Philosophy of Law Spring 2018

Scanlon on Privacy


Scanlon agrees with Thomson that there is no single overarching right to privacy. But in this article he seeks to show that the various rights that make up what we loosely call the right to privacy have more in common than she believes they do. Specifically, he claims that they “have a common foundation in the special interests that we have in being able to be free from certain kinds of intrusions” (Scanlon 1975, 315).

The intrusions that Scanlon has in mind are intrusions into conventionally defined zones or territories. He gives two examples of zones of privacy:

  1. Places, such as the home.
  2. Circumstances in which certain questions are inappropriate, such as questions at a police station meant to elicit a confession out of someone who has requested a lawyer or otherwise invoked a right against self-incrimination. (That was my example; his involved someone asking about salaries at a dinner party. We later added examples from labor law, where there are questions that employers are not permitted to ask employees.)

The zones are conventionally defined and so they can vary from one society to another. But once a conventional definition exists, it establishes places where we can “carry out our activities without the necessity of being continually alert for possible observers, listeners, etc.” (Scanlon 1975, 317).

Scanlon vs. everyone else

Scanlon does not think that privacy rights are necessarily derived from other rights. For instance, he thinks that the zones of privacy are not necessarily determined by property rights. As Megan noted, he uses Thomson’s example of the picture and the x-ray machine to make his point. Thomson thinks that someone who uses an x-ray machine to look at a picture I own in my safe violates my right to privacy that is derived from my ownership of the picture (Thomson 1975, 298–300). Scanlon thinks my right to privacy would be violated even if the picture does not belong to me and I put it in a safe that I do not own. Suppose you loaned it to me and I put it in a safe in a hotel room (Scanlon 1975, 318).

It’s not obvious that this works. As Ryan pointed out, Thomson could say that you have a right to privacy in this case derived from your contract with the hotel. If so, the right to privacy still conforms with Thomson’s “simplifying hypothesis” rather than standing on its own.

If the argument does work in the case of property, Scanlon thinks he can do something similar with cases in which a person is observed. He thinks people have the right to privacy, that is, the right to be free from observation, when they are in their privacy zones and not when they are outside of those zones. This enables him to dispense with the right not to be looked at that Daisy and I didn’t care for (Scanlon 1975, 320).

Of course, he would have to overcome Helena’s objection that the zones he has in mind are so ill-defined as to be useless for legal and even moral purposes. But that’s probably a difficulty for Thomson too: how do we know when people have waived their right not to be looked at? It seems to me the answer would be pretty close to “whenever they leave their Scanlon privacy zone,” for good or ill.

What would Scanlon say about a picture that is on someone else’s phone? Is that in my zone or not? I suppose you could say that it is, but it seems to me that this would be out of keeping with his main idea. Scanlon’s main idea was that privacy protects places, giving those who are in them the ability to move around without having to worry about being observed. A concern about a picture on a phone is a concern about the publication of information. You could worry about that even if you had no worries about being observed (if, say, you sent the picture voluntarily). So, in my opinion, there is a difference between Scanlon, on the one hand, and Warren and Brandeis on the other.

Warren and Brandeis are concerned with the publication of information. But Scanlon thinks that your privacy can be violated even if someone does not gather any private information to publish. Suppose you look into my bathroom window hoping to see me get out of the shower but, as it happens, I’m not there. You don’t gather the information you sought (what I look like getting out of the shower) but you have violated my right to privacy, in Scanlon’s opinion.

Why do we care about privacy?

Scanlon says that privacy is valuable because it gives us spaces where we are free from being observed. I think there is some truth to that but I’m not sure it’s the whole truth.

Warren and Brandeis lived in a world where there were no zones free from observation. They had servants, so they were always being observed. What they wanted was to control the publication of information about themselves. That’s important too. We don’t always want to be free from observation. We want to share our lives and conversations with others. But we also want some of that to be private. What does that mean for things that are shared? It has to mean something like “don’t publish this.” So I think Warren and Brandeis are onto something too.

I also think that Megan is right to say that we’re moving towards a world that is more like Warren and Brandeis’s. There are no zones free from observation. Only instead of being observed by servants, we’re being observed by electronic gizmos. This is desirable: electronic servants are great! But it does mean that our concern about privacy has to be oriented towards controlling the disclosure of what they observe rather than preventing them from observing us in the first place.

One more thing. Camilla had a pretty dandy point towards the end. She noted that our privacy concern can’t just be about the sanctity of our zones. Why? Consider two cases:

  1. Someone goes snooping in my zone and sees nothing
  2. Someone goes snooping in my zone and sees something private

Both look like violations of my privacy but the second is a worse violation. So there has to be more to privacy than the sanctity of a zone. Clever!

Main points

Here are the points that you should know or have an opinion about from today’s class.

  1. Scanlon’s theory of conventional zones of privacy
  2. How Scanlon’s theory compares with Thomson’s
  3. Why Scanlon thinks privacy is valuable


Scanlon, Thomas. 1975. “Thomson on Privacy.” Philosophy & Public Affairs 4 (4): 315–22.

Thomson, Judith Jarvis. 1975. “The Right to Privacy.” Philosophy & Public Affairs 4 (4): 295–314.