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 →
In his latest weekly Wall Street Journal column, Gordon Crovitz has penned a review of the new Jeff Jarvis book, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live
. Gordon’s review closely tracks my own thoughts on the book, which I laid out last week in my Forbes essay, “Is Privacy Overrated?” Gordon’s essay is entitled “Are We Too Hung Up on Privacy” and he finds, like I do, that Jarvis makes compelling case for understanding the benefits of publicness as the flip-side of privacy. Instead of repeating all the arguments we make in our reviews here, I’ll just ask people go check out both of our essays if they are interested.
I did, however, want to elaborate on one thing I didn’t have time to discuss in my review of the Jarvis book. While I like the approach he used in the book, I thought Jarvis could have spent a bit more time exploring some the thorny legal issues in play when advocates of privacy regulation look to enshrine into law quite expansive views of privacy “rights.”
One of the things that both Crovitz and I appreciated about the Jarvis book was the way he tries to get us to think about privacy in the context of ethics instead of law. “Privacy is an ethic governing the choices made by the recipient of someone else’s information,” Jarvis argues, while “publicness is an ethic governing the choices made by the creator of one’s own information,” he says. In my review, I explained why this was so important: Continue reading →
What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]
by Adam Thierer & Berin Szoka
The Progress & Freedom Foundation,
Progress on Point No. 16.19
Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:
- People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
- All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.
While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as
Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.
That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families. Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.