What is Privacy? That's the Wrong Question
88 The University of Chicago Law Review 1677 (2021)
12 Pages Posted: 29 Nov 2021
Date Written: November 24, 2021
Privacy has never had a precise meaning. But in the early 1900s, the concept took on new life as a term of art in legal frameworks. The result has been a bit of a mess, as no singular definition has been adequate for all purposes. Daniel Solove, perhaps the most influential privacy scholar of our day, wrote at the turn of the millennium that privacy was “a concept in disarray.”
In this short essay reflecting upon Solove’s impact on the modern study of information privacy, I argue that the chaos and futility of competing conceptualizations of privacy is why Solove’s research on privacy has been so important. Solove has reshaped the entire narrative around privacy by suggesting that we stop obsessing over what privacy is and start asking what privacy is for. His contributions have profoundly influenced the privacy debate by dispelling the notion that privacy is only important to people with “something to hide.” He cast doubt upon people's ability to engage in “privacy self-management.” He introduced new narratives for industry’s data processing efforts that are closer to a Kafkaesque byzantine bureaucratic nightmare than Orwellian dystopian surveillance. He helped usher in the algorithmic turn in privacy scholarship and enriched our understanding of the full spectrum of privacy harms. Perhaps most importantly, Solove’s work provides a structure that frees scholars and lawmakers of the burden of finding one, singular notion of privacy to rule them all.
Privacy is still a concept in disarray. But that’s okay. There is now too much data that is collected by too many different entities and used in too many different ways for any singular definition of privacy to be legally useful anyway. Daniel Solove’s work on understanding privacy has imposed order upon chaos, shifting our focus away from questions about what privacy is and toward the different problems we want our privacy rules to address and the specific values we want them to serve.
Keywords: privacy, data, surveillance, data protection, algorithms
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