Is it possible to define ‘privacies’ within the law? Reflections on the ‘securitisation’ debate and the interception of communications

Abstract

This article originates from the author's ongoing research into whether common factors that define ‘privacy’ may be identified and theorised. The research focuses on privacy in relation to the interception of communications. The rapid development over the past three decades of new technologies of surveillance raises a number of important questions about what is perceived as the shifting relationship between the citizen and the state. With the Information Commissioner and others to claim that modern British society is a ‘surveillance society’, and that the privacy of citizens is being sacrificed on the altar of ‘security’. However, it is not the case that a commonly accepted definition of privacy exists. The paper outlines the methodology to identify the contingents that are present in debates over privacy. First, it considers the difficulties in trying to define privacy since Warren and Brandeis', ‘The Right to Privacy’, essay famous, and argues that the term ‘privacy’ does not convey a purposeful meaning in terms of the interception of communications. Second, it identifies factors which allow privacy to be understood as a form of personal power. These factors point not only to whether information itself should be private to an individual but to the contexts in which the information is obtained. It is not information per se that is the key factor but its context. Finally, it is argued that it may be possible to isolate the factors that will produce a definition of privacy in relation to the interception of communications by looking at each set of circumstances and asking certain key questions.

Keywords:

• privacy
• surveillance
• interception of communications

Notes

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The term ‘unethically’ is used to surmise the situation of the state monitoring the communication of a citizens affairs' with disregard to a pressing need. Although not quite in line with George Orwell's 1984, this situation is where communications may be monitored by state agencies regardless of whether suspicion of an offence exists.

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See for examples: Entick v. Carrington, Howell's State Trials 19 (1765): 1030; Cooper v. Booth (1785) 2 ESP 135; Price v. Messenger (1800) 2 Bos. & P. 158. For dishonest appropriation, see Prince Albert v. Strange (1848) 2 De G. & Sm. 652.

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In line with the views expressed by Warren and Brandeis, ‘The Right to Privacy’.

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This is taken on assumptions of both respondents to questions regarding perceptions of surveillance and of the 50% public acceptance of an identity card scheme undertaken by ICM Research: ID Cards Survey Fieldwork: 8–9 November 2006. Available at http://www.icmresearch.co.uk/pdfs/2006_july_no2id_id_card_survey.pdf (accessed February 11, 2007).

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