Introduction
Part I: The Right to Privacy
Part II: The Nature of Consent
Consent comes in two main varieties: agreement between/among people; and consent of the People. The former describes voluntary associations and ad hoc arrangements made by individuals or private groups; the latter describes the social contract whereby governments obtain their legitimacy. Individual Consent deals with the individual’s right to form relationships, share information, etc. with other entities as mutually agreed. The Consent of the Governed deals with the collective right of the People to form a system of government and the type of behavior a government may compel of individuals under its jurisdiction.
Both types of consent have dramatic implications for the right to privacy and its free exercise.
Individual Consent
Individual consent fits broadly within the contours of contracts and cultural mores.
Contracts
The contractual form of individual consent relies upon the right of legal entities – adults, corporations, businesses, associations, etc. – to interact with each other, or to refrain from interacting with each other in pursuit of their legal individual aims.
When two private legal entities agree to interact with each other, they are said to consent. Contracts are used where an overt positive act is required in order to communicate consent. Acts such as buying something, getting married, hiring someone, incorporation of a business, forming a club, etc. are contractual.
All contracts impose constraints upon both consenting parties. The breach of these contracts is governed by laws.
Cultural mores
In the absence of an explicit written or oral contract or other sign of consent, cultural mores come to the fore. These customs deal in no small degree with a society’s notions of privacy and usually presume minimal consent. These cultural understandings can be seen as mini-agreements between-and-among individuals sharing a public space.
For individuals, exiting the privacy of one’s home and entering the public signifies an individual’s consent, to do certain things (cover your mouth when you cough, be polite) and to refrain from doing certain things (don’t stare at people, don’t point at people and laugh, etc.).
These cultural agreements also impose multilateral constraints upon the consenting parties. The breach of these agreements is most often governed by giving the supposed offender a nasty look. If nasty looks aren’t doing the trick, someone is sure to suggest a law.
For other legal entities such as corporations, clubs and associations, simple existence places them in the public. They are also obligated to do and refrain from doing certain things. Often the obligations they take on are spelled out in a charter or a mission statement, and an organization that fails to live up to its stated and socially imposed standards loses good will.
Consent of the Governed
Consent of the Governed is the other type of consent. I don’t want to wade too deeply into political theory, but for the sake of this discussion let’s assume that it is possible for the People collectively to consent to things, and that the formation of a democratic government means that they do, in fact, consent to be governed. Arguing in favor of these assumptions, democracies have the additional feature of ratifying that supposed consent periodically through voting processes. Laws come out the other end. But it’s important to distinguish the laws that regulate relations between equal members of society (i.e. contract law) from laws that define the much less equal relationship between individuals and the government.
Consent of the Governed bears significantly upon privacy, because governments require citizens to share information with the government or to make information public that they might otherwise choose to keep to themselves.
The abridgment of the right to privacy in the Individual Consent case is ad hoc, fully within the scope of a unique individual’s assessment of their individual aims and within the individual’s power to regulate within the scope of contract law (or nasty looks). But the sacrifices to privacy the People make under the Consent of the Governed case do not fall on some generic entity called the People, redounding to the People’s supposed benefit, they fall upon individuals to the supposed benefit of the People. The People don’t fill in the census, file their income taxes and become licensed to do things; individuals do.
Government also brings a coercive power to the calculation that is absent in the Individual Consent case. Though they both have a direct bearing on an individual’s right to privacy, the nature of consent in the individual case and the Consent of the Governed case is qualitatively different.
Part III: Transparency
Part IV: A Framework for the Discussion of Privacy Issues
Part V: Filling in the framework; Absolute advocacy dos and don'ts
Part VI: Filling in the framework, subjectivity and interpretation
