San Diego Law Review
In this Article, I consider the scope of this right to informational privacy relative to our interests in security and argue, in particular, that the right to privacy must yield to these interests in the case of a direct conflict. I offer arguments from a number of different perspectives. I will, for example, begin with a case directly rooted in what I take to be ordinary case intuitions and then continue with an argument grounded in the distinction between intrinsic and instrumental value, which is thought to serve as a rough mark between what is important from a moral point of view and what is important from other points of view; though there can, obviously, be means to moral ends that will have moral significance in virtue of their relations to these ends. However, I will largely be concerned with showing that the major mainstream approaches to justifying state authority presuppose or imply that security interests can justify infringements of privacy rights. For example, I will argue that utilitarian and contractarian justifications of state authority entail that when privacy conflicts with the most important security interests, those security interests trump the privacy interests. I conclude that the idea that privacy rights are absolute in the sense that they are never justifiably infringed, which is surprisingly common, is not only counterintuitive, but lacks any general theoretical support from any of the major mainstream theories of legitimacy.
Kenneth E. Himma,
Privacy Versus Security: Why Privacy is Not an Absolute Value or Right,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol44/iss4/10
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