Turning Privacy Inside Out
Theoretical Inquiries in Law 20.1 (2019 Forthcoming)
22 Pages Posted: 2 May 2018
Date Written: April 12, 2018
The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect them. In terms of theory, turning privacy inside out entails focusing on the conditions that are needed to produce sufficiently private and privacy-valuing subjects. Institutionally, turning privacy inside out entails focusing on the design, production, and operational practices most likely to instantiate and preserve those conditions.
Keywords: Privacy, Surveillance, Privacy by Design, Notice and Choice, GDPR
JEL Classification: K19, K29, K39
Suggested Citation: Suggested Citation