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The privacy of the shrew

Is it wrong for documentary film makers to film intimate moments in the lives of non-human animals? David Attenborough has used fibroptic cameras to obtain views of the inside of a platypus’ nest, providing never-before-seen images of the birth and feeding of a newborn platypus. But imagine that he had used similar technology to obtain pictures from a human home birth, or to take pictures of copulating couples in their homes? Brett Mills, a lecturer in television studies at the University of East Anglia has controversially suggested that animals may have a right to privacy that is breached by filming them without their consent.

Why would it be wrong to film humans without their knowledge, but not wrong to do the same to animals. Imagine that the subjects of the filming never knew that they had been filmed.
Is this 'No harm, no foul?'

Brett Mills’ suggestion has been ridiculed by a number of commentators (some have suggested that it is a prime example of wasted academic effort), but others have taken it more seriously. Jean Kazez over at In Living Color provides several additional thought experiments:

* The Truman Show. People inside the bubble aren't aware that they are on camera, and aren't hurt by it. But surely the audience on the outside are doing something wrong?

* Babies. Suppose a psychologist wants 24 hour footage of an infant. Should I allow a camera to trail my child, assuming the footage will be anonymous and the child will never find out?

* Individuals with severe intellectual disability. Why not set up a webcam so weirdos can watch them take baths, and the like? They'll never know it, so "no harm, no foul"?

Kazez argues that drilling into a platypus’ home shows a lack of respect for the animal and their desire for privacy. “The platypus enters the burrow for privacy and protection. It's not anthropomorphic or far-fetched to think that's what she prefers.”

But it may be worthwhile distinguishing different types of privacy interest. One type of interest is an explicit desire that some of our actions are performed out of the gaze of others – or at least out of the gaze of most other members of our species. (As an interesting aside, when we seek privacy we don't normally worry about excluding non-human animals. We don't worry about the lizard or insect on the wall, the bird on the tree branch outside the window, or the cat sitting on the couch). We deliberately seek places where we will not be observed or overheard, close the curtains etc. We are offended if we discover someone watching or listening to us.

However, there is a second, higher-level, more abstract, desire that certain of our activities are private and remain so even if we are and remain unaware of the observer.
It makes some sense to extend the first interest to some non-human animals. The platypus does not want to be disturbed in her burrow. If we obtrusively dig our way in we are likely to cause her fear and discomfort, and frustrate her desire to be in a safe, secure place. Similarly, climbing up a tree to peer into a nest is likely to disturb and distress a bird.

But it makes no sense to extend higher order privacy desires to a platypus, to birds, or to most other non-human animals. Watching a rare bird through a telescope or taking their photograph with a telephoto lens is not problematic because they lack (as far as we can tell) a higher order desire for privacy. Not only do they lack the concept of long-distance observation, but they lack a desire that they remain unobserved even if unaware of that observation.

Here is another way of justifying it. When we reflect on an action that would affect another and contemplate the golden rule we should ask not "what would I want", but "what would I want if I were them". We shouldn’t film fellow humans giving birth or having sex without their knowledge because if we were them we almost certainly would not want to be filmed. On the other hand, imagining ourselves as the platypus, we would not want to be disturbed, but would likely not care about covert surveillance.

In Kazez’ thoughtful and interesting post and in the comments several other provocative questions are posed. Would it be wrong for aliens to watch us from space in a manner akin to the documentary film makers? “Imagine an immortal, omniscient intelligence, forever watching us and even knowing our thoughts before we think them.” Does God breach our right to privacy?

Filming animals in the wild is a 'breach of their Privacy' Daily Mail

Narwhals have tusks, not rights Guardian

Why we should consider the privacy of animals Guardian 30/4/10

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5 Comment on this post

  1. Christopher Wareham

    I like the argument, but it doesn’t seem to address Kazez’s examples of babies and individuals with severe intellectual disability. On the face of it, neither of these are cases in which a higher order privacy desire is thwarted, and yet most people would still think it was wrong for weirdos to spy on babies or the mentally disabled. I’d be interested in how you would respond to these cases.

  2. Dominic Wilkinson

    Thanks Christopher,

    In the case of babies we might well think that they will have a future interest in not now being filmed in ways that are degrading or disrespectful. (Most people, I suspect, would not care particularly about being filmed by a documentary filmmaker as an infant – given that it is highly unlikely to have any impact on their own lives. However, the majority would object to being filmed by a pornographer for example).

    For those with severe intellectual disability, the above argument will not work. In that case we might defend a right to privacy in two different ways. We could argue that they share an objective interest in privacy with the rest of the species, even though they will not (subjectively) have a particular preference for this. But it is not clear why interests of this sort should be shared amongst the species and not between species. Alternatively, and perhaps more plausibly, there is a third party interest at stake, since the family members, and friends of the disabled person, and other members of the community are likely to have a strong preference that those with severe intellectual disability have their privacy respected (to the same degree as if they were not disabled).

  3. I think the hinge is that a right to privacy is something attributed to a person. A platypus is not a person, so has no right to privacy.

    The question that’s really being asked is whether platypuses ought to be persons. Until a coherent argument that extends the benefits of personhood has arrived, considerations for platypus’ rights can be dismissed.

    # More Provocative Questions
    What about the bacteria that populate every photo ever taken? And the insects and plants? Considering that most life is unable to grant consent and that taking a photo without some life in it is virtually impossible, must we conclude that picture taking is inherently unethical? Certainly if a right to privacy is extended to all life forms we must.
    Should we be able to take pictures into distant galaxies before being absolutely certain that those galaxies house no life whose rights might be infringed upon by a hastily recorded proton? How weird would it be for a giant alien space craft to arrive intent on prosecuting the population of earth as Peeping Toms? Would we consider such charges legitimate?

  4. Dominic Wilkinson

    Thanks James,

    I am not so sure that the answer to this can turn on personhood. As in other contentious ethical questions changing the focus to ‘is X a person’ rather than ‘should we do Y to X’, either changes the terminology without changing significantly the philosophical issue, or risks begging the question.
    I would rather ask – does X have an interest in their privacy being respected?
    Part of the point of the post was to distinguish different types of privacy interest, and suggesting that nonhuman animals might have some privacy interests, but not necessarily the same as humans.

    On the account that I have given, neither bacteria nor insects, nor plants would have any privacy interests, since they have no desires that are affected by being observed. We shouldn’t extend a right to privacy to every living thing. But we might extend a basic privacy right to all living things that have a preference or desire that some of their activities remain private.

    As for aliens and privacy – there I think the answer is more complicated. A right to privacy doesn’t usually extend to freedom from any observation at all. There are no human rights that would be violated by aliens taking pictures of our planet from distant galaxies, accordingly there is no reason to refrain from taking pictures of distant planets. Of course it is possible that there is a distant planet where aliens are so sensitive to outside observation that they would have a strong preference that no other species even takes pictures of their planets. If there were such a super-sensitive race, and we knew that it offended them, then there would be an argument for not photographing their planet. But the mere possibility of a rights violation or of interest-frustration shouldn’t prevent our star gazing.

  5. I suppose we should talk about privacy rights in terms of their social function. What’s privacy about? what’s a privacy right for? I suspect, mainly security and shame (and respect). We hid things because we are ashamed (sex, harsh action against others, acts of questionable propriety or ethics, acts that reveal something about us we don’t want others to know). We also hide things because others’ knowledge of them would compromise political liberty or tactics in political action or in business, or maybe even plans to overthrow the government.

    I think uncovering things about which we are ashamed for others to see or know about, to the extent that it doesn’t involve criminal acts, are a good ground for a common law right to privacy, but not necessarily a right to privacy enforced by the criminal law. This right clashes with the First Amendment’s right to speak and publish, and probably against similar policies in the UK. Of course, part of the rub comes in the phrase “criminal acts” which can involve various sexual acts, raising the question in the US as to whether there should be a US or state constitutional prohibition on criminalizing such acts.

    As to security, the question is “security against whom”? As to business security, there is already adequate legal protection. As to Political security, we are really talking about security against state interference with political activity, and that is not usually (but is more and more likely to be treated as such in the US) a matter of privacy. If you take the National Rifle Association at its word, however, the government and its might must always be guarded against (preferably with guns). So it is easy for us on this side of the Atlantic to think in terms of privacy rights against government intrusion.

    There is one more area of privacy which is a matter of contention here, and perhaps in Europe as well — privacy of consumers. I find that a difficult one to chew on, given the benefits that arise from data organization to make advertising relevant to the individual consumer. But then, again, the data may also be available to the governments, state and Federal and that pops me back to the preceding paragraph

    In the US, privacy as a Constitutional right has nothing to do with secrecy, but rather with freedom from interference with consensual sex and its consequences. or so it seems. But, there is a common law right to privacy invented by Brandeis and another scholar, and is given effect in various states. It covers mainly “personal” matters about which the actor wants kept secret or limited to a small group of invited people. Shame?

    I don’t think animals have shame. I think they are concerned about security, however. Humans, knowing about the secret habits of particular animals underground or in caves are made more capable of hunting them and killing them. Sort of like enemy combatants or such like. If animals have any privacy rights, it must be about those things that make them less secure.

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