Page 79 - Privacy in a Cyber Age Policy and Practice

PRIVACY: A PERSONAL SPHERE, NOT HOME-BOUND 65

accessible-inaccessible, and society-individual, among other conceptual-
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izations, and that is represented in law as a “boundary which the law
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(and its agents) cannot cross absent special circumstances” —is highly
gendered. In particular, women were historically legally precluded from
participating in numerous political, social, and public activities, including
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voting and property ownership. Prior to the Industrial Revolution, women
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were largely limited to the realm of family and household work; after
the Industrial Revolution, paid labor was no longer frequently conducted
within the house but rather elsewhere, and thus breadwinning became a
public activity from which the “ideal” woman was typically barred. More-
over, the liberal social contract enshrined in English common law and,
eventually, the Fourth Amendment of the U.S. Constitution depended on
this exclusion: To offer (white) men sovereignty over the home required
that the home include subjects who had already been precluded from par-
ticipation in the public sphere—that is, women—and to offer (white) men
a refuge from public space required that someone—again, women—make
that private sphere a comfortable retreat by cooking, cleaning, and caring
for children. Feminists therefore argue that the public-private dichotomy
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is artificial, a rhetorical tool of power. There is no difference between the
public and the private, but language to the contrary reflects a false belief
in such a difference; the linguistic or conceptual distinction solidifies itself
and structures social conditions to women’s disadvantage. 44
Another criticism of spatial privacy concerns some more specific power
implications of this distinction. “Women may be victims of men’s pri-
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vacy,” insofar as spatial privacy protects from state interference violent
or oppressive acts of men against women that take place within the home.
Catherine MacKinnon famously wrote, “For women the measure of inti-
macy has been the measure of oppression. This is why feminism has had to
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explode the private.” Until the 1970s, for example, marital rape was not
a crime in most of the United States, and marital rape remained legal in
North Carolina until 1993.
To redress these problems, feminist legal scholars argue for the rejection
of the home as an inherently private sphere into which the state may not
intrude, writing that “the state must cross the private boundary of home
and family and regulate the distribution of power within that sphere.” 47
Feminist scholars also attest that the public-private dichotomy and
women’s formal and informal exclusion from the public realm has other
negative impacts on women. For example, the exclusion of “proper”
women from paid work decreased their economic power and indepen-
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dence. Women, especially unskilled women, are now encouraged to take
lower-paying jobs such as nursing, cleaning, child care, and secretarial
work, which typically involve significant affective labor and are devalued
precisely because of their resemblance to private housework. 49