Among the most fundamental and cherished human rights are those relating to personal autonomy and privacy. Privacy is a relatively new concept, based on Enlightenment philosophy that individuals are the focus of society and should have the right to live their lives without interference from others or the government so long as it does not affect those who do not wish to be affected. In this sense of freedom from intrusion, privacy has both intrinsic and instrumental value to individuals as a means of enhancing dignity and self respect. In addition, it has been seen as an important element in a democracy. It is an issue of great debate and discussion, particularly in the United States, where privacy laws are being challenged on various grounds, including national security.
The right to privacy is rooted in several legal traditions and more than 150 national constitutions mention it. A key element of the right to privacy is the principle that the private sphere, comprising the home, family and correspondence, is a protected area that should not be intruded upon, although there are exceptions (such as lawful counter-terrorism surveillance that necessarily operates in breach of privacy rights). The right to privacy also extends to protect name and likeness from unauthorized exploitation for commercial purposes. In the United States, privacy is a constitutional right, and damages can be awarded for violations.
Philosophers, jurists and lawyers have developed a range of theories of privacy. The most widely held view is that privacy is a necessary component of the right to liberty and, as such, cannot be denied or diminished without sacrificing other fundamental rights. This view is supported by the Supreme Court decision in Griswold v. Connecticut, which established a right to privacy, as well as by the fact that most people would not be willing to accept that their decisions about procreation or sexuality should be interfered with by government or other public agencies.
Other views on privacy are more critical of the concept and its foundations. One of these is the argument by Mary Allen that privacy merely consists of protection against access to information about oneself, and does not protect against governmental interference with choices involving procreation or sexuality. This position is contested by Robert Bork, who argues that privacy as defined by Griswold is an artificial creation of the Constitution that does not derive from any pre-existing right or natural law and that is therefore unconstitutional.
More positively, Daniel Solove and others argue that privacy does not simply have intrinsic and extrinsic value to the individual, but also has instrumental value to society, because it fosters and encourages the moral autonomy of citizens, a central principle of governance in a democracy (Solove, 2008). Others, such as Milan Kundera, support this position with a moving account of the need for human dignity, which is strengthened by the ability to make private choices and develop personal relationships. For these reasons, most writers continue to defend the idea that a fundamental right to privacy exists and should be protected.