Against Privacy Essentialism

Abstract

What is “privacy”? This is a question that has long been vexing, but it is of profound importance, as the way privacy is conceptualized influences the outcome of cases and the way that laws and regulations are crafted, interpreted, and enforced. How privacy is understood thus makes a difference about how it is protected; and what is included and excluded from an understanding of privacy often affects whether it is even protected at all.

In this Article, Daniel Solove responds to Maria Angel and Ryan Calo’s critique of his taxonomic approach to understanding privacy, which conceptualizes privacy as a plurality of similar yet different things that share family resemblances to each other. In their article, Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy, 124 Columbia Law Review 507 (2024), Angel and Calo note that although “Solove’s taxonomic approach appears to have exerted an extraordinary influence on the shape and scope of contemporary privacy law scholarship,” this approach “fails to provide a useful framework for determining what constitutes a privacy problem and, as a consequence, has begun to disserve the community.” Angel and Calo recommend an approach to conceptualizing privacy that is best described as essentialist – a quest to define clear boundaries for privacy to demarcate it from other concepts and determine what is included and excluded; and the imperative to articulate a definitive definition of privacy with a proper authoritative foundation.

This Article argues against privacy essentialism. This way of thinking unproductively narrows thought, creates silos, leads to the overly narrow or overly broad failed attempts at conceptualizing privacy, stunts the development of the field, and results in constricted and impoverished policymaking. Privacy essentialism leads to a dead end, and it merely provides the illusion of certainty and clarity. More importantly, privacy essentialism often leads to law and policy that ignores important privacy problems and neglects serious privacy harms because they do not readily fit within the narrow boundaries of a particular conception of privacy. Privacy law and policy are better developed with the taxonomic approach, which is more inclusive, flexible, and evolving than the essentialist approach.

Keywords: privacy, Solove, theory of privacy, taxonomy of privacy, essentialism, pragmatism, Wittgenstein, definition of privacy, concept of privacy

JEL Classification: K00