A Contextual Approach to Privacy Online

Daedalus 140 (4), Fall 2011: 32-48

17 Pages Posted: 20 Feb 2015  

Helen Nissenbaum

Cornell Tech; New York University

Date Written: 2011

Abstract

Recent media revelations have demonstrated the extent of third-party tracking and monitoring online, much of it spurred by data aggregation, profiling, and selective targeting. How to protect privacy online is a frequent question in public discourse and has reignited the interest of government actors. In the United States, notice-and-consent remains the fallback approach in online privacy policies, despite its weaknesses. This essay presents an alternative approach, rooted in the theory of contextual integrity. Proposals to improve and fortify notice-and-consent, such as clearer privacy policies and fairer information practices, will not overcome a fundamental flaw in the model, namely, its assumption that individuals can understand all facts relevant to true choice at the moment of pair-wise contracting between individuals and data gatherers. Instead, we must articulate a backdrop of context-specific substantive norms that constrain what information websites can collect, with whom they can share it, and under what conditions it can be shared. In developing this approach, the paper warns that the current bias in conceiving of the Net as a predominantly commercial enterprise seriously limits the privacy agenda.

Keywords: privacy, cyberlaw, contextual integrity, third-party tracking, privacy law

Suggested Citation

Nissenbaum, Helen, A Contextual Approach to Privacy Online (2011). Daedalus 140 (4), Fall 2011: 32-48. Available at SSRN: https://ssrn.com/abstract=2567042

Helen F. Nissenbaum (Contact Author)

Cornell Tech ( email )

111 8th Avenue #302
New York, NY 10011
United States

New York University ( email )

New York, NY 10003
United States
212-998-5251 (Phone)

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