Yes, the two attributes of the assertion are compatible. The notion of privacy is intimately tied to the notion of an individual's sense of self that is at the core of his/her personality but that exists only in relation to and in opposition to others in a cultural milieu. At the heart of the notion of privacy is the notion of the individual who has a need to be left alone but also has a need to be accessible to others. The degree and levels to which a person wants to be left alone or accessible to others is derived from his sense of himself/herself with regards to others in society and what society allows him to.

Warren & Brandeis related the growth of the notion of privacy (and the corresponding development in the law) to the development of the individual's awareness of himself/herself not only as having a biological nature with basic bodily and property rights but also as having a spiritual nature with feelings and intellectual rights to be protected. But this increasing self-awareness and the corresponding need for protections are derived from cultural values about the individual and society. Warren & Brandeis tried to pin the notion of a right to privacy to a principle of an "inviolate personality," which seems to escape every legal framework that could be applied to it, but they also recognized that this right to privacy, if it is to be afforded the protection of the law, must be seen in light of the individual's relationship to society.

Kang enumerated some values of privacy which are fundamental to an individual's well-being and which are culturally defined. These include avoiding embarassment, constructing intimacy, and averting misuse of personal information. There are certain behaviors and actions that may not necessarily be either blameworthy or stigmatized but are nevertheless embarrasing to a person if exposed or broadcast to other people. Most cultures want to keep bodily activities relating to excretion and sex private. Individuals are better able to construct intimacy and build social relationships when they can control or modulate the amount of personal information that they can share or keep secret. Each culture has certain rules about disclosure of intimate personal information in social relationships and these rules become part of how the individual negotiates his/her need for privacy. Averting misuse of personal information is necessary to the individual's sense of himself/herself especially where it concerns the distribution of goods and services in society. In cultures where a job determines the main identity of a person, the loss of a job can be devastating.

Explain the notion of "reasonable expectation" in the legal concept of privacy. Is it inevitable that as technologies make expectations of privacy less and less tenable that the zones of privacy become more and more circumscribed?

In Sutton's Module 4 lecture, he says that in order to give rise to a right of privacy in any given situation, that situation must be one in which society considers that a reasonable person has a reasonable expectation of privacy. There are naturally private situations where no reasonable expectation of privacy holds. One can lose some measure of privacy in such situations but such loss cannot be considered an invasion of privacy. An invasion of privacy can be considered in situations that society normatively considers private. A person can have a reasonable expectation of privacy in these situations where there are culturally-sanctioned expectations of privacy. The line between naturally and normatively private situations, however, is not easy to draw.

In U.S. v. Miller (1976), the Court ruled that there is no reasonable expectation of privacy in a person's bank records. Another situation where there is no reasonable expectation of privacy in personal information held by third-party record keepers is in email communication done over a company or organization email system. I am including the following excerpts from email related cases to illustrate the point (all articles from FindLaw):

1. Employment Issues in Communications Technology

[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost." (914 F. Supp. at 101.) In Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996).

2. Labor & Employment: April 1999

Bourke v. Nissan Motor Corporation contained similar claims. In addition, the employees whose mail was read were fired because some of the messages included inappropriate jokes and language. The court granted summary judgment for the employer, finding that the employees had no reasonable expectation of privacy in their e-mail messages, because they had signed a form saying company policy restricted computer use to company business, and also because they were aware in advance of their terminations that their e-mail was read from time to time by individuals other than the intended recipients. The appellate court agreed in another unpublished decision. (Case No. BO68705 (1993)).

3. Employees' Right To Privacy In Washington

Searches, however, need not be reasonable if the employee has no legitimate expectation of privacy in the area being searched. Under Supreme Court guidelines, employers may avoid having to articulate a valid reason for a search if it is firmly established and practiced that an employee has no reasonable expectation of privacy. Many employers have therefore adopted policies to reduce the possibility of an employee claiming a reasonable expectation of privacy. The following is an example:

Information, possessions or objects stored or kept on or in the Employer's or clients' computers, network, equipment, voice mail, e-mail, on-line accounts, or in offices, desks, work stations, closets and other physical spaces within the firm or on firm property are subject to inspection by the firm without notice, and should not be considered private.

It cannot be denied that technologies such as email and the Internet exponentially permit the creation, acquisition, storage, dissemination, disclosure and use of personal information to an extent that it seems we do not have control over the flow of personal information. But it is NOT inevitable that as technologies make a reasonable expectation of privacy less and less tenable that the zones of privacy become more and more circumscribed.

Kang wrote about the conflict between the private sector and individuals over the valuable personal data generated in cyberspace with the former seeking to exploit it commercially and the latter resisting those exploits. What we see here are individuals and corporations (represented by individuals) as having the ability to make choices and contracts regarding privacy. But beyond the capacity of corporations and individuals to make decisions is also the capacity of the law, as Warren & Brandeis wrote about the capacity of the common law, to grow "to meet the new demands of society." Kang also wrote of the capacity of the law to define "a default rule that allows only functionally necessary processing of personal information unless the parties expressly agree otherwise." When individuals, corporations, and the law abdicate their capacities to choose and to grow, then it would be the society and culture that these entities constitute, not technologies per se, that will make a reasonable expectation of privacy less and less tenable.

It was the Court (as represented by individual justices) that ruled that there is 'no privacy interest in personal information held by third-party record keepers." It was Congress that chose a sectoral rather than an omnibus approach to the flow of personal information in the private sector. It was corporations and organizations (as represented by individuals in company leadership roles) who decided to use the court's ruling to their advantage by crafting policies that would make it impossible for an employee to claim a reasonable expectation of privacy and to use Congressional enactments on privacy to meet their own particular corporate needs without regard to the privacy of individuals. It was individual employees who chose to include personal information in their email messages over company email systems. It is a society and a culture (as expressed in individual, corporate, and legal decisions), not technologies per se, that will ultimately define what makes for a reasonable expectation of privacy.

It may also be the case that technologies actually expand some zones of privacy as they circumscribe others. The Internet perhaps has enabled many people to exercise a greater degree of decisional and spatial privacy but at the expense of informational privacy. Electronic communication expands a person's spatial privacy as he/she doesn't have to deal with physical intrusions into his/her comfort level of interpersonal space as he/she would have in face-to-face communications. But the relative anonymity provided by this physical distance and the ease of communicating instantaneously to many people through email, chat, instant messaging, etc. may remove normal interpersonal inhibitions and make a person divulge sensitive and intimate personal information that he/she would not normally divulge. The Internet has also allowed many people to buy and sell goods and services more easily and the economic benefits derived from these activities has probably enabled some people to buy bigger houses and bigger SUVs that afford them greater spatial privacy. But in the course of these economic transactions they had to give out personal information routinely to third-party record keepers who could use it to create consumer profiles or sell the data to yet another third party.

In any case, I think that technologies have always posed opportunities and challenges to the human species that make them. Humanity's relationship to the technologies that it creates has not always been pretty but humans have always had a choice to use technologies for bad or for good. In relation to what I'm studying in this class, I can always choose to honor a person's right to privacy by being accountable for my actions and by exercising my professional duty of care.