Crises disorient, but they also have a clarifying effect. They focus attention by forcing decisions. In Italy, for example, bioethics turned from a relatively abstract intellectual endeavor into a practical necessity when COVID-19 patients began to flood the hospitals of Lombardy in early March. Since there simply weren’t enough ventilators to keep everyone alive, doctors had to decide who would receive life-saving equipment. The principle they settled on was utilitarian: those with the highest statistical chance of survival would receive the best care. It was a choice born out of the demands of an acute emergency situation.
It’s a similar situation with the growing debate over public health and privacy. In theory, the inviolability of personal space and data is deeply anchored in our legal architecture and cultural norms. Yet such abstractions tend to crumble under the pressure of a crisis, like the one in which we currently find ourselves. The logic of fundamental rights has swiftly been replaced by the logic of incommensurability, according to which an insistence on privacy protections will necessarily hinder attempts to contain the spread of COVID-19 through contact tracing, quarantine, or movement tracking. The apparent choice is now between a rejection of medical advice and a renunciation of privacy. And if those are indeed the only options, privacy is unlikely to prevail. No amount of ventilation will save it from certain death.
But is this true? Does the fierce urgency of now require the subordination of privacy to public health, or worse, imply its sudden demise? For more than a century, newspapers and magazine have published obituaries to privacy under headlines like “No Privacy in City Life” (The Los Angeles Times, 1902), “Is Privacy Dead?” (Newsweek, 1970), “The Death of Privacy” (Time Magazine, 1997) and “The End of Privacy” (Science, 2015). Yet it has stubbornly refused to die. Decades of infectious disease campaigns did not kill it off, and neither did the subsequent rise of computational databases and digital surveillance. In fact, Supreme Court decisions like Katz v. United States (which held that warrantless wiretapping constituted a violation of privacy under the Fourth Amendment of the US Constitution) or the European General Data Protection Regulation (GDPR) arose precisely during periods when new technological capabilities, new techniques of governance, and new business models seemed to drive a stake straight through the heart of established conceptions of privacy. Indeed, premature proclamations of death are one of the great fallacies of contemporary privacy discourse. They misconstrue reality and, perhaps more importantly, impede attempts to shape the future trajectory of the right to privacy.
Privacy – a vague concept
There are three related reasons why it is empirically misleading and politically misguided to treat the collision of privacy and public health as a zero-sum game. First, privacy is an excessively vague concept. It appears in discussions about wiretapping, contraception, sexual intercourse, domestic life, communication technologies, gender roles, digital markets, financial transactions, and a great number of other contexts. In fact, privacy is so vague that it has often functioned as a negative space: it is heavily defined by what it is not. For example, the governance of mail privacy has historically been built on a series of exceptions that waived the sanctity of the seal for undeliverable letters, for shipments that needed to clear customs inspections, for some forms of merchandise, and for foreign mail during wartime. Likewise, the vagueness of privacy means that it frequently becomes entangled with other substantive ideologies. For much of the nineteenth century, mentions of privacy functioned as a thinly veiled reference to gender norms that relegated women to the domestic sphere but treated the “public” life of politics and business as the domain of men. And during the 1960s, privacy jurisprudence protected access to contraception for married couples by merging the defense of an inviolate private sphere with heteronormative ideals about the nuclear family.