October 18, 2002

Since Sept. 11, expectations about information privacy have changed and Americans seem willing to tolerate a greater degree of surveillance. This doesn't surprise California State University, Sacramento philosophy professor Randy Mayes.

"A person's rights aren't being fundamentally violated by being watched," he says. "Sometimes people misinterpret me as saying I think privacy isn't important. I just use 'privacy' differently." Mayes presented his findings at a recent conference on "Terror and Justice."

Mayes says the concept of the "right to privacy" began with an 1890 Harvard Law Review piece that defined it as the right to be left alone. Eventually, that expanded to the right not to be bothered in private affairs. And as technology progressed, creating the ability to observe without bothering, it began to be considered a violation of privacy if a person was just looking. That goes too far, says Mayes.

"There's a great deal of good in observation," he says. "If you think about it, in a liberal culture, knowledge is one of the things you value in and of itself. We should be careful about making exceptions to the idea that knowledge is an intrinsic good.

"The reason you don't like people knowing about you is because you're afraid of what they might think or do. It needs to be stipulated when it doesn't harm, you can't say your privacy has been violated."

The harm comes when information gathering violates a person's rationality, the privacy of one's own mind. Mayes defines privacy as the right to exercise practical rationality without interference. "Privacy is a state of mind. It's the freedom to keep people out of your consciousness," he says.

"If someone is spying or eavesdropping on you, and you aren't aware of it, that's very different. If I'm in a public space reading a book and someone is looking over my shoulder, if I don't know they're doing it, it doesn't really hurt. But when you become aware of it, you can find it hard to concentrate, your mind is derailed," he says. "Even a peeping Tom hasn't hurt anybody, except himself in a moral sense, until he's discovered. Then he has intruded into the personal space of the person he's watching. The right to privacy doesn't prevent people from looking. It requires them to be discrete."

Mayes also makes a distinction between privacy and the right to privacy. "The right to privacy doesn't mean you get to keep everything private," he says. "It's like liberty-people have a right to it, but they still can't do anything they want. They're not allowed to steal. They're not allowed to drive on the wrong side of the street. The government can violate liberties, but not the right to liberty."

In the same way, a person can violate another person's privacy, but not their right to privacy.

It doesn't violate privacy to collect information. The real concern is that the information will be used to harm other rights. He cites the example of a woman who was the subject of an unflattering videotape taken while she was in the stands at the U.S. Open tennis tournament. David Letterman showed the video on his television program several times, poking fun at her. She attempted to sue his production company for violating her privacy.

"We're subject to standards as a society," he says. "At a public event a normal person would expect to have their picture taken but she would not expect to be humiliated. The picture doesn't violate her privacy, the public humiliation does."

Before Sept. 11, people were concerned about being tracked while visiting a website or about grocery stores collecting marketing information through shopping cards. "That's not necessarily bad," he says. "It's not that I like these things, but I don't think they violate my right to privacy.

"You need to think about the consequences. If you vilify information gathering under right to privacy you make right to privacy too broad. What is important, what you really have a right to, is a space to think, to use practical rationality."
Media assistance is available by contacting the CSUS public affairs office at (916) 278-6156.

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