Defining “privacy” is a legal and philosophical nightmare. Few concepts engender more definitional controversies and catfights. As someone who is passionate about his own personal privacy — but also highly skeptical of top-down governmental attempts to regulate and/or protect it — I continue to be captivated by the intellectual wrangling that has taken place over the definition of privacy. Here are some thoughts from a wide variety of scholars that make it clear just how frustrating this endeavor can be:
- “Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is.” – Judith Jarvis Thomson, “The Right to Privacy,” in Philosophical Dimensions of Privacy: An Anthology, 272, 272 (Ferdinand David Schoeman ed., 1984).
- privacy is “exasperatingly vague and evanescent.” – Arthur Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers, 25 (1971).
- “[T]he concept of privacy is infected with pernicious ambiguities.” – Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. REV. 34, 35 (1967).
- “Attempts to define the concept of ‘privacy’ have generally not met with any success.” – Colin Bennett, Regulating Privacy: Data Protection and Public Policy In Europe and the United States, 25 (1992).
- “When it comes to privacy, there are many inductive rules, but very few universally accepted axioms.” - David Brin, The Transparent Society: Will Technology Force Us To Choose Between Privacy and Freedom? 77 (1998).
- “Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.” – Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2087 (2001).
- “[privacy] can mean almost anything to anybody.” – Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 Mich. Telecomm. & Tech. L. Rev. 35, 37 (2002).
- privacy has long been a “conceptual jungle” and a “concept in disarray.” “[T]he attempt to locate the ‘essential’ or ‘core’ characteristics of privacy has led to failure.” – Daniel J. Solove, Understanding Privacy 196, 8 (2008).
- “Privacy has really ceased to be helpful as a term to guide policy in the United States.” - Woodrow Hartzog, quoted in Cord Jefferson, Spies Like Us: We’re All Big Brother Now, Gizmodo, Sept. 27, 2012.
- “for most consumers and policymakers, privacy is not a rational topic. It’s a visceral subject, one on which logical arguments are largely wasted.” – Larry Downes, A Rational Response to the Privacy “Crisis,” Cato Institute, Policy Analysis No. 716 (Jan. 7, 2013), at 6.
In my new Harvard Journal of Law & Public Policy article, “The Pursuit of Privacy in a World Where Information Control is Failing” I build on these insights to argue that: Continue reading →