The vast majority of philosophers and legal theorists who have thought about the issue agree that there is such a thing as a moral right to privacy. However, there is little or no theoretical consensus about the nature of this right. According to reductionists, the right to privacy amounts to nothing more than a cluster of property rights and rights over the person, and therefore plays no autonomous explanatory role in moral theory (Thomson 1975, Davis (...) 1959). Among non-reductionists, there are almost as many accounts of the right to privacy as there are synagogues in the old town of Jerusalem. For one group of non-reductionists (perhaps the majority), the right to privacy is properly understood as a right of control, a form of autonomy. Within this group, some think that the right to privacy is the right to control information about oneself (Westin 1967, Beardsley 1971, Gerstein 1978, Fried 1970, Moore 2003), while others insist that it is the right to control access to oneself (Parker 1974, Scanlon 1975, Rachels 1975, Reiman 1976, Van den Haag 1971). For another group of non-reductionists, the right to privacy is the right to cognitive and/or physical inaccessibility (Gavison 1980, Garrett 1974, Allen 1988). Though these are by far the most widely adopted non-reductionist accounts of the relevant right, they are by no means the only ones currently on offer. There are hybrid accounts according to which the right to privacy is a cluster of various rights of control (Inness 1992) or a cluster of various rights of control and restricted access (DeCew 1997). And according to an influential “information-based” account, the right to privacy 1 is defined as the right that others not possess undocumented personal information about the right-holder (Parent 1983a; 1983b). The purpose of this paper is to bring some order to this theoretical chaos. On my view, none of these accounts of the right to privacy is accurate.. (shrink)

The privacy concerns discussed in the 1990s in relation to the New Genetics failed to anticipate the relevant issues for individuals, families, geneticists and society. Consumers, for example, can now buy their personal genetic information and share it online. The challenges facing genetic privacy have evolved as new biotechnologies have developed, and personal privacy is increasingly challenged by the irrepressible flow of electronic data between the personal and public spheres and by surveillance for terrorism and security risks. (...) This book considers the right to know and the right not to know about your own and others’ genomes. It discusses new privacy concerns and developments in ethical thinking, with the greater emphasis on solidarity and equity. The multidisciplinary approach covers current topics such as biobanks and forensic databases, DIY testing, group rights and accountability, the food we eat and the role of the press and the new digital media. (shrink)

There are times when two essential human rights may appear to be in conflict, or need to be balanced against one another. This paper examines the right of a party, such as officials, a group of people or an individual, to ‘privacy and confidentiality’ when others may have a conflicting ‘right to know’ about them. Although similar conflicts have been studied by other researchers, there is still controversy over the rightful balance in situations driven by new (...) information and communication technologies. I conducted a survey on the attitude of college students to the privacy right versus the right to know using an actual case at the university. First, I asked the students if they believed protecting the privacy of a married teacher who had fathered a child with a student was more important than the right of the school to know. Second, I asked if they believed a child born to a single mother in such a relationship has the right to know about his father, or the single mother has the right to keep that information confidential. Third, I asked the students if they believed in general that the ‘right to privacy and confidentiality’ was more important or the ‘right to know’. This paper reports on the results of this survey on 222 students at an international university in Japan. (shrink)

Foreword by Robert H. Bork -- Culture wars -- A distorted understanding of rights -- The right to privacy -- Griswold and contraception -- Roe and abortion -- Assisted suicide and homosexuality -- Political connections and natural consequences.

The goal of the book is to present the latest research on the new challenges of data technologies. It will offer an overview of the social, ethical and legal problems posed by group profiling, big data and predictive analysis and of the different approaches and methods that can be used to address them. In doing so, it will help the reader to gain a better grasp of the ethical and legal conundrums posed by group profiling. The volume first (...) maps the current and emerging uses of new data technologies and clarifies the promises and dangers of group profiling in real life situations. It then balances this with an analysis of how far the current legal paradigm grants group rights to privacy and data protection, and discusses possible routes to addressing these problems. Finally, an afterword gathers the conclusions reached by the different authors and discuss future perspectives on regulating new data technologies. (shrink)

The goal of the book is to present the latest research on the new challenges of data technologies. It will offer an overview of the social, ethical and legal problems posed by group profiling, big data and predictive analysis and of the different approaches and methods that can be used to address them. In doing so, it will help the reader to gain a better grasp of the ethical and legal conundrums posed by group profiling. The volume first (...) maps the current and emerging uses of new data technologies and clarifies the promises and dangers of group profiling in real life situations. It then balances this with an analysis of how far the current legal paradigm grants group rights to privacy and data protection, and discusses possible routes to addressing these problems. Finally, an afterword gathers the conclusions reached by the different authors and discuss future perspectives on regulating new data technologies. (shrink)

In this chapter I identify three problems affecting the plausibility of group privacy and argue in favour of their resolution. The first problem concerns the nature of the groups in question. I shall argue that groups are neither discovered nor invented, but designed by the level of abstraction (LoA) at which a specific analysis of a social system is developed. Their design is therefore justified insofar as the purpose, guiding the choice of the LoA, is justified. This should (...) remove the objection that groups cannot have a right to privacy because groups are mere artefacts (there are no groups, only individuals) or that, even if there are groups, it is too difficult to deal with them. The second problem concerns the possibility of attributing rights to groups. I shall argue that the same logic of attribution of a right to individuals may be used to attribute a right to a group, provided one modifies the LoA and now treats the whole group itself as an individual. This should remove the objection that, even if groups exist and are manageable, they cannot be treated as holders of rights. The third problem concerns the possibility of attributing a right to privacy to groups. I shall argue that sometimes it is the group and only the group, not its members, that is correctly identified as the correct holder of a right to privacy. This should remove the objection that privacy, as a group right, is a right held not by a group as a group but rather by the group’s members severally. The solutions of the three problems supports the thesis that an interpretation of privacy in terms of a protection of the information that constitutes an individual—both in terms of a single person and in terms of a group—is better suited than other interpretations to make sense of group privacy. (shrink)

Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty set out that in carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the officials authorized by the EU Commission were empowered inter alia to enter any premises, land and means of transport of undertakings. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 (...) and 82 of the Treaty has expanded Commission’s powers stating that Commission can by decision order an inspection to be conducted in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned. Such an expansion of the investigative powers of the Commission raises a question of the balance between effectiveness of the EU competition law and a person’s right to privacy, which is guaranteed to everyone by the Article 8 of the European Convention on Human Rights. Nevertheless this right is not absolute and the conditions for the possible limitations of the exercise of it are enshrined in paragraph 2 of the same article. For this reason the aim of this article is to find out whether Commission’s power to carry out searches in private homes meet the requirements set in Article 8(2) of the Convention, i.e., whether the Commission’s power to conduct such searches could be justified under the ECHR Article 8(2). In this study, the authors analyse the Commission’s extended investigative powers, clarify what is covered by the concept of “privacy”, evaluate the requirements set in Article 8(2) of the Convention, analyse conditions of exercising Commission’s extended investigative power and thus qualify if the latter satisfies the requirements set in Article 8(2) of the ECHR. (shrink)

Andrei Marmor has recently offered a narrow interpretation of the right to privacy as a right to having a reasonable amount of control over one's self‐presentation. He claims that the interest people have in preventing others from abusing their personal information to do harm is not directly protected by the right to privacy. This article rejects that claim and defends a view according to which concerns about abuse play a central role in fleshing out the (...) appropriate scope of a general right to privacy. (shrink)

Mature information societies are characterised by mass production of data that provide insight into human behaviour. Analytics has arisen as a practice to make sense of the data trails generated through interactions with networked devices, platforms and organisations. Persistent knowledge describing the behaviours and characteristics of people can be constructed over time, linking individuals into groups or classes of interest to the platform. Analytics allows for a new type of algorithmically assembled group to be formed that does not necessarily (...) align with classes or attributes already protected by privacy and anti-discrimination law or addressed in fairness- and discrimination-aware analytics. Individuals are linked according to offline identifiers and shared behavioural identity tokens, allowing for predictions and decisions to be taken at a group rather than individual level. This article examines the ethical significance of such ad hoc groups in analytics and argues that the privacy interests of algorithmically assembled groups in inviolate personality must be recognised alongside individual privacy rights. Algorithmically grouped individuals have a collective interest in the creation of information about the group, and actions taken on its behalf. Group privacy is proposed as a third interest to balance alongside individual privacy and social, commercial and epistemic benefits when assessing the ethical acceptability of analytics platforms. (shrink)

Western ethics and law have been slow to come to conclusions about the right to choose the time and manner of one's death. However, policies, practices, and legal precedents have evolved quickly in the last quarter of the twentieth century, from the forgoing of respirators to the use of Do Not Resuscitate (DNR) orders, to the forgoing of all medical technologies (including hydration and nutrition), and now, in one U.S. state, to legalized physician-assisted suicide. The sweep of history—from the (...) Quinlan case in New Jersey to legislation in Oregon that allows physician-assisted suicide—has been as rapid as it has been revolutionary. (shrink)

Following the trend of sharing, and associating being on-line with being 'on-life', many people are now demanding the ownership and control of their data across all processing phases, including the erasure of their presence on the web. In Europe, recent proposals for regulation include an explicit 'Right to be Forgotten'; this right stated in the European Commission Proposal for Regulation COM 2011/12 does not emerge without controversy. It is being criticised on several grounds, including clashing with other rights, (...) such as freedom of expression, as well as setting the terrain for censorship. Besides the purely legal aspects of the proposed provisions, the chapters of this volume discuss how those legal provisions correspond in practice to worldviews and how individual and collective memory must be governed. They look into the deeper consequences of such provisions to construction of identity, culture and community formation, and how such a right affects how, what and why individuals, groups and societies remember and forget. (shrink)

Recently, John Doe, an undocumented immigrant who was detained by United States Immigration and Customs Enforcement, was admitted to a hospital off-site from a detention facility. Custodial officers accompanied Mr. Doe into the exam room and refused to leave as physicians examined him. In this analysis, we examine the ethical dilemmas this case brings to light concerning the treatment of patients in immigration detention and their rights to privacy. We analyze what US law and immigration detention standards allow regarding (...) immigration enforcement or custodial officers’ presence in medical exams and documentation of detainee health information. We describe the ethical implications of the presence of officers in medical exam rooms, including its effects on the quality of the patient-provider relationship, patient privacy and confidentiality, and provider's ability to provide ethical care. We conclude that the presence of immigration enforcement or custodial officers during medical examination of detainees is a breach of the right to privacy of detainees who are not an obvious threat to the public. We urge ICE and the US Department of Homeland Security to clarify standards for and tighten enforcement around when officers are legally allowed to be stationed in medical exam rooms and document detainees’ information. (shrink)

The Right to Privacy and the Right to Use the Bathroom Consistent with One’s Gender Identity.

In their celebrated essay “The Right to Privacy,” legal scholars Samuel Warren and Louis Brandeis identified as the generic privacy value “the right to be let alone.” This same phrase occurs in Justice Brandeis's dissent inOlmstead v. U.S.(1927). This characterization of privacy has been found objectionable by philosophers acting as conceptual police. For example, moral philosopher William Parent asserts that one can wrongfully fail to let another person alone in all sorts of ways—such as assault—that (...) intuitively do not qualify as violations of privacy and thus cannot be violations of the right to privacy. (shrink)

Where did the right to privacy come from and what does it mean? Grappling with the critical issues involving women and gays that relate to the current Supreme Court appointment, Vincent J. Samar develops a definition of legal privacy, discusses the reasons why and the degree to which privacy should be protected, and shows the relationship between privacy and personal autonomy. He answers former Supreme Court nominee Robert Bork's questions about scope, content, and legal justification (...) for a general right to privacy and pays particular attention to issues involving gays and lesbians. (shrink)

Luciano Floridi was not the first to discuss the idea of group privacy, but he was perhaps the first to discuss it in relation to the insights derived from big data analytics. He has argued that it is important to investigate the possibility that groups have rights to privacy that are not reducible to the privacy of individuals forming such groups. In this paper, we introduce a distinction between two concepts of group privacy. The (...) first, the “what happens in Vegas stays in Vegas” privacy (in the following: WHVSV privacy), deals with confidential information shared with the member of a group and inaccessible to (all or a specific group of) outsiders. The second, to which we shall refer as inferential privacy, deals with the inferences that can be made about a group of people defined by a feature, or combination thereof, shared by all individuals in the group. We show why we unreservedly agree with Floridi that groups can have a form of privacy that amounts to more than the mere fact of being sets of individuals each of whom has individual privacy; moreover, like Floridi, we find it plausible that at least some groups (those satisfying our definition of type-a groups) may have a right to a species of group privacy (that is, WHVSV privacy) as groups (and not just as individuals who belong to those groups). However, by turning our attention to the context of big data analytics, we show that the relevant, new notion of group privacy is one of inferential privacy. We argue that an absolute right (either of individuals or groups) to inferential privacy is implausible. We also show that many groups generated algorithmically (those satisfying our definition of type-b groups) cannot be right holders as groups (unless they become type-a groups). (shrink)

When tennis fan Jane Bronstein attended the 1995 U.S. Open she probably knew there was a remote chance her image would end up on television screens around the world. But she surely did not know she was at risk of becoming the object of worldwide attention on the David Letterman Show. As it happened, Letterman spotted an unflattering clip from the U.S. Open showing a heavyset Bronstein with peach juice dripping down her chin. Not only did he show the footage (...) six times that fall, but he ridiculed her on his “Top 10 List,” calling her a “seductive temptress,” even paying to put the clip on the Sony Jumbotron electronic billboard at Time Square. Ms. Bronstein sued David Letterman’s production company under New York civil rights law for violating her privacy. (shrink)

The question that I address in this paper is whether there is a right to privacy. It is not the question whether in the United States there is a legal right to privacy or, more particularly, a constitutional right to privacy. There are any number of ordinary legal rights and specific constitutional rights that might be so described, and the U.S. Supreme Court has referred also to a generic “right to privacy” that (...) is implicit in the U.S. Constitution. Nor is the question that I address whether persons have a moral claim to privacy that others ought to respect. I assume that in many circumstances, respecting a person's claim to privacy is productive of the good and, if so, that the claim ought to be respected. Rather, my question is whether persons have a right to privacy not dependent on positive law, such that it ought ordinarily to be respected without regard to the consequences, good or bad, simply because it is right. (shrink)

Loi recently proposed a libertarian right to direct to consumer genetic testing — independent of autonomy or utility—reflecting Cohen’s work on self-ownership and Hohfeld’s model of jural relations. Cohen’s model of libertarianism dealt principally with self-ownership of the physical body. Although Loi adequately accounts for the physical properties of DNA, DNA is also an informational substrate, highly conserved within families. Information about the genome of relatives of the person undergoing testing may be extrapolated without requiring direct engagement with their (...) personal physical copy of the genome, triggering rights and interests of relatives that may differ from the rights and interests of others, that is, individual consumers, testing providers and regulators. Loi argued that regulatory interference with exercise of the right required justification, whereas prima facie exercise of the right did not. Justification of regulatory interference could include ‘conflict with other people’s rights’, ‘aggressive’ use of the genome and ‘harming others’. Harms potentially experienced by relatives as a result of the individual’s exercise of a right to test include breach of genetic privacy, violation of their right to determine when, and if, they undertake genetic testing and discrimination. Such harms may justify regulatory intervention, in the event they are recognised; motives driving ‘aggressive’ use of the genome may also be relevant. Each of the above criteria requires clarification, as potential redundancies and tensions exist between them, with different implications affecting different groups of rights holders. (shrink)

The distinction between the public and private spheres of human life is a critical facet of contemporary moral, political, and legal thought. Much recent scholarship has invoked privacy as an important component of individual autonomy and as something essential to the ability of individuals to lead complete and fulfilling lives. However, the protection of one's privacy can interfere with the ability of others to pursue their own projects and with the capacity of the state to achieve collective goals. (...) Developing an acceptable account of the right to privacy - one that provides satisfactory answers to both theoretical and practical questions - has proven to be a vexing problem. The thirteen essays in this volume examine various aspects of both the right to privacy and the roles that this right plays in moral philosophy, legal theory, and public policy. (shrink)

Conducting research on adolescents raises a number of ethical issues not often confronted in research on younger children. In part, these differences are due to the fact that although assent is usually not an issue, given cognitive and social competencies, the life situations and behavior of youth make it more difficult to balance rights and privacy of the adolescents. In this article, the three ethical principles of beneficence, justice, and respect for persons are discussed in terms of their application (...) to the study of adolescents. Then, seven vignettes are presented to illustrate how these principles apply to real-life situations. How to balance the rights of adolescents and their parents is discussed, using adolescent girls and their parents for illustrative purposes. (shrink)

"Reductionism," in this context, is the view that the right to privacy necessarily depends on and derives from more fundamental rights, primarily liberty and property, and that this reduction has important normative implications for the law. Judges and scholars have articulated versions of reductionism for about a century, and yet, since the time of the seminal Pavesich opinion, none of these views has influenced the law. ;In this thesis, I offer a new version of reductionism. I start by (...) examining the original debate concerning the existence of a right to privacy, triggered by the seminal law review article by Warren and Brandeis. I argue that this debate was not resolved in favor of such a right until Justice Cobb, in Pavesich, offered a justification for it based on fundamental political principles. I next examine the debate between the contemporary reductionists Prosser, Thomson, and Posner, and their critics. I demonstrate that reductionists have not learned the lesson implicit in the original debate: if one hopes to gain influence in the area of privacy law, he must justify his theory on the basis of fundamental political principles. Finally, I offer a more coherent and defensible reductionist view, one based on Ayn Rand's theory of individual rights. I use my reductionist theory to explain why certain undesirable outcomes are inherent in privacy law as it currently exists, recommend a return to a jurisprudence of property and liberty, and indicate a method of implementing this recommendation. (shrink)

It is widely held that there is a legal right to privacy that plays such a central role in a number of important US Supreme Court decisions. There is however a great deal of dispute about whether there is a moral right to privacy and if there is, what grounds the right. Before this can be determined, we must be clear about the nature of privacy, something that is not clearly understood and that, as (...) we shall see, is often confused with the right to privacy. I shall begin with a critical discussion of various views about the nature of privacy. I shall then present my own account, and show how it meets the objections that have been raised against other views. Lastly, I shall close with a discussion about whether privacy is a moral right. (shrink)

The article undertakes to develop a theory of privacy considered as a fundamental moral right. The authors remind that the conception of the right to privacy is silent on the prospect of protecting informational privacy on consequentialist grounds. However, laws that prevent efficient marketing practices, speedy medical attention, equitable distribution of social resources, and criminal activity could all be justified by appeal to informational privacy as a fundamental right. Finally, the authors show that (...) in the specter of terrorism, privacy can be conceived as a fundamental moral right, one that is completely consistent with the willingness to submit for surveillance of private lives. (shrink)

This paper argues that debates regarding legal protections to preserve the privacy of data subjects, such as those involving the European Union’s right to be forgotten, have tended to overlook group-level forms of epistemic asymmetry and their impact on members of historically oppressed groups. In response, I develop what I consider an abolitionist approach to issues of digital justice. I begin by exploring international debates regarding digital privacy and the right to be forgotten. Then, I (...) turn to the long history of informational asymmetries impacting racialized populations in the United States. Such asymmetries, I argue, comprise epistemic injustices that are also implicated within the patterns of racialized incarceration in the United States. The final section brings together questions regarding the impact of such epistemic injustices on incarcerated peoples and focuses specifically on the public availability of criminal histories in online search databases as a fundamental issue within conversations regarding digital justice. I thus conclude by building from the work of contemporary abolitionist writers to argue that the underlying concerns of an individualized right to be forgotten should be transformed into a collective effort to undermine societal carceral imaginaries. (shrink)

In this paper, I defend what I call the ‘Inference Principle’. This principle holds that if an agent obtains some information legitimately, then the agent can make any inference she wants based on the information, without violating anyone’s right to privacy. This principle is interesting for at least three reasons. First, it constitutes a novel answer to the timely question of whether the widespread use of ‘data analytics’ to infer personal information about individuals is morally permissible. Second, it (...) contradicts what seems to be a common view of inferences’ ability to violate privacy rights. Third, it offers an account of the theoretically underdeveloped issue of what duties are engendered by the moral right to privacy with regard to inferred information. (shrink)

The right to privacy is one of the rights most widely demanded today. Privacy has not always so been demanded. The reasons for the present concern for privacy are complex and obscure. They obviously relate both to the possibilities for very considerable enjoyment of privacy by the bulk of people living in affluent societies brought about by twentieth-century affluence, and to the development of very efficient methods of thoroughly and systematically invading this newly found (...) class='Hi'>privacy. However, interesting and important as it is as a socio-philosophical inquiry, the concern of this paper is not with why privacy has come to be so highly prized, but rather with whether it is rightly prized, and if so, when and why. This means that my concern will be with what privacy is, what is its domain, whether there is a right to privacy, and, if so, whether it is an ultimate, basic, albeit, a prima facie right, or simply a conditional right. (shrink)

Explores a tension between clients' rights to informational privacy and lawyers' rights to flourishing privates lives.

The question that I address in this paper is whether there is a right to privacy. It is not the question whether in the United States there is a legal right to privacy or, more particularly, a constitutional right to privacy. There are any number of ordinary legal rights and specific constitutional rights that might be so described, and the U.S. Supreme Court has referred also to a generic “right to privacy” that (...) is implicit in the U.S. Constitution. Nor is the question that I address whether persons have a moral claim to privacy that others ought to respect. I assume that in many circumstances, respecting a person's claim to privacy is productive of the good and, if so, that the claim ought to be respected. Rather, my question is whether persons have a right to privacy not dependent on positive law, such that it ought ordinarily to be respected without regard to the consequences, good or bad, simply because it is right. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people’s freedom and equality provided by rights of political choice, association and expression, and can help to (...) make sure that these are, genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

For the last several decades, ensuring human rights and national security have remained an important goal and a condition for existence of every state. The interests of national security often presuppose the need to narrow some natural rights, such as, for example, the right to privacy, the right to secrecy of communication, etc. Traditional concept of security is related to ensuring national security. According to the traditional concept of security, the state is considered the main object of (...) security; therefore, the states mainly focus on external threats. It is stated that the most important thing is to protect the state from external aggression, ensure protection of state borders and institutions. Protection of human rights is ensured simultaneously. It is, however, observed that a secure state does not necessarily mean that the citizens of the state are secure. Security of a person is under threat due to limitations imposed on human rights while seeking to ensure national security. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of solitude, intimacy and confidentiality and shows that, so described, people have legitimate interests in privacy. These interests are both personal and political, and provide the grounds for two different justifications of privacy rights. Though both are based on democratic concerns for the freedom and equality of individuals, (...) these two justifications for privacy can be distinguished because the one is principally concerned with protecting the personal freedom and equality of individuals, while the other is principally concerned with their political equivalents. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, interpreting the content and justification of privacy rights in light of the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

There is currently intense debate about the significance of user consent to data practices. Consent is often taken to legitimate virtually any data practice, no matter how invasive. Many scholars argue, however, that user consent is typically so defective as to be ‘meaningless’ and that user privacy should thus be protected by substantive legislation that does not rely (or does not rely heavily) on consent. I argue that both views rest on serious mistakes about the validity conditions for consent. (...) User consent is sufficiently impoverished that it does not guarantee legitimacy but is not so impoverished as to be ‘meaningless’; it can legitimate data practices that are independently reasonable but not those that are exploitative. Since many valuable data practices must be consented to if they are to be legitimate (or so I argue), our privacy legislation should continue emphasizing the importance of user consent, even if auxiliary protections are also desirable. (shrink)

Recent discussions among lawyers, philosophers, policy researchers and athletes have focused on the potential threat to privacy posed by the World Anti-Doping Agency’s (WADA) whereabouts requirements. These requirements demand, among other things, that all elite athletes file their whereabouts information for the subsequent quarter on a quarterly basis and comprise data for one hour of each day when the athlete will be available and accessible for no advance notice testing at a specified location of their choosing. Failure to file (...) one’s whereabouts, or the non-availability for testing at said location on three occasions within any 18-month period constitutes an anti-doping rule violation that is equivalent to testing positive to a banned substance, and may lead to a suspension of the athlete for a time period of between one and two years. We critically explore the extent to which WADA’s whereabouts requirements are in tension with existing legislation on privacy, with respect to UK athletes, who are simultaneously protected by UK domestic and EU law. Both UK domestic and EU law are subject to the European Convention on Human Rights (ECHR) Article 8, which establishes a right to “respect for private and family life, home and correspondence”. We critically discuss the centrality of the whereabouts requirements in relation to WADA’s aims, and the adoption and implementation of its whereabouts rules. We conclude that as WADA’s whereabouts requirements appear to be in breach of an elite athlete’s rights under European workers’ rights, health & safety and data protection law they are also, therefore, in conflict with Article 8 of the ECHR and the UK Human Rights Act 1998. We call for specific amendments that cater for the exceptional case of elite sports labour if the WADA requirements are to be considered legitimate. (shrink)