70 Pages Posted: 7 Jan 2005 Last revised: 6 May 2008
In this Article, Professor Solove develops a new approach for conceptualizing privacy. He begins by examining the existing discourse about conceptualizing privacy, exploring the conceptions of a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. Solove contends that the theories are too narrow or too broad. With a few exceptions, the discourse seeks to conceptualize privacy by isolating one or more common essential or core characteristics of privacy. Expounding upon Ludwig Wittgenstein's notion of family resemblance, Solove contends that privacy is better understood as drawing from a common pool of similar characteristics. Rather than search for an overarching concept, Solove advances a pragmatic approach to conceptualizing privacy.
In Part I, Solove discusses and critiques the conceptions of a wide array of theorists under six general headings, which capture the recurrent ideas in the discourse. These headings include: (1) the right to be let alone - Samuel Warren and Louis Brandeis's famous formulation for the right to privacy; (2) limited access to the self - the ability to shield oneself from unwanted access by others; (3) secrecy - the concealment of certain matters from others; (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 life.
In Part II, Solove contends that attempts to conceptualize privacy by locating the common denominator to identify all instances of privacy have thus far been unsatisfying. Wittgenstein's notion of family resemblance suggests that there are other ways to conceptualize beyond a search for the common denominator. Solove develops a pragmatic approach to conceptualizing privacy, seeking to understand privacy in terms of practices. Privacy is not reducible to a set of neutral conditions that apply to all matters we deem private. Rather, to say that a particular matter is private or to talk about privacy in the abstract is to make a generalization about particular practices. These practices are a product of history and culture. Therefore, we should explore what it means for something to be private contextually by looking at particular practices. Solove illustrates these points by looking historically at certain matters Western societies have long understood as private - the family, the body, and the home.
Next, Solove contends that privacy does not have a universal value that is the same across all contexts. The value of privacy in a particular context depends upon the social importance of the practice of which it is a part.
Finally, Solove examines some applications of his approach. With a series of examples, he illustrates how privacy law has fixed itself too firmly to certain conceptions of privacy, and, as a result, has lost flexibility in dealing with emerging privacy problems. He then demonstrates how his approach can help courts conceptualize privacy in ways better adapted to address emerging privacy problems.
Keywords: privacy, concept, Wittgenstein, pragmatism
JEL Classification: K10
Suggested Citation: Suggested Citation
Solove, Daniel J., Conceptualizing Privacy. California Law Review, Vol. 90, p. 1087, 2002. Available at SSRN: https://ssrn.com/abstract=313103