Introduction to Ethical Concepts, Part 4

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Contents/Introduction
Part 1. Values and Value Judgments
Part 2. Ethical Requirements on Action
Part 3. Moral Character and Responsibility
Part 4. Privacy, Confidentiality, Intellectual Property and the Law
Fine Points
Notes

Part 4. Privacy, Confidentiality, Intellectual Property and the Law

Privacy and confidentiality

1. Privacy and confidentiality

The claim to privacy finds moral justification in the recognition that people need to have control over matters that intimately relate to them in order to function as moral agents. Therefore, privacy is closely connected to the right of self-determination. What one person is expected to do to respect another's privacy varies from culture to culture. For example, expectations that people will knock on the door before entering certain areas assumes the existence of doors and expectations about the amount of "private space" to which a person is entitled. In some contemporary cultures parents oversee their children's affairs much more closely than in others. In a traditional Chinese culture, it is expected that parents will do such things as read the mail addressed to their adolescent children, as part of their responsible oversight of the children. In Anglo-American culture, such acts would be viewed as intrusions of the adolescent's privacy.

It is common to distinguish three species of privacy: physical, informational, and decisional (Allen, 1995, 2065f). In addition, philosopher and legal theorist Anita Allen distinguishes dispositional privacy (Allen, 1987, 15-17). Physical privacy is a restriction on the ability of others to experience a person through one or more of the five senses; informational privacy is a restriction on facts about the person that are unknown or unknowable; and decisional privacy is the exclusion of others from decisions, such as health care decisions or marital decisions, made by the person and his group of intimates. Finally, dispositional privacy is a restriction on the ability of others to know a person's states of mind.

As an example of how dispositional privacy differs from informational privacy, consider the Lotus Corporation's proposal to sell their MarketPlace Data Base, a database that contained extensive information about the consumption patterns of large numbers of people. This was widely criticized as an intrusion of the privacy of those profiled, even though the items of information aggregated were not the sort of information that is considered private (3).

The aggregated data offered by Lotus gave and was intended to give dispositional access to people's states of mind, specifically their consumer preferences, whereas the component items of information did not. Madison Powers (1993, 8-22) rejects Allen's distinction and argues for reducing all three types of inaccessibility to informational inaccessibility. However, the Lotus example speaks for the greater adequacy of Allen's scheme: if knowing a person's dispositions as a species of privacy invasion, then the aggregation of non-private facts can result in a privacy invasion--taken as a whole the facts do give evidence of dispositions.

Questions of privacy have become particularly prominent as computers and other technological innovations have made it possible to collect, assemble and transmit quantities of information in ways that previously were impossible. Once the questions of appropriate levels of privacy protection have been determined, the question of how that level of privacy can be practically ensured is a matter of security. The security of a system is the extent of protection afforded against some unwanted occurrence such as the invasion of privacy, theft, the corruption of information and physical damage.

Secrecy is one strategy to preserve privacy. Another is to keep sensitive information confidential. Confidential information is information that may be shared, but only within a restricted group, usually those involved in some joint task who have a need to know the information. For example, information in a medical record is confidential information that is used by health workers who are bound not to disclose the information to outsiders except for legitimate purposes such as insurance reimbursement. Should someone, say a biomedical engineer, wish to report on a clinical at a conference that person must first remove identifying information about the patient unless the patient explicitly agree to be identified.

In engineering practice a reason more common than privacy for holding information confidential is preservation of rights to intellectual property. For example, if information involving a trade secret or a company's business plan is disclosed, then this disclosure could give competitors an advantage. A trade secret is a device, method or formula that gives one an advantage over the competition and which must be kept secret to preserve that advantage. The formula for Coca-Cola is a trade secret. There are no legal protections for trade secrets. It is up to the holder of the trade secret to provide sufficient security to prevent direct disclosure. It is legal to use reverse engineering to learn a competitor's trade secret, so information that can be discovered by these means may not remain a trade secret for very long.

Secrecy is not the only way of retaining special rights to intellectual creations. There are also legal protections in the form of special property rights: copyrights, patents and trademarks. Before considering these legal concepts, notice that the codes of ethics or conduct of some professional societies specify ethical norms for both the general crediting of intellectual work, and, more specifically, for honoring property rights embodied in patents, copyrights and trademarks. For example, the NSPE Code of Ethics specifies the following among an engineer's professional obligations:

Engineers shall give credit for engineering work to those to whom credit is due, and will recognize the proprietary interests of others.
a. Engineers shall, whenever possible, name the person or persons who may be individually responsible for designs, inventions, writings, or other accomplishments.
b. Engineers using designs supplied by a client recognize that the designs remain the property of the client and may not be duplicated by the Engineer for others without express permission.
c Engineers, before undertaking work for others in connection with which the Engineer may make improvements, plans, designs, inventions, or other records which may justify copyrights or patents, should enter into a positive agreement regarding ownership.
d. Engineers' designs, data, records, and notes referring exclusively to an employer's work are the employer's property.

Copyrights and patents, unlike trade secrets are legal rights to intellectual property. A clause of the U.S. Constitution (4) provides for encouraging the development of science and the useful arts by granting to authors and inventors a time-limited exclusive right to their writings, discoveries and inventions. A copyright is a legal right to exclusive publication production, sale, distribution of some work. This right is most commonly held by the author or composer or publisher of a work, but may be assigned to others or inherited. The propritary interest that protected by the copyright is the "expression," not the idea. Taking credit for another's idea is plagiarism, so copyrights are not the legal equivalent of a prohibition of plagiarism. Copyright protection of a work under the U.S. 1976 Copyright Act remains in effect until fifty years after the death of the author. A patent is a special, alienable legal right granted by the government to use, or at least (in case there are other patents which your use of your patent would infringe), to bar others from using a device, design or type of plant that you have created. In the US this is 17 years for useful devices, and 14 years for designs. In taking out a patent one makes evident or "patent" the nature of one's invention.

In the US, to be eligible for a patent an application must be initiated within one calendar year of "public disclosure" of the idea. The European and Japanese patent laws require application prior to public disclosure. However, most countries honored the patents taken out in other countries.

To patent a device one must prove that it is useful, original and not obvious. Therefore not all inventions are patentable. This is one reason to hold some invention secret rather than to patent it. Another is that because there is no legal protection for a trade secret there is no expiration date on that protection. Trade secrecy puts a burden of secrecy on the holder of the trade secret, however.

To establish that a patent is valid, it must survive a court challenge. Both obtaining and defending a patent is costly. This is a third reason that many people either try to protect their intellectual property in other ways or hold the patent jointly with some organization that has a legal staff.

A trademark, unlike a trade secret, is legally protected. It is an officially registered name, symbol or representation the use of which is legally restricted to its owner.

Many legal notions were discussed in this section. The final section will consider the ethical standing of the law and various forms of conscientious refusal where no legal questions are at stake.

Ethics, Conscience and the Law

In the earlier discussion of moral rights I noted that moral rights and legal rights must be distinguished, and

a person may have a legal right to do something, but not a moral right to do it, and
some laws are unjust.

Does this mean that the law has no moral force? What then was the point of introducing legal notions?

It is said that there are two things one does not want to watch being made: sausage and law. The implication is that in the case of law, seeing the influence of particular interests on legislation can lead one to doubt that the resulting law has moral authority. Most societies attempt to have laws that are just and morally sound, notwithstanding the particular influences on a given piece of legislation. Many individual laws are neither morally sound or corrupt, just or unjust in themselves. For example, requiring everyone to drive on the right side of the road is not morally superior to requiring everyone to drive on the left side of the road, although it certainly is prudent to require everyone to drive on the same side of the road. Some individual laws or some groups of laws may be judged just or unjust or morally sound or corrupt by standards internal or external to the legal system. The assumption that the system of laws is meant to be just and decent puts the ethical burden of proof on any person who claims that ethically speaking, some law is unjust or that one ought not obey it. An ethical person is expected to be law-abiding except where they can show good reasons for thinking some law unjust or immoral.

Publicly breaking the law in order to test its constitutionality through the court system is part of the quality control of the legal system, so to speak. However, one may break a law so as to test it not by a constitutional standard but by some other moral standard. Doing this is called civil disobedience. It requires breaking the law publicly as an attempt to draw public attention to an injustice) and non-violently. Civil disobedience aims to bring about a change, often a change in the law that was broken. It requires a willingness to undergo whatever punishments the law provides for those who break that law. The term "civil disobedience" is applied even when the alleged injustice that a person protests is not an injustice of the law that the person publicly and non-violently violates one law to draw attention to another law or legally sanctioned activity that one believes to be unjust. Recent examples include trespass on the grounds of nuclear weapons facilities and abortion clinics. Henry David Thoreau's 1849 essay on civil disobedience is a classic statement on the subject (6).

It is also possible to change a law by a public protest that breaks no laws but attempts to use non-violent means to draw attention to a perceived injustice, especially injustice in the law. Non-violent protest, such as the Alabama bus boycotts that protested segregated busing, uses many of the same methods as civil disobedience but do not break any laws. Examples of conscientious refusal include refusal to carry out a work or military order that one believes to be immoral, refusal to eat higher animals or use products that have been tested on them. It can occur in work or non-work situations and need not involve breaking any law. It may be done either simply from a motive of not participating in what one sees as a moral wrong or it may be done with the hope of making a public protest that will draw attention to the situation one believes is wrong.

Finally, there is outright breaking and attempt to evade the law on grounds of conscience. Refusing to turn over those whom the Nazis wished exterminated--Jews, homosexuals, gypsies--is an example. Such action is covert, as contrasted with the publicity of civil disobedience. It is morally justified only under conditions in which public protest would be futile and a grave wrong is done if one complies with the law.

Sometimes all of the actions discussed in this section are loosely referred to as "civil disobedience" but if this is done it is still be important to distinguish between what are here called non-violent protest, conscientious refusal, and a conscientious attempt to evade the law, since there are relevant ethical differences among these acts.

The purpose of this introduction has been to present basic ethical terms and distinctions that are used in discussion of many ethical questions. These are primarily questions that arise in technologically developed democracies, and are terms and distinctions that are intelligible from a variety of cultural and religious perspectives within such societies. Other concepts, usually ones with application to a more limited set of situations, will be introduced as needed in later chapters.

pdsarin@mit.edu