Abstract

The right to privacy is presented as a right to a state of non-intrusion in the control an individual has over personal information, and the means of access to such information. This account of the right helps to show that the Warren and Brandeis account of the right to privacy in torts is best seen as presenting the right as simply one of the cluster composing the right to be let alone, not as simply identifying the two. The state of non-intrusion account is shown to be justified by reference to the respect for, and recognition of, the nature of persons as separate moral entities. That the right is justified in this manner indicates the attempts in the legal literature to tie the legal right to privacy to already established concepts in the law, both tort and constitutional, is wrong-headed. Rather, many of the already established legal concepts can be shown to arise from concerns for privacy. Since the right to privacy as defined above draws its justification from the feature of persons as separate moral entities, accounts of the right as a derivative right, where derivative is taken to mean either the rights in the cluster are not sui generis or that the right is only justified in reference to other goods or values, are seen to be in error. This justification also plays an important role in indicating accounts of this right as a property right suffer from a deficiency so severe such accounts must be rejected. A property right account simply cannot capture adequately the import of such a justification. Such an account also clearly precludes the possibility the right to privacy is an autonomy right. There is simply no reason to think invasions of privacy significantly restrict one's range of significant choice. These considerations lead to the proposed account of the right as specified above, an account which is a natural extension of exclusive access and selective disclosure accounts.