Privacy, Vulnerability, and Affordance

Cambridge Handbook of Consumer Privacy (Evan Selinger, Jules Polonetsky, Omer Tene, eds.). Cambridge University Press: Forthcoming

12 Pages Posted: 14 Aug 2016 Last revised: 27 Feb 2017

Ryan Calo

University of Washington - School of Law; Stanford University - Law School; Yale Law School

Date Written: February 23, 2017

Abstract

This essay begins to unpack the complex, sometimes contradictory relationship between privacy and vulnerability. I begin by exploring how the law conceives of vulnerability — essentially, as a binary status meriting special consideration where present. Recent literature recognizes vulnerability not as a status but as a state — a dynamic and manipulable condition that everyone experiences to different degrees and at different times.

I then discuss various ways in which vulnerability and privacy intersect. I introduce an analytic distinction between vulnerability rendering, i.e., making a person more vulnerable, and the exploitation of vulnerability whether manufactured or native. I also describe the relationship between privacy and vulnerability as a vicious or virtuous circle. The more vulnerable a person is — due to poverty, for instance — the less privacy they tend to enjoy; meanwhile, a lack of privacy opens the door to greater vulnerability and exploitation.

Privacy can protect against vulnerability but it can also be invoked to engender it. I next describe how privacy supports the creation and exploitation of vulnerability in ways literal, rhetorical, and conceptual. An abuser may literally use privacy to hide his abuse from law enforcement. A legislature or group may invoke privacy rhetorically to justify discrimination, for instance, against transgender individuals who wish to use the bathroom consistent with their gender identity. And courts obscure vulnerability conceptually when they decide a case on the basis of privacy instead of the value that is more centrally at stake.

Finally, building on previous work, I offer James Gibson’s theory of affordances as a theoretical lens by which to analyze the complex relationship that privacy mediates. Privacy understood as an affordance permits a more nuanced understanding of privacy and vulnerability and could perhaps lead to wiser privacy law and policy.

Keywords: privacy, vulnerability, affordance

Suggested Citation

Calo, Ryan, Privacy, Vulnerability, and Affordance (February 23, 2017). Cambridge Handbook of Consumer Privacy (Evan Selinger, Jules Polonetsky, Omer Tene, eds.). Cambridge University Press: Forthcoming. Available at SSRN: https://ssrn.com/abstract=2820759

Ryan Calo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Stanford University - Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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