Wednesday, November 05, 2008

Daniel J. Solove: Understanding Privacy (review)

Author: Daniel J. Solove (an Associate Professor of Law at George Washington University Law School in Washington DC).
Title: Understanding Privacy.
Publication: Cambridge: Harvard University Press, 2008.
Description: ISBN 0-674-02772-8, 258 pages, hardcover. Good Amazon link.

I recall back in 1996 at the Libertarian Party Convention in Washington that we had a Sunday afternoon hotel room discussion on the face that the “right of privacy” is not explicitly mentioned in the Constitution anywhere. Potential presidential candidate Douglas Ohmen said something like, “It’s simple. Just word it, ‘The right to privacy shall not be infringed!’”

My gut reaction at that summer moment was that privacy is surely too complicated for such a simple phrase to cover it. In fact, in my first book, I proposed a “28th Amendment” to be called a Right to Privacy, Intimate Association, Life, and Pursuit of Happiness Amendment", which, for the record, is easily found here.

I look back into my mind, to the 1980s during the AIDS crisis, when a notorious group called the “Dallas Doctors Against AIDS” was attacking the gay community; I remember a forum at some evangelical church where a right wing attorney got up and said “There is no such thing as a right to privacy.” I thought, this is ridiculous, how can that be?

In fact, I go back to my own William and Mary expulsion in the fall of 1961 for admitting “latent homosexuality” to the Dean of Men under pressure, followed by the long episode of “psychiatric treatment” that plays out in my mind today like a Clint Eastwood-directed movie. And then those questions on Civil Service job application forms. “Sexual perversion” was a specific offense for which you could be fired (until 1973).

What was the big deal, I wondered, with my rational, post-teen brain? You’re talking about thoughtcrimes, and about things that are supposed to happen in private, between consenting adults. Isn’t this protected by a “right to privacy”? It seemed that the government, colleges, and employers would be very concerned about my supposed “private life” then. As late as 1965, Secretary of State Dean Rusk announced belligerently, “if we find homosexuals in our department, we discharge them.”

Then, fast forward ahead to the debate over gays in the military in 1993, right after Bill Clinton tried to lift the ban. Senator Sam Nunn screamed in Congress that soldiers “have no privacy” like you and I have. They don’t go home at night. That may be getting warm as to the formulation Dr. Solove is concerned about. Of course, those of us who wanted to lift the ban asserted that even soldiers have private lives off base and the military was interfering with it in a potentially unconstitutional manner, and setting a potentially bad example for everyone else. (Remember Barney Frank’s compromise, before Bill Clinton’s?)

After Stonewall in 1969, in fact, “privacy” and sometimes anonymity (definitely related) formed the main paradigm that justified “gay rights” and as the movement would develop in the 1970s. AIDS brought it out into the open, but it was in the 1990s that the whole paradigm shifted. Not just because of the military ban and gay marriage issues, but because now there was a searchable Internet, and people could promote themselves. “Privacy” became a more decision-control concept. People wanted to have their cake and eat it too. There was this new problem with the thermodynamics and entropy of privacy. Equality (aka the trade dress of the Human Rights Campaign) became the new mantra – and I suspect that law professors (perhaps Dr. Solove himself) are crafting new “university press” books on “equal protection” because it is, like privacy, a shape-shifting concept. But, coming back to privacy, we have to reiterate what Dr. Solove says on p. 1, "Nobody can articulate what it means."

Having traced through all my personal reactions to this book, I now have to get back to Dr. Solove’s basic thesis. Note that the title of his book "Understanding Privacy" is itself terse; there is no subtitle to "explain further" to the casual human browser. The book is relatively short, and (coming from Harvard) expensive. Much of it is written in the passive voice, very impersonally. I love the black-and-white cover picture from the Very Large Array in New Mexico (from the Carl Sagan film "Contact"). Privacy is not a concept that can be decomposed into simple factors, like a polynomial on an algebra test. It is rather a network of related public goods that share common elements, but in a networked rather than hierarchal model, somewhat following the model of philosopher Ludwig Wittgenstein. Privacy needs to be developed in a “bottom up” fashion, not in the “top down testing” model so familiar to systems analysts in the information technology world (like me).

The book is divided into six chapters: “A Concept in Disarray”, “Theories of Privacy…” “Reconstructing Privacy”, “The Value of Privacy”, “A Taxonomy of Privacy” and “A New Understanding.” Solove points out that, over centuries, philosophers or ethicists have tended to consider privacy as antithetical to public or community good. Even today there is real tension between personal “privacy” and “free speech” (and probably free entry and free distribution). Sometimes there is a real ethical controversy between the public's need to know how some important historical event happened, and the sensitive and subjective reputational exposures of the parties involved in the event, which those parties might have considered "private" in nature. But Solove takes this further, by describing living conditions in Europe a couple centuries ago and in colonial America, where families could not afford the idea of “privacy” as modern people expect it. Intimate relations and bodily functions took place within the sight of others, especially within the extended family or community. There was no concept that sexual acts could really be “private.”

Solove also explains how the family was at one time an instrument of socialization, not of expressing “love” even in a committed marriage. The head of the family was privileged to control the moral compass of the lives of other family members, even adults. That was intrinsically within the scope of the family and marriage as an institution. In fact, I think the loss of this influence (from the family) actually drives a lot of the gay marriage debate today. The individual was responsible to his family even if her or she did not have his or her own children. In fact, you had to get married and have your own children to have full rights as an adult. (This point seems very relevant to our growing eldercare problem.) But it is not so much a matter of privacy or equality as an idea that the “family” was supposed to be the major source of social identity for everyone, removing the need to be judged by a global scale. You "lived" for and through your family, not just for yourself or your own "identity" (all the more so if you didn't marry and procreate yourself). That has all changed, but not for everyone.

At this point, it’s important to note that the journalism and publishing law world is familiar with “invasion of privacy” from a somewhat compressed viewpoint as expressed in the Restatement of Torts, here with specific focus on concepts like unreasonable intrusion, misappropriate, or false light.

As the book progresses, Solove, particularly in his “taxonomy” chapter, gets into the various instantiations of what we think of as “privacy” in the modern world. These can expand greatly upon the usual concept defined from the “Restatement” in legal handbooks. There is an enormous panoply of issues and problems, ranging from “online reputation” associated with postings made by others on social networking sites and blogs, to the risk of identity theft from data loss by major companies, to home security threats that exist for some people because data brokerage companies sell reports cheaply helping others find out where someone lives. A person may publish facts about himself (as in a searchable blog or social networking profile) in order to support a political argument (particularly in areas like gay rights) and cause other family members to feel (indirectly) intruded upon or perhaps even endangered. All of these problems involve weighing various public goods, responsibilities, and downstream liabilities. They could lead to the rewriting of some of the common torts manuals, like the Restatement, some day. Indeed, in other countries (which Solove often details) the concept privacy protection is often more expansive.

In the taxonomy, Solove does cover a number of the problems that occur. For example, “aggregation” (the “non Euclidean” triangle inequality, perhaps in reverse: “The whole is greater than the sum of its parts”) is a concept where pieces of information about someone accumulate (often with the help of search engines) and potentially could produce a misleading picture of the person. The problem (when you combine it with Solove’s concept of “disclosure”) is exacerbated by the fact that now, others can publish seemingly innocuous information about the person that stays searchable forever. (This gets us to the “reputation defense” problem of Solove’s earlier book; but we have to add that “reputation” is such a subjective concept and lives in the eyes of the beholder.) The archetypal issue in gay rights regarding privacy – sodomy laws, finally overturned in 2003 with Lawrence v. Texas (but not in 1986 with Bowers v. Hardwick) – is a prime example of what Solove terms “decisional interference,” the last term in his taxonomy.

Whenever I watch CWTV's "Smallville" program and see the young adult Clark Kent agonize over protecting his "identity" and protecting others from the hazards of learning his "identity" (as an extraterrestrial), I think, law professors will have real fun with the ethical dilemmas in the show. It reminds me of "don't ask don't tell". There's plenty of "privacy invasion" in the mobile blogs of CW's "Gossip Girl", too.

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