Theoretical Inquiries in Law, Forthcoming
26 Pages Posted: 3 Dec 2018
Date Written: 2018
Alan Westin’s work Privacy and Freedom remains foundational to the field of privacy, and Westin is frequently cited for his definition of privacy as control over personal information. However, Westin’s full definition of privacy is much more complex than this statement, describing four states of privacy (solitude, intimacy, anonymity, and reserve) that one achieves through physical or psychological means. The “claim” of privacy involves negotiating a balance between a desire for disclosure and social participation and a desire for withdrawal into one of the “states” of privacy. Influencing this adjustment process are social norms (and surveillance to enforce social norms), environmental conditions, and the curiosity of others. In this Article, I draw upon this complexity in order to reread Westin’s definition of privacy as a claim of control over personal information and use this rereading to understand how the law should protect and promote privacy in the twenty-first century. I argue that the law should focus on securing meaningful privacy choices rather than on individual control over personal information. Meaningful choice requires that our informational infrastructure, and the social practices that it enables, make states of privacy available for choice along with the means of attaining them. To enable such meaningful individual choice, we need to shift our attention from a focus on individuals to a more systemic focus on our public norms and built infrastructure. Otherwise we risk protecting a narrow understanding of individual control, while ignoring a more general and systematic erosion of privacy.
Keywords: privacy, individual control, Westin, personal information
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