Understanding Privacy by Daniel Solove – Chapter One (May 2008

Privacy is a concept I’ve always had trouble wrapping my head around, and Daniel Solove can relate. In his paper Understanding Privacy, he begins by discussing the relevance of privacy to legislation, drawing on both implicit and explicit references to the Constitution. He extends these references to a global scale, taking into account varying cultural views on privacy. Furthermore, he examines how privacy legislation has evolved over time to address new challenges, particularly those related to technology, noting the linear relationship between the perceived erosion of privacy and the rise of computers in the 1960s.

Throughout the article, Solove cites various philosophers, jurists, and legal scholars. At one point, he writes, “Legal scholar Arthur Miller has declared that privacy is ‘difficult to define because it is exasperatingly vague and evanescent.’” Not being familiar with NYU Professor Arthur Miller, I initially assumed Solove was referencing the famous playwright Arthur Miller. Given the central role of privacy in Death of a Salesman—Willy Loman’s disillusionment and eventual suicide as a result of his secrets, such as his infidelity and financial troubles, being exposed by his wife and causing deep rifts with his son—I thought this interpretation was fitting. Especially considering the many references to protecting the privacy and sanctity of family life, including the United Nations Universal Declaration of Human Rights of 1948: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation.”

However, Solove introduces his inner thespian later, referencing Jorge Luis Borges’s parable “Everything and Nothing,” where a playwright reflects on the void in his own identity due to his gift for bringing myriad characters to life. Solove argues that privacy, with its many definitions and the vast array of issues stemming from it, similarly encompasses everything and nothing.

Solove’s central argument is that attempting to understand privacy as a singular, monolithic concept will ultimately lead to failure. I am intimately familiar with this failure, having spent hours scratching my head and going in circles over the many ways privacy is defined. I have even examined the Latin root of the word, privatus, meaning “to belong to oneself,” as one avenue of exploration. This idea—that privacy involves those intimate possessions belonging to oneself and not the state—suggests that in protecting privacy, we are also protecting those possessions.

Solove lays out several types of violations to illustrate his argument:

• A newspaper reports the name of a rape victim.39 –> Name
• Reporters deceitfully gain entry to a person’s home and secretly
  photograph and record him.40 –> Home
• New X-ray devices can see through people’s clothing, amounting to
  what some call a “virtual strip-search.”41 –> Body
• The government uses a thermal sensor device to detect heat
  patterns in a person’s home.42 –> Heat
• A company markets a list of five million elderly incontinent
  women.43 –> People (you belong to you)
• Despite promising not to sell its members’ personal information to
  others, a company does so anyway.44 –> Information

I’ve bolded what those possessions are in each particular case. However, I believe that Solove would find my view overly simplistic. If I weren’t such an Occam’s Razor enthusiast, I might even agree. Solove argues that these privacy violations are simply not the same, and he approaches the problem differently. As he states: “A theory of privacy, however, should avoid being too variable and contingent, or else it will not have lasting or widespread usefulness.”

Solove doubles down on his argument, asserting that understanding privacy requires distinguishing between specific types of privacy disruptions and evaluating the value of privacy based on its importance to society. To achieve this, he presents a taxonomy of privacy.

1. Information collection
   Surveillance
   Interrogation
2. Information processing
   Aggregation
   Identification
   Insecurity
   Secondary use
   Exclusion
3. Information dissemination
   Breach of confidentiality
   Disclosure
   Exposure
   Increased accessibility
   Blackmail
   Appropriation
   Distortion
4. Invasion
   Intrusion
   Decisional interference

Daniel J. Solove is a Professor of Intellectual Property and Technology Law, George Washington University Law School and President & CEO of TeachPrivacy. His taxonomy provides a nuanced framework for understanding privacy by addressing these distinct categories. It rejects oversimplified definitions, like the one I initially adopted, in favor of a more systematic and precise approach. I look forward to analyzing more of his work in the future.

Understanding Privacy by Daniel Solove – Chapter One (May 2008)