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:

1. precisely because privacy has always been a highly subjective philosophical concept;
2. and is also a constantly morphing notion that evolves as societal attitudes adjust to new cultural and technological realities;
3. America may never be able to achieve a coherent fixed definition of the term or determine when it constitutes a formal right outside of some narrow contexts.

That doesn’t mean the privacy isn’t profoundly important to many of us, but privacy is, first and foremost, an exercise of personal determination and personal responsibility. To some extent, we have to make our own privacy in this world. In this sense, we can liken it to our right to pursue happiness. Here’s how I put it in Part I of my Harvard JLPP article:

Even if agreement over the scope of privacy rights proves elusive, however, everyone would likely agree that citizens have the right to pursue privacy. In this sense, we might think about the pursuit of privacy the same way we think about the pursuit of happiness. Recall the memorable line from America’s Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Consider the importance of that qualifying phrase—“and the pursuit of”—before the mention of the normative value of happiness. America’s Founders obviously felt happiness was an important value, but they did not elevate it to a formal positive right alongside life, liberty, physical property, or even freedom of speech.

This framework provides a useful way of thinking about privacy. Even if we cannot agree whether we have a right to privacy, or what the scope of any particular privacy right should be, the right to pursue it should be as uncontroversial as the right to pursue happiness. In fact, pursing privacy is probably an important element of achieving happiness for most citizens. Almost everyone needs some time and space to be free with their own thoughts or to control personal information or secrets that they value. But that does not make it any easier to define the nature of privacy as a formal legal right, or any easier to enforce it, even if a satisfactory conception of privacy could be crafted to suit every context.

The most stable and widely accepted privacy rights in the United States have long been those that are tethered to unambiguous tangible or physical rights, such as rights in body and property, especially the sanctity of the home. Moreover, these rights have been focused on limiting the power of state actors, not private parties. By contrast, privacy claims premised on intangible or psychological harms have found far less support, and those claims have been particularly limited for private actors relative to the government. All this will likely remain the case for online privacy. Importantly, if privacy is enshrined as a positive right even in narrowly drawn contexts, it imposes obligations on the government to secure that right. These obligations create corresponding commitments and costs that must be taken into account since government regulation always entails tradeoffs.

Therefore, even as America struggles to reach political consensus over the scope of privacy rights in the information age, it makes sense to find methods and mechanisms—most of which will lie outside of the law—that can help citizens cope with social and technological changes that affect their privacy. Part III will outline some of the ways citizens can pursue and achieve greater personal privacy.

I fully realize that this way of thinking about privacy leaves many challenging questions at the margin and I also understand how it will be unsatisfactory to those who view privacy as a “dignity right” that trumps all other values and considerations. But, to reiterate, what I am suggesting here is that we will likely never be able to achieve a coherent fixed definition of the term or determine when it constitutes a formal right outside of some narrow contexts (such as for sensitive health or financial information, where the potential harms of collection, sharing, and use are more tangible).  The primary reason for this is that privacy primary comes down to assertions about “harms” that are primarily psychological in character. But precisely because such asserted harms (1) lack a tangible/physical/monetary nature and (2) also can come into conflict with other liberty rights (especially the right to freely gather information and speak about it; i.e., First Amendment rights), it makes it more difficult to classify psychological “harms” as harms at all.

I feel the same way about concepts like “safety” and “security.” Who among us doubts these values and goals are important? As the father of two young digital natives, I am living a constant struggle to mentor my kids and ensure they have safe and healthy online interactions. But that doesn’t mean I think anyone in this world — including my own children — has an amorphous “right to safety.” What they do have a right to is not to be harmed by others in their online interactions. Where things become sticky, however, is when some child safety advocates adopt an extremely expansive view of what constitutes “harm” in this context and suggest that hearing a single dirty word or seeing a fleeting dirty image somehow irrevocably “harms” their mental well-being and development, or perhaps just their personal morality. (I have written about this here in dozens of essays through the years such as this one on “The Problem of Proportionality in Debates about Online Privacy and Child Safety” as well in longer papers, such as my recent law review article about, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.”)

While I appreciate the diverse beliefs and values that drives sensitivities about potentially objectionable online content, it is an entirely different matter when one claims “rights” and actionable “harms” in this context. It means that politics will essentially answer what are fundamentally deeply personal “eye of the beholder” questions. It is better, I believe to educate and empower citizens about safe and sensible online interactions and then let them determine what works best for them. Again, whether we are talking about safety or privacy, this model relies upon a certain amount of personal (and parental) responsibility.

To be sure, real harms exist and, at times, law will need to be brought in to right certain wrongs. For example, in the online safety context I favor strong penalties for anyone attempting predatory behavior or extreme forms of incessant harassment. In the privacy context, we’ll still need laws to deal with identity/data theft and certain uses of highly sensitive health and financial information. Outside of those narrow contexts, however, it is better to let people define their own online experiences free of top-down, one-size-fits-all regulatory enactments that attempt to make those determinations for all of us. To reiterate, we all have the right to pursue the objectives we care about–safety, privacy, or just happiness more generally–according to our own value systems. But we should be careful about elevating such amorphous concepts to the level of “rights” and then expecting the State to enforce one set of values and choices on a diverse citizenry.

The Pursuit of Privacy in a World Where Information Control is Failing

Over the weekend, Janet Morrissey of The New York Times posted an excellent article on the U.S. government’s continuing crackdown on Internet gambling. (“Poker Inc. to Uncle Sam: Shut Up and Deal“) Ironically, her article arrives on the same week during which PBS aired the terrific new Ken Burns and Lynn Novick documentary on the history of alcohol prohibition in the United States. It’s a highly-recommended look at the utter hypocrisy and futility of prohibiting a product that millions of people find enjoyable. If there’s a simple moral to the story of Prohibition, it’s that you can’t repress human nature–not for long, at least, and not without serious unintended consequences. Which is why Morrissey of the Times notes:

And so the poker world now finds itself in a situation many liken to Prohibition. America didn’t stop drinking when the government outlawed alcoholic beverages in 1919. And, in this Internet age, it won’t be easy to prevent people from gambling online, whatever the government says. “It’s a game of whack-a-mole,” says Behnam Dayanim, an expert on online gambling and a partner at the Axinn Veltrop & Harkrider law firm. “They’ve whacked three very large moles, but over time, more moles will pop up.”

Exactly right (except that it should be “whac” not “whack”! There’s no K in whac-a-mole.)  It reminds me of the paper that my blogging colleague Tom Bell penned back in 1999 for the Cato Institute with its perfect title: “Internet Gambling: Popular, Inexorable, and (Eventually) Legal.” As Tom noted back then:

Consumer demand and lost tax revenue will create enormous political pressure for legalization, which we should welcome if only for its beneficial policy impacts on network development and its consumer benefits. We should also welcome it for a more basic reason: as the Founders recognized, our rights to peaceably dispose of our property include the right to gamble, online or off.

Again, you can’t hold back human nature and the effort of millions to pursue happiness as they see fit. It was true of alcohol and it will be true of online gambling–eventually.

And although it represents the worst argument for legalization, Tom was right about the tax revenue benefits as a primary factor leading to legalization. As Morrissey notes in her Times piece:

Uncle Sam is leaving a lot of money on the table. Over 10 years, legal online gambling could generate $42 billion in tax revenue, according to the Congressional Committee on Taxation. An estimated 1.8 million Americans played online poker last year, and some make a living at it. Because of the legal issues in the United States, online card rooms typically base their computer servers elsewhere, in places like Costa Rica or, in the case of Full Tilt, in the Channel Islands.

It was the same story back during alcohol prohibition, of course. All the “money left on the table” was snatched up by foreign governments and organized crime, who were all too happy to satisfy the thirst Americans had. Some State governments have already realized this and are taking steps to partially legalize online gambling and get in on the action, as Morrissey reports:

Oddly enough, Internet gambling is already legal in the nation’s capital. Earlier this year, the District of Columbia became the first jurisdiction in the United States to legalize it. Officials there said they hoped the move would bring in $13 million to $14 million a year in tax revenue. But Washington may only be the start. Several bills now working their way through the House of Representatives would give online poker the run of the country.

Again, as Bell’s paper argued, it’s popular, inexorable, and it will eventually be fully legal. We just have to be patient while some lawmakers play through this latest silly experiment in legislating morality.

Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?”  Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.”  He also finds that:

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service.  Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”

On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.

But it’s not just Internet porn where we see this trend at work.  As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!

As Bill Carter of the New York Times reported in a 2004 article, “Many Who Voted for ‘Values’ Still Like Their Television Sin,” Nielsen ratings data shows that in many Republican-leaning “red state” markets, such programs garner higher ratings than in many Democratic-leaning “blue states.” For example, in the counties that constitute the greater Atlanta television market, ABC’s dramatic comedy “Desperate Housewives” was the top-rated show even though nearly 58 percent of voters in those counties voted for President Bush.  Similarly, in the traditionally conservative Salt Lake City market, where President Bush captured over 72 percent of the vote, the top four shows were “C.S.I.,” “C.S.I. Miami,” “E.R.,” and “Desperate Housewives.”

Likewise, in a 2004 column about “The Great Indecency Hoax,”  NY Times columnist Frank Rich noted that the same trend holds in conservative Oklahoma City, where “Desperate Housewives” is more popular than it is in Los Angeles, as well as Kansas City where the show is bigger than it is in New York City.  Rich quoted sociologist Herbert Gans who explained the phenomenon as follows: “For some people it’s a case of ‘I am moral therefore I can watch the most immoral show.'”

Such findings call into question the logic of traditional “community standards”-based regulatory efforts. Indeed, it is unclear how lawmakers can determine the relevant “community standard” for purposes of speech and content regulation when some of the most conservative communities in America are downloading as much porn as Edelman’s study finds, or when conservatives are watching smutty TV in greater numbers than liberals do.

The better approach, as I’ve argued here before, is to replace “community standards” with “household standards.”  That is, it would be optimal if public policy decisions regarding content took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.  That’s especially the case in light of the fact that less than 32% of U.S. households have any children in them, and those homes that do have children have plenty of tools and methods at their disposal to control objectionable content. Let’s empower parents to make decisions for themselves and their families so that Uncle Sam doesn’t need to play the role of national nanny for all of us.

• Edelman’s mention of porn consumption in Utah reminded me of this passage from Jeff Rosen’s 2004 essay on “The End of Obscenity” (which I discussed in greater detail here):

  three years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view: in an age of nationally distributed hotel pornography, there was little difference between the consumption habits of hotel guests in Salt Lake City or Las Vegas. Pornography is everywhere, suggesting that there is no national consensus against it and no vast disparity from one locale to another.

  Seems that those Utah residents are a horny bunch!  Maybe their new motto should be, “What happens in Utah, stays in Utah.”