Understanding Privacy.

• Author: Citron, Danielle Keats
• Position: Book review

UNDERSTANDING PRIVACY. By Daniel J. Solove. Cambridge and London: Harvard University Press. 2008. Pp. x, 257. Cloth, $45; paper, $19.95.

INTRODUCTION

Conceptualizing privacy has long been a contested endeavor. (1) Some scholars argue that privacy protects important interests. (2) Julie Cohen and Paul Schwartz, for example, view privacy as essential to autonomy and deliberative democracy. (3) Others are skeptical as to whether privacy vindicates interests worthy of discourse at all. (4) Judge Richard Posner, for instance, contends that privacy permits individuals to conceal "discreditable facts" about them to society's detriment. (5) At the heart of this dispute is privacy's protean nature: it means "so many different things to so many different people" (6) that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. (7) Without a framework with which to delineate its parameters, privacy remains a conceptual muddle.

This is a particularly dangerous proposition given the geometric growth of information technologies. Without a meaningful framework for understanding privacy and the various contexts in which privacy problems arise, decision makers will have great difficulty identifying, defining, and protecting against socially detrimental incursions on privacy. Indeed, we may soon find ourselves living in a world where internet service providers provide digital trails of our online activities to state and federal law enforcement; where government has access to our social-network profiles, photographs, and wall musings; where cell phone providers track our daily movements; where a vast network of public and private cameras record and analyze our daily activities with facial-recognition software to identify "threats"; and where employers track employees' movements with biometric data and radio-frequency identification. (8) One might say that we already live there. (9) As the founder of Sun Microsystems warned, "You have zero privacy anyway.... Get over it." (10)

Daniel J. Solove's newest book, Understanding Privacy, (11) seeks to reverse this course. Much as Samuel Warren and Louis Brandeis mapped the importance of privacy in the face of the changing technologies of their time, Solove has done the same (and then some) for ours. In a carefully crafted text, he illustrates the deficiencies of existing theories of privacy and then develops an alternative, pragmatic approach to mapping privacy's everchanging terrain.

Solove's nuanced understanding of privacy and its immense complexities is refreshing in its thoroughness, but one should not mistake comprehension for completion. Solove does not intend for his theory of privacy to be the last word on the topic; indeed, because new privacy problems arise every day, the best we can hope for is a trustworthy guide. In this respect, Solove's visionary pragmatism navigates us through the twenty-first century "Information Privacy Law Project" (12) and beyond.

Part I of our Review discusses the central premises of Understanding Privacy, with particular attention paid to Solove's pragmatic methodology and his taxonomy of privacy. We introduce his pluralistic approach to conceptualizing privacy, which urges decision makers to assess privacy problems in context, and we explore his view that meaningful choices about privacy depend on an appreciation of how privacy benefits society as a whole. We also describe how Solove's taxonomy aims to account for the variety of activities that threaten privacy. In Part II, we analyze the strengths of Solove's pragmatism by demonstrating its functionality and flexibility in the face of evolving challenges like government-run fusion centers and the government's use of social-media technologies to interact with the public. Part III contends that Solove's pragmatic approach to balancing privacy against competing interests might benefit from more detailed instruction to policymakers. In this regard, we offer several suggestions to ensure the framework's continued vitality.

1. PRIVACY'S PRAGMATIC PATH

   1. (Re)Conceptualizing Privacy

      Although privacy is protected by hundreds of statutes in the United States and thousands of laws worldwide, (13) in Solove's view, privacy is "a concept in disarray" (p. 1). While individuals seem to know instinctively when they have suffered an invasion of privacy, lawmakers and jurists are considerably less certain about these violations. Legislatures and courts frequently struggle to find a compelling account of privacy's importance and a framework to guide them in balancing privacy against other legally protected interests. All too often, according to Solove, commentators, policymakers, and judges resort to a singular notion of privacy to evaluate activities that, in fact, have significantly different privacy implications. The result is that some privacy problems that are quite distinct are conflated, while other privacy problems are not recognized at all.

      Solove recognizes the appeal of unitary theories of privacy, but he ultimately rejects them. Like many philosophers, legal scholars, and jurists before him, Solove acknowledges that he initially "sought to reach a definitive conclusion about what 'privacy' is" (p. ix). Solove realized, however, that "the quest for a singular essence of privacy leads to a dead end" (p. ix).

      As Solove explains, traditional methods of conceptualizing privacy, which attempt to locate a common set of necessary and sufficient elements that distinguish privacy from other categories, will always come up short. (14) If the core of privacy is defined too narrowly, important privacy problems are ignored; (15) if the core is defined too broadly, the conception lacks the precision required to provide useful guidance.

      According to Solove, an alternative to traditional methods of conceptualizing privacy is needed to understand privacy in a meaningful way. In lieu of existing, unitary theories of privacy, he offers a pluralistic vision, which views privacy as an "umbrella term that refers to a wide and disparate group of related things" (p. 45). He devotes the first half of his book to developing and defending this conceptualization of privacy, which he characterizes along four dimensions: method, generality, variability, and focus.

      Solove's method involves setting aside traditional approaches to conceptualizing privacy in favor of an approach grounded in philosopher Ludwig Wittgenstein's idea of family resemblances. (16) Wittgenstein employs the term "family resemblances" to explain that certain concepts do not have a central defining characteristic; rather, they draw from a pool of similar, and at times overlapping, "family" characteristics. (17) Solove contends that privacy is such a concept, the meaning of which cannot be reduced to any single thing because, in practice, it describes a cluster of related things (pp. 42-46). In adopting Wittgenstein's method, Solove suggests that we categorize "something as involving 'privacy' when it bears a resemblance to other things we classify in the same way" (p. 46). One benefit of such analogical reasoning, Solove argues, is that it reflects the way we actually talk about privacy; that is, as a family of interrelated yet distinct things (pp. 44-45).

      Because one of Solove's aims in conceptualizing privacy is to aid policymakers, his theory must operate with enough generality to have extensive applicability. At the same time, he must avoid the pitfalls of standard approaches to privacy that frame the concept too generally to resolve specific privacy issues. Solove's answer to this thorny problem is to conceptualize privacy from the bottom up, rather than the top down. Instead of beginning with an overarching, fixed, and abstract notion of privacy into which all privacy issues must fit (or be overlooked), Solove suggests that we start with "working hypotheses" about privacy that are created from, and constantly reshaped by, interaction with concrete situations (p. 49).

      If Solove's approach to the generality problem sounds reminiscent of his method, that is because the two are mutually reinforcing. His bottom-up theory is deeply informed by philosophical pragmatism, (18) which shares certain premises with Wittgenstein's idea of family resemblances. Like Wittgenstein, classical pragmatists reject the idea of broad universal truths. Instead, they emphasize context-specific information, which is always evolving. The resulting conceptual framework tends to be flexible rather than fixed and, like Wittgenstein's family resemblances, often reveals the extent to which facets of a concept are interrelated.

      If we conceptualize privacy by reasoning from concrete circumstances, then what counts as private will change over time, along with our values, culture, lifestyles, and technologies. For example, when Samuel Warren and Louis Brandeis wrote The Right to Privacy in 1891, they criticized the intrusiveness of penny-press journalism that reported on the social engagements of society members. (19) By 1977, the Second Restatement of Torts reflected a less stringent view of privacy, noting that a newspaper's publication of an accurate description of a private wedding, to which only family members and a few intimate friends were invited, would not amount to an invasion of privacy. (20)

      Rather than shunning privacy's contingent nature, however, Solove embraces it and incorporates a dimension of variability into his theory. For him, any workable conception of privacy must adapt to changing norms and attitudes. (21) By leaving room for future cultural and historical variability, Solove hopes to avoid a static theory of privacy that accounts only for present privacy problems.

      The challenge in creating a theory of privacy that is pluralistic, contextual, and contingent is determining how to infuse it with enough stability to remain useful to law and policy. Solove introduces the fourth dimension of his...