How should privacy be defined? A roadmap

Privacy is an essentially contested concept. It evades a clear definition and when it is defined, scholars do so inconsistently. So, what are we to do now with this fractured term? Ryan Hagemann suggests a bottom up approach. Instead of beginning from definitions, we should be building a folksonomy of privacy harms:

By recognizing those areas in which we have an interest in privacy, we can better formalize an understanding of when and how it should be prioritized in relation to other values. By differentiating the harms that can materialize when it is violated by government as opposed to private actors, we can more appropriately understand the costs and benefits in different situations.

Hagemann aims to route around definitional problems by exploring the spaces where our interests intersect with the concept of privacy, in our relations to government, to private firms, and to other people. It is a subtle but important shift in outlook that is worth exploring.

Hagemann’s colleague Will Wilkinson laid out the benefits of this kind of philosophical exercise, which comes to me via Paul Crider. Wilkinson traces it back to very beginnings of liberal thought, which takes a bit to wind up:

Thomas Reid, the Scottish Enlightenment philosopher, pointed out that there are two ways to construct an account of what it means to really know something, rather than just believing it to be true. The first way is to develop an abstract theory of knowledge—a general criterion that separates the wheat of knowledge from the chaff of mere opinion—and then see which of our opinions qualify as true knowledge. Reid noted that this method tends to lead to skepticism, because it’s hard, if not impossible, to definitively show that any of our opinions check off all the boxes these sort of general criteria tend to set out.

That’s why Descartes ends up in a pickle and Hume leaves us in a haze of uncertainty. It’s all a big mistake, Reid said, because the belief that I have hands, for example, is on much firmer ground than any abstract notions about the nature of true knowledge that I might dream up. If my theory implies that I don’t really know that I have hands, that’s a reason to reject the theory, not a reason to be skeptical about the existence of my appendages.

According to Reid, a better way to come up with a theory of knowledge is to make a list of the things we’re very sure that we really know. Then, we see if we can devise a coherent theory that explains how we know them.

The 20th century philosopher Roderick Chisholm called these two ways of theorizing about knowledge “methodism”—start with a general theory, apply it, and see what, if anything, counts as knowledge according to the theory—and “particularism”—start with an inventory of things that we’re sure we know and then build a theory of knowledge on top of it.

Hagemann is right to build privacy on the particularism of Wilkinson, Reid and Chisholm. Given the changing nature of technology, we should take a regular “inventory of things that we’re sure we know” about privacy and then build theories on top of it.

Indeed, privacy scholarship finds its genesis in this method. While many have gotten hung up on the rights talk in the “Right to Privacy”, Warren and Brandeis actually aim “to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.” The article looks to previous law to construct a principle for “recent inventions and business methods.” This is particularism applied to privacy.

Only a handful of court cases that are actually reviewed in the article, the most important of which is Marian Manola v. Stevens & Myers. Marian Manola was a classically trained comic opera prima donna that had a string of altercations with her company where Stevens was the manager. About a year before the case, the New York Times carried a story describing a dispute between Manola and another actor in the McCaull Opera Company. She refused to go on stage after the actor pushed her on stage and Benjamin Stevens, apparently “ignored her until she returned to her duty.” About a year later, Stevens set up the photographer Myers in a box, as a stunt to boost sales. Manola sued the both of them. Today, the case would be cited in the right to publicity literature.

Still, Warren and Brandeis were trying to survey the land of privacy harms and then build a principle on top of it.

Be it either particularism or methodism, these ways of constructing knowledge frame the moral ground, creating a field where privacy advocates and privacy scholars can converse. What unites these two groups, then, is their common rhetoric about the contours of  privacy harms. And so, what constitutes a harm is still the central question in privacy policy.