

The key step in cementing the right to privacy as a human right was its inclusion in the International Bill of Rights, written after the World War II as the founding document of the United Nations. While the degrees of inclusion of privacy within the International Bill of Rights vary widely depending on draft versions, there is little record of the thought process behind these changes. Oliver Diggelmann and Maria Nicole Cleis, who wrote the definitive account detailing how privacy became a human right, referred to this process as the “silent birth of an important human right.” (2014, 457)

Eleanor Roosevelt and United Nations Universal Declaration of Human Rights (1949)

The United Nations Declaration of Human Rights was ratified in 1948, and with it enshrined privacy as a human right. Article 12 states that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” However, Diggelmann & Cleis (2014, 441) note that this recognition at the global level was steps ahead of national regulations: “The ‘right to privacy’ was recognised as an international human right before it was included in any state constitution.” This includes the United States’ constitution, as mentioned above.

Through the drafting stages, the exact articulation of the right was contested. The extent of privacy was especially variable — while in an early version, it was private life as a whole that was protected, in a later version it was only certain aspects, such as “the privacy of the home and of correspondence and respect for reputation,” to being completely eliminated. (Diggelmann & Cleis 2014, 445–446).

While there are no explicit notes that accompany the review process, Diggelman & Cleis speculate that these changes might have been purely editorial. Since many of the writers worked in different languages, translations and retranslations throughout the process might have affected the wording. It is interesting to think that at some points during the writing process, the extent of the guarantee of privacy as a human right hung in the balance of a translation process.

The right to privacy and the emergence of technology

Despite this right being codified several decades ago, laws and rules that operationalise this right in our daily lives are often insufficient in today’s digital environment. In DeVries’ paper on protecting privacy in the digital age, he notes that the modern evolution of privacy regulation “is closely tied to the story of industrial-age technological development — from the telephone to flying machines.” (2003, 285). As technology evolved, so did privacy rights, attempting to limit the reach into our private lives enabled by these technological developments. However, in the past few decades, the pace of change became so fast that on-pace regulation became increasingly difficult.

Privacy policy did not evolve on pace with the Internet. One of the reasons that might account for that gap is the Internet’s original cyberpunk spirit. As Douglas Rushkoff noted in an article published by The Guardian, “Back in the 1990s, we cyberpunks saw the law as the enemy. […] What we didn’t realise was that pushing government off the net made it entirely safe for corporations, and a new form of digital capitalism was born.” What quickly became apparent is that the regulation vacuum where government regulation usually existed as a watchdog of consumer protection was being occupied by companies who regulated with self-interest as their priority.

Top image by Backbone Campaign (CC BY) / Bottom image by Chris Monk (CC BY)

The right to privacy has always been and continues to be unequally applied. The ever-increasing digitisation of our everyday lives has contributed to normalising abuses of privacy, but abuses in themselves are not new. Moreover, the concentration of power in the hands of a few powerful decision-makers, which we have largely allowed to self-regulate, and in result, regulate the web, results in a lack of transparency. While there is a lot of discussion about the importance of protecting our privacy in the digital age, there is a discrepancy between actions and attitudes. To protect our human right to privacy, it’s important to consciously work to close that gap, and hold those who decide how data about us is handled accountable.