52 Pages Posted: 1 Mar 2021 Last revised: 12 Oct 2021
Date Written: February 27, 2021
In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy’s appeal has grown beyond those authors’ wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.
The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about Covid-19 contact tracing, police body cameras, marriage equality, facial recognition, access to contraception, loud neighbors, telemarketing calls, and on and on. This “pluralistic turn” has made privacy popular, but this popularity comes at a cost. Lacking precision, ubiquitous invocations of privacy tend to cloud rather than clarify, raising the temperature of academic and policy debates while generating little light.
This Article proposes a baseline definition of “privacy” to anchor legal discourse. The definition responds to privacy skeptics by identifying a core of pure privacy that can and should be protected. But it also pushes back on privacy pluralists by insisting on the need for precision. In a post-pandemic world, policymakers face powerful temptations to override longstanding privacy protections, and countervailing pressures to abandon lifesaving policies in the face of vigorous privacy objections. Precisely identifying what is at stake in these debates can help to clarify the difficult choices that will shape the future.
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