By Daniel J. Solove, Harvard University Press, Cambridge, Mass. 272 pages, $45
Thanks to the U.S. Supreme Court’s decision in Roe v. Wade, the right to privacy has become a political lightening rod for the courts and for the fraction of the public interested in what federal judges do. The resulting debate has distorted perspectives on judges, suggesting that the principal axis of distinction is between “strict constructionists” and “activists.” Inaccurate, unilluminating, and inane, this dichotomy does more harm than good.
But there is a secondary harm from Roe’s wake: It has distracted us from a set of other issues clustered under the term “privacy” that appear to have little to do with a woman’s right to reproductive choice, but that are increasingly important in light of recent technology changes – issues, for example, about our right to be free from intrusion from new forms of surveillance, or to manage data about us that is generated, kept, and used by governmental and private sources.
The National Security Agency’s terrorist surveillance program, whose illegality almost precipitated mass resignations in the upper echelons of the Justice Department, is only the most notorious of recent privacy-intruding government programs. Less noticed was the federal government’s arrangement with the Swift Corp., a fiscal transactional service, to obtain massive amounts of financial data. Set alongside the government’s new powers under the Patriot Act to issue “national security issues” and administrative subpoenas, and its long-standing authority to purchase commercial databases, post-9/11 developments mean that the government has an unprecedented ability to conduct “dataveillance” – the mapping of a person’s life through the electronic data trail he or she leaves behind.
A person’s interest in reproductive choice, though, seems to be quite distinct from the freedom from excessive data-aggregation by commercial entities. And both seem again distinct from the traditional torts of privacy largely inspired by the famous 1890 law review article by Samuel Warren and Louis Brandeis, a right against intrusive publications and defamations that Warren and Brandeis influentially characterized as “the right to be let alone . . . a general right to the immunity of the person, the right to one’s personality.”
Defamation, abortion rights, and anti-data-aggregation interests seem linked only to the abstract concepts of “liberty” or “autonomy.” Yet all are spoken of colloquially, and by lawyers, as “privacy” problems even though the individual interest at issue in each case is very different – sometimes physical, sometimes psychological – and the countervailing government or public interest utterly heterogeneous. Why then assume that the term “privacy” is anything but another example of the English language’s characteristic tendency to collapse together different ideas and concepts under the same roof, thereby sowing confusion and obfuscating analysis? And if “privacy” really encompasses different ideas, would it not be better to sift out those ideas and treat them separately – semantics be damned?
George Washington University Law School Associate Professor Daniel J. Solove agrees that widely divergent interests and ideas are to be found laboring under the term “privacy” in both language and the law. He draws, perhaps unnecessarily, on philosopher Ludwig Wittgenstein’s idea of a “family resemblance” that hitches together different referents under the same term to explain how “privacy” is used. Solove gives a confusing explanation of Wittgenstein’s idea by saying that the different meanings of privacy are related to each other in the same way that children of the same parents are related. Of course, such children do share one common feature: the provenance of their genetic material. By contrast, Wittgenstein emphasized that no one feature had to be shared by every member of the family for them to be linked by a resemblance.
One of Wittgenstein’s famous insights was that because a term can refer to a cluster of only partially related things that share concatenating features, that term can refer to wholly distinct things depending on context. Tell a child to play a game outside, he noted, and you do not expect her to find a loaded gun to play Russian roulette. Moreover, there is no reason we should be able to evaluate and understand Russian roulette with the same values and the same ideas as we evaluate and understand another game, say hide-and-seek. Correspondingly, there is no reason that we should stand to gain by studying reproductive health rights in the same terms as we discuss the right of publicity and the right to correct government data sets. Privacy may be one word, but its many meanings might be better treated separately.
The virtue of Solove’s short and crisply written volume, which is a pleasure to read, is its taxonomy of four genus and 16 species of interests subsumed under the term privacy. For neophytes to the privacy world, Solove’s elegant summary of the literature treating each of these different interests is illuminating. One consequence of this approach is to highlight how much the concept of privacy has changed with the advent of information technology that permits the aggregation and manipulation of data. It is almost as if, thanks to new data-management technologies, we each have a new shadow now composed of data held by governments and private entities. First-year law students now first learn about privacy as a legal concept by discussing it in their constitutional law courses (if talk radio has not tainted them already). Solove’s taxonomy suggests that this is to make an (albeit important) outlier into the central architectural feature of privacy analysis.
What the taxonomy cannot do, however, is to explain why all the ideas and interests subsumed under the privacy banner should be treated with the same method, or that they share common values. Solove critiques previous scholars of privacy for defining privacy around a central value being promoted (say, autonomy or intimacy). Reviewing the sprawl of Solove’s taxonomy, one of those scholars might legitimately respond that the effort to identify a cluster of problems in which a single value was paramount, and to provide an account of how those problems should be solved, has tremendous value.
Whether any scholar could bring unity and coherence to the packed assemblage Solove identifies is unclear. But Solove should be commended in his effort even to map the complex territory of contemporary privacy.
Aziz Huq is associate counsel at the Brennan Center for Justice at New York University School of Law.