Since last semester ended (a semester where I had a phenomenal class of students, I should say), I have been considering how to start this semester's class, how to explain more clearly than last semester what, exactly, privacy means. In some ways, even for the most erudite scholars, the definition of a privacy violation is similar to Justice Potter Stewart's definition of pornography - "I know it when I see it." In fact, I have heard others go so far as to call privacy a glittering generality the likes of "freedom" and "democracy." In my quest to better explain to my peers, my students, and even myself what, exactly, privacy means, I began reading Dan Solove's Understanding Privacy. Solove is to privacy law what Lessig is to free culture - in fact, I use his book, The Future of Reputation, as the primary text for my class. I knew I could count on Dan.
Solove accurately points out that privacy is an umbrella that covers a wide breadth of related but disparate rights, including freedom of thought, solitude in one's home, freedom from surveillance, control over one's body, control over personal information, protection of reputation, and protection from searches and interrogations. The problem, he posits, is when we attempt to define privacy by abstracting commonalities from these entities to locate a common inheritance (sorry, that is the object-oriented programmer geek in me). Solove notes that it's not possible to abstract a commonality that is sufficiently abstract to cover all cases and with enough specificity to be of value practically in drafting policy.
Thus, Solove embraces Ludwig Wittgenstein's concept of "familial resemblance." He notes that these areas where we desire privacy draw from a pool of common traits the way children's physical features can resemble those of their parents - that is there is no single definition for what should be protected as private. As such, privacy should be considered a set of related values that share some familial resemblance. And, adopting a Pragmatist approach, privacy issues should be evaluated on a case-by-case basis, as conflicts with other values (free speech, security, transparency, etc.) arise.
While all of this sounds very abstract, I believe that it has helped me to get a better handle on why it is so difficult to define what privacy is. I'm pretty sure that I will be drawing on the information in Understanding Privacy frequently in class this semester. I'm looking forward to the start of classes next week and to meeting the students in my class. Hope everyone enjoyed the holidays, and happy new year!