The Elusive Definition and Value of Privacy

Today’s privacy problem is extremely complex. It is a multifaceted, dynamic problem; it is a market problem, a societal problem, and an individual and even a biological problem. What the term privacy circumscribes, what privacy harms are, what the value of privacy is, and what privacy solutions could be have all existed in a state of flux for some time. An examination of the relevant literature provides an introduction to some dominant privacy theories.

A. The Elusive Definition of Privacy

Recent necessary focus on privacy matters has sharpened the picture of what the word privacy actually describes, but that enhanced picture has also shone a light on the complexity inherent in even this ordinary step. The full scope of what privacy describes or refers to in nearly any context is fluid and does not spring from a single common denominator or essence. This is because privacy serves as a protector of boundary management, or the ability to determine for oneself; self-determination of subjectivity, or “tinkering,” as opposed to a socially-shaped determination of subjectivity.[i] While the two epistemological means of constructing subjectivity aren’t mutually exclusive, heavy emphasis on the latter via big data analysis tools threatens the very existence of the former today.[ii]

A popular conception of what the structure of privacy looks like, and the one that I currently adopt, comes from Professor Daniel Solove, who maintains that privacy is comprised of six distinct but overlapping and non-exclusive domains: (1) the right to be let alone — the famous conception by Justice Brandeis; (2) limited access to the self — the ability to limit unwanted access by others; (3) secrecy — the ability to conceal certain information from others as one wishes; (4) control over personal information — the ability to exercise control over information about oneself; (5) personhood — the protection of one’s personality, individuality, and dignity; and (6) intimacy — control over, or limited access to, one’s intimate relationships or aspects of intimate personal life.[iii] Because of the dynamic activity between these categories in different situations, however, a traditional legally formalistic definition of privacy is as elusive as a traditional legal value model to ascribe to it.

B. The Contested Value of Protecting Privacy

The value of protecting privacy as well remains in dispute. Privacy, especially in the U.S., has been maligned with the view that it is reactive or anti-innovation. In other words, that the more privacy some product or service allows, the more incomplete the information that results will be, and thus, the less helpful to innovation it will be. By the same logic, the less privacy allowed, and the more data points acquired, the better for innovation. This view has prevailed in U.S. privacy theory thus far and has resulted in the current stalemate notice and choice paradigm.[iv]Because privacy in this interpretation has to be reactively called upon to defend against the use of data that comes from a formed self and which should be the subject of innovative analysis, the only thing to do is to check with that formed self to see if analysis of that activity is not acceptable for some incomprehensible, nearly un-American, reason.[v]

However, privacy can also be thought of in the opposite way. Instead, in this other view, privacy is proactive and pro-innovation. More privacy makes way for tinkering, or a natural trial and error process to find out what a still-forming, dynamic self truly does and doesn’t enjoy; this allows for more independent thought because it is unmarred by unrelenting automated suggestions or surveillance capitalism measures. A training set for a machine learning algorithm that comprehends data which are self-determined, as a result of allowing for privacy, or tinkering, can promote a fuller view of the range of possibilities and relationships that businesses and other entities can profit from analyzing than a more socially-shaped one.[vi] This is not to say that self-determination and social shaping are so inimical as to be mutually exclusive. The two do and should continue to exist in a balance, with each leading the other by the hand at times.[vii] It is the fact that, at present, society has become so adept at performing social shaping, at the expense of allowing for self-determination, that vitiates such a strong defense of it.

[i] Julie E. Cohen, What Privacy is for, 126 Harv. L. Rev. 1904, 1904–08 (2013).

[ii] Id.

[iii] Daniel J. Solove, Conceptualizing Privacy, 90 Calif. L. Rev. 1087, 1092 (2002).

[iv] Cohen, supra note 1, at 1907.

[v] Id.

[vi] Id. at 1912.

[vii] Id. at 1909.