A Reply to Ann Bartow’s Response to A Taxonomy of Privacy
I was excited to discover that Professor Ann Bartow (U. South Carolina School of Law) has written a response to my article, A Taxonomy of Privacy. In my article, I attempt to provide a framework for understanding the manifold different harms and problems that fall under the rubric of “privacy.” I endeavor to shift away from the rather vague label “privacy” and to prevent distinct harms and problems from being conflated or not recognized. I set forth a taxonomy of sixteen different yet related types of activities that create privacy problems: (1) surveillance; (2) interrogation; (3) aggregation; (4) identification; (5) insecurity; (6) secondary use; (7) exclusion; (8) breach of confidentiality; (9) disclosure; (10) exposure; (11) increased accessibility; (12) blackmail; (13) appropriation; (14) distortion; (15) intrusion; (16) decisional interference.
Bartow’s primary criticism is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy doesn’t have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”
Most privacy harms, however, lack dead bodies. Of course, there are exceptional cases such as the murders of Rebecca Shaeffer and Amy Boyer (both killed when their stalkers obtained their personal information to track them down). But the bottom line is that there isn’t a lot of death and gore in privacy law. One could certainly trot out some exceptional horrific cases such as Shaeffer and Boyer, but these are not typical of most privacy harms. Privacy is much more than just “feelings of unease,” as I tried to spell out in the paper, even if it doesn’t involve oozing blood, financial ruin, or outrageous humiliation. I believe that it is important not to exaggerate the harms by cherry picking the most egregious cases.
I think that Ann’s criticism stems from the fact that the article’s purpose is very different from what she was expecting. The purpose of the article is to catalog and describe the various types of privacy harms or problems. It is not to try to advocate for the protection of privacy. The article’s goal is to differentiate the different privacy harms and articulate some of the basic reasons why each type of privacy violation can be problematic. My purpose isn’t to try to spark the reader’s anger and concern over privacy violations. Instead, it is to clarify the concept of privacy, to disentangle conflated notions. It is to be balanced and thorough, to identify and classify.
I think that my concrete examples of privacy harms and problems are sufficiently compelling to justify protection even without blood and gore. But Ann’s response captures one of the great difficulties faced by those who desire greater protection of privacy — people respond more vigorously when faced with dramatic problems. Legislatures are often reactive, and they definitely are more prone to enact laws in response to a compelling event. As I’ve written in many posts, the drama and fear caused by terrorism has led to extensive attention to the problem — an “overreaction” as I’ve argued. Thus, one cannot deny the power of horror stories, and making the most compelling case for why particular privacy problems must be addressed is important work that should be done. But the purpose of A Taxonomy of Privacy is not to serve as a horror movie in sixteen parts. It is to identify the problems in as neutral a way as I can, something that isn’t easy for me to do since I’m generally quite pro privacy. So perhaps I should take Ann’s critique that my paper is too “analytic” and not infused with enough blood and death as an indication that I have succeeded, at least in some small part.