Ryan M. Calo, A Hybrid Conception of Privacy Harm
Comment by: Siva Vaidhynathan
Workshop draft abstract:
What counts as a “privacy harm,” particularly? Today’s thought leaders offer two popular but widely disparate accounts. On one view—espoused by Richard Parker, Richard Posner, and many others—a privacy harm must involve the literal unwanted sensing of visual or other information by a human being. Although in respects attractive, this account could exclude everything from the notorious Panopticon (which works precisely because mere uncertainty of observation modifies behavior) to the bulk of contemporary data-mining.
Another leading view, however, may go too far: Dan Solove’s influential “taxonomy of privacy” admits of sixteen, loosely related subcategories of privacy-implicating conduct. These are selected on the basis of what practices any of the right sorts of authorities—“laws, cases, constitutions, guidelines, and other sources”—have chosen over the years to associate with the term “privacy.” Solove’s framework includes Jeremy Bentham’s design, but arguably covers a broad range of activities better described in terms of coercion or nuisance.
This essay proposes a third way to think about privacy harm that incorporates the most promising elements of two influential accounts. Specifically, the essay argues that privacy harm involves either (1) the unwanted perception of observation or (2) the use of information without the subject’s consent to justify an adverse action. This approach captures the intuition that privacy is basically about observation, but also embraces the many situations in which no actual observation by a person need occur in order to cause a privacy harm. The essay then walks through a series of thought experiments to defend its approach from anticipated critiques.