What is privacy?

Binoculars Privacy

Startups creating a product or a service ask, “Do we need a privacy policy?” The answer relies on understanding the answer to a different question, “What is privacy?”

Do you know it when you see it?

Everyone has his or her definition of privacy. We make different decisions about what information we reveal, who we share it with, and how we share it. We also hide some things from everyone. This makes defining privacy difficult. We each have a slightly different definition. In Jacobellis v. Ohio, Justice Stewart struggled to define pornography. He concluded, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…” Like Justice Stewart, we all struggle to define privacy—or even the lack of privacy—but we all feel we know it when we see it.

A right to be left alone?

It’s easy to think privacy is at greater risk today because of rapidly changing technology. But rapidly changing technology and business methods have always driven privacy concerns. Even in 1890, when Louis Brandeis and Samuel Warren wrote the seminal “Right to Privacy” article in the Harvard Law Review, technology was driving their thinking. They noted, “…photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life…”

The goal of their article was to consider whether existing laws afforded a privacy protection for individuals. A right to be left alone. And how alone such a protection would allow us to be. They wrote that if there was a right to be left alone, there were also conditions. For example, the right to privacy does not prohibit publication of a matter of public or general interest, and the right to privacy stops when the individual publishes the facts or consents to publication.

An expectation of privacy?

People often use the phrase “expectation of privacy” in defining privacy. The expectation concept comes into play when deciding if the Fourth Amendment of the U.S. Constitution protects us from unreasonable searches and seizures. The amendment’s protections only extend to acts by the government, and only when a person, typically a defendant, can show he or she had a “reasonable expectation of privacy in the place to be searched or the thing to be seized.”

Does privacy still matter?

Some people may argue the definition really doesn’t matter because there is no longer any privacy. For example, in 1999, Scott McNealy, the CEO of Sun Microsystems, said, “You have zero privacy anyway…Get over it.” Other people, notably Google CEO Eric Schmidt, dismiss privacy concerns saying, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” And people seem more than willing to trade information about themselves in exchange for the ability to use a product or service, such as an app.

Two useful definitions?

Perhaps the best way to define privacy is to think about two different kinds of privacy—autonomy and informational. Here, Black’s Law Dictionary may help. It defines two types of privacy as follows:

  1. Autonomy privacy is “an individual’s right to control his or her personal activities or intimate personal decisions without outside interference.”
  2. Informational privacy is “a private person’s right to choose to determine whether, how, and to what extent information about oneself is communicated to others.”1

When a startup or small business understands how its customers define privacy, it may be easier to build a privacy policy that works for the company and its customers.

1 Black’s Law Dictionary, 1233 (8th ed. 2004).

Disclaimer: This brief touches on issues of interest to startups, because the brief is about evolving technology, emerging business models, or the law. However, the content in this brief is offered as information only. Nothing in the content of this brief is offered as legal advice. No one should act or refrain from acting, based on the content of this brief without seeking specific legal advice about their particular situation and circumstances. 


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