What is “privacy”? The concept of privacy has been elusive to define, but I developed a theory for understanding privacy about 20 years ago. Maria Angel and Ryan Calo recently published a formidable critique of my theory of privacy:
Maria P. Angel and Ryan Calo, Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy, 124 Colum. L. Rev. 507 (2024)
Their arguments are thoughtful and worth reckoning with, and I have just written a lengthy response, which I have entitled Against Privacy Essentialism. As I wrote in the response:
At the outset, I want to note that I welcome Angel and Calo’s critique. I am thrilled that they have so thoroughly engaged with my work, and I see their essay as an invitation to revisit the issue about how to conceptualize privacy. I thus write this essay with gratitude at having this opportunity to put my theory to the test, nearly twenty years after I started developing it, and seeing how it holds up today. Along the way, I will address other critiques of my pluralistic taxonomic approach by Professors Jeffrey Bellin, Eric Goldman, and David Pozen.
Here’s the abstract:
In this essay, Daniel Solove responds to Maria Angel and Ryan Calo’s critique of his theory of privacy. In their article, Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy, 124 Columbia Law Review 507 (2024), Angel and Calo note that although “Solove’s taxonomic approach appears to have exerted an extraordinary influence on the shape and scope of contemporary privacy law scholarship,” this approach “fails to provide a useful framework for determining what constitutes a privacy problem and, as a consequence, has begun to disserve the community.”
Solove argues that Angel and Calo wrongly view Solove’s conception of privacy as boundaryless and arbitrary, want the term “privacy” to do work it is not capable of, fail to show how the approach leads to bad consequences, and propose alternative approaches to conceptualizing privacy that fare worse on their own grounds of critique.
For the most part, Angel and Calo and several other critics of his theory view privacy in an essentialist manner. Their privacy essentialism involves their commitment to understanding privacy as having clear boundaries to demarcate it from other concepts and a definitive definition with a proper authoritative foundation.
In this essay, Solove argues against privacy essentialism. This way of thinking unproductively narrows thought, creates silos, leads to the overly narrow or overly broad failed attempts at conceptualizing privacy, stunts the development of the field, and results in constricted and impoverished policymaking. Solove argues that privacy essentialism leads to a dead end, and it merely provides the illusion of certainty and clarity.
For those of you interested in reading about my theory of privacy, it is developed in several works. The book is the most recent and complete version of the theory, and it incorporates, updates, and adds to the articles:
- UNDERSTANDING PRIVACY (Harvard University Press 2008)
- A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006)
- Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002)
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Professor Daniel J. Solove is a law professor at George Washington University Law School. Through his company, TeachPrivacy, he has created the largest library of computer-based privacy and data security training, with more than 150 courses. He is also the co-organizer of the Privacy + Security Forum events for privacy professionals.
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