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Understanding Privacy (Chapter One)
Daniel J. Solove
George Washington University Law School, dsolove@[Link]
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Understanding Privacy
solove
daniel j. solove
“Daniel Solove offers a unique, chal-
lenging account of how to think bet-
ter about—and of—privacy. No
Understanding Privacy
scholar in America is more commit-
ted to demystifying ‘the right to
privacy’.”
—Anita L. Allen, University
of Pennsylvania Law School Privacy is one of the most important
concepts of our time, yet it is also one of the
“Daniel Solove has had the patience most elusive. As rapidly changing technology
and insight to lay privacy bare. This makes information increasingly available,
is the most thorough and persuasive scholars, activists, and policymakers have
conceptualization of privacy written struggled to define privacy, with many con-
to date. Solove’s taxonomy of priva- ceding that the task is virtually impossible.
cy will become the standard tool for
Daniel J. Solove is Associate Professor of Law analyzing privacy problems.” In this concise and lucid book, Daniel J.
at George Washington University Law School. Solove offers a comprehensive overview of the
—Peter P. Swire, C. William O’Neill
Professor in Law and Judicial difficulties involved in discussions of privacy
Administration, Ohio State University and ultimately provides a provocative resolu-
tion. He argues that no single definition can
“One of the topic’s most prolific and be workable, but rather that there are multi-
thoughtful thinkers, Daniel Solove ple forms of privacy, related to one another
has written a clear and comprehen- by family resemblances. His theory bridges
sive analysis of privacy. In it, he cultural differences and addresses historical
harvard explains why it has been so hard to changes in views on privacy. Drawing on a
university conceptualize this thing called broad array of interdisciplinary sources,
press privacy and provides a pragmatic, Solove sets forth a framework for understand-
Cambridge, Massachusetts bottom-up understanding. This book ing privacy that provides clear, practical guid-
London, England will promote sharper thinking and ance for engaging with relevant issues.
analysis for the next generation of
privacy scholarship and policy.” Understanding Privacy will be an essential
introduction to long-standing debates and an
—Jerry Kang, University of California,
harvard
invaluable resource for crafting laws and poli-
Los Angeles School of Law
cies about surveillance, data mining, identity
theft, state involvement in reproductive and
Author photo: Claire Duggan marital decisions, and other pressing contem-
w w w. h u p . h a r v a r d . e d u porary matters concerning privacy.
Electronic copy available at: [Link]
Understanding Privacy
Daniel J. Solove
harvard university press
Cambridge, Massachusetts
London, England 2008
Electronic copy available at: [Link]
Copyright © 2008 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Solove, Daniel J., 1972–
Understanding privacy / Daniel J. Solove.
p. cm.
Includes bibliographical references (p. ) and index.
ISBN-13: 978-0-674-02772-5 (alk. paper)
ISBN-10: 0-674-02772-8 (alk. paper)
1. Privacy. I. Title.
BF637.P74S65 2008
155.9'2—dc22 2007032776
Electronic copy available at: [Link]
To my grandfather, Curtis
Contents
Preface ix
1 Privacy: A Concept in Disarray 1
Privacy: An Issue of Global Concern 2
Technology and the Rising Concern over Privacy 4
The Concept of Privacy 6
A New Theory of Privacy 8
2 Theories of Privacy and Their Shortcomings 12
Methods of Conceptualizing 13
Conceptions of Privacy 14
Can Privacy Be Conceptualized? 37
3 Reconstructing Privacy 39
Method 41
Generality 46
Variability 50
Focus 67
4 The Value of Privacy 78
The Virtues and Vices of Privacy 79
Theories of the Valuation of Privacy 84
The Social Value of Privacy 89
Privacy’s Pluralistic Value 98
viii Contents
5 A Taxonomy of Privacy 101
Information Collection 106
Information Processing 117
Information Dissemination 136
Invasion 161
6 Privacy: A New Understanding 171
The Nature of Privacy Problems 174
Privacy and Cultural Difference 183
The Benefits of a Pluralistic Conception of Privacy 187
The Future of Privacy 196
Notes 199
Index 247
Preface
For over a decade, the topic of privacy has had a hold on me. I was at-
tracted to privacy issues because of their immense complexity, philo-
sophical richness, and contemporary relevance. When I first began
exploring privacy issues, I sought to reach a definitive conclusion
about what “privacy” is, but after delving into the question, I was
humbled by it. I could not reach a satisfactory answer. This struggle
ultimately made me recognize that privacy is a plurality of different
things and that the quest for a singular essence of privacy leads to a
dead end. There is no overarching conception of privacy—it must be
mapped like terrain, by painstakingly studying the landscape. In my
initial years of studying privacy, I was not yet ready to do the map-
ping. The only way to do so would be to become fully immersed in
the issues.
Over the years, my understanding of privacy grew, and I now believe
that I am ready to set forth my theory of privacy. Although I feel that
my theory is mature enough to take form in this book, it is but a snap-
shot of one point in an ongoing evolutionary process. Theories are not
lifeless pristine abstractions but organic and dynamic beings. They are
meant to live, breathe, and grow. Throughout their lifetimes, they will,
it is hoped, be tested, doubted, criticized, amended, supported, and
reinterpreted. Theories, in short, are not meant to be the final word,
but a new chapter in an ongoing conversation.
x Preface
This book is the product of many years of conversations. Countless
people have helped me shape my ideas, and this book would not have
been possible without them. A project such as this—one that attempts
to make sense of the sprawling and complex concept of privacy—cannot
be created by one individual alone. Many people helped by providing
insightful comments on the manuscript or portions thereof. Deserving
special mention is Michael Sullivan, who has been a great friend and
teacher. His comments on this book have truly been indispensable.
Many others contributed greatly to all or part of this project: Michelle
Adams, Anita Allen, Francesca Bignami, Julie Cohen, Deven Desai,
Howard Erichson, Jim Freeman, Robert Gellman, Timothy Glynn,
Rachel Godsil, Stan Karas, Orin Kerr, Raymond Ku, Erik Lillquist,
Chip Lupu, Jon Michaels, Larry Mitchell, Marc Poirier, Robert Post,
Neil Richards, Michael Risinger, Peter Sand, Heidi Schooner, Paul
Schwartz, Richard St. John, Lior Strahilevitz, Charles Sullivan, Peter
Swire, Robert Tsai, Robert Tuttle, Sarah Waldeck, Richard Weisberg,
and James Whitman. I would also like to thank my research assistants,
Jessica Kahn, Romana Kaleem, Poornima Ravishankar, Erica Ruddy,
Sheerin Shahinpoor, John Spaccarotella, and Tiffany Stedman, for
their excellent work. Matthew Braun deftly assisted me in the library,
quickly tracking down any books and articles I needed. Additionally, I
benefited from helpful comments on parts of this book at workshops at
Washington University Law School, the International Association of
Privacy Professionals, and the American Philosophical Association Pa-
cific Division Annual Meeting. And lastly, Dean Fred Lawrence of the
George Washington University Law School graciously provided me
with all the resources I asked for.
Portions of this book were adapted from the following articles:
“Conceptualizing Privacy,” 90 California Law Review 1087 (2002);
“The Virtues of Knowing Less: Justifying Privacy Protections against
Disclosure,” 53 Duke Law Journal 967 (2003); and “A Taxonomy of
Privacy,” 154 University of Pennsylvania Law Review 477 (2006). In some
cases, I have used only selected passages from the articles; in many
cases, the text and argument of the articles have been significantly
reworked.
Understanding Privacy
! 1
Privacy: A Concept in Disarray
Privacy. U.S. Supreme Court Justice Louis Brandeis pronounced it
“the most comprehensive of rights and the right most valued by civi-
lized men.”1 Commentators have declared it “essential to democratic
government,” critical to “our ability to create and maintain different
sorts of social relationships with different people,” necessary for “per-
mitting and protecting an autonomous life,” and important for “emo-
tional and psychological tranquility.”2 It has been hailed as “an integral
part of our humanity,” the “heart of our liberty,” and “the beginning of
all freedom.”3
Privacy, however, is a concept in disarray. Nobody can articulate what
it means. Currently, privacy is a sweeping concept, encompassing
(among other things) freedom of thought, control over one’s body, soli-
tude in one’s home, control over personal information, freedom from
surveillance, protection of one’s reputation, and protection from
searches and interrogations. Philosophers, legal theorists, and jurists
have frequently lamented the great difficulty in reaching a satisfying
conception of privacy.4 Legal scholar Arthur Miller has declared that
privacy is “difficult to define because it is exasperatingly vague and
evanescent.”5 “On closer examination,” author Jonathan Franzen ob-
serves, “privacy proves to be the Cheshire cat of values: not much sub-
stance, but a very winning smile.”6 According to philosopher Julie In-
ness, the legal and philosophical discourse of privacy is in a state of
2 Privacy: A Concept in Disarray
“chaos.”7 Professor Hyman Gross asserts that “the concept of privacy is
infected with pernicious ambiguities.”8 Political scientist Colin Bennett
declares that “[a]ttempts to define the concept of ‘privacy’ have gener-
ally not met with any success.”9 According to legal theorist Robert Post,
“Privacy is a value so complex, so entangled in competing and contra-
dictory dimensions, so engorged with various and distinct meanings,
that I sometimes despair whether it can be usefully addressed at all.”10
Widespread discontent over conceptualizing privacy persists even
though privacy is an essential issue for freedom and democracy. To
begin to solve some of the problems of privacy, we must develop an ap-
proach to conceptualizing privacy to guide policymaking and legal in-
terpretation. Although a large body of law pertains to privacy, it thus
far has suffered numerous failures and difficulties in resolving privacy
problems. Judges, politicians, businesspeople, government officials,
and scholars have often failed to adequately conceptualize the prob-
lems that privacy law is asked to redress. Privacy problems are often
not well articulated, and as a result, we frequently lack a compelling ac-
count of what is at stake when privacy is threatened and what precisely
the law must do to solve these problems. The difficulty in articulating
what privacy is and why it is important has often made privacy law in-
effective and blind to the larger purposes it must serve. Thus the need
to conceptualize privacy is significant, but the discourse about concep-
tualizing privacy remains deeply dissatisfying.
In this book, I aim to bring clarity to privacy’s current conceptual
muddle. I develop a new understanding of privacy that strives to ac-
count for privacy’s breadth and complexities without dissipating into
vagueness. I endeavor to set forth a theory of privacy that will guide
our understanding of privacy issues and the crafting of effective laws
and policies to address them.
Privacy: An Issue of Global Concern
Privacy is an issue of profound importance around the world. In nearly
every nation, numerous statutes, constitutional rights, and judicial de-
cisions seek to protect privacy. In the constitutional law of countries
around the globe, privacy is enshrined as a fundamental right. Al-
though the U.S. Constitution does not explicitly mention the word
“privacy,” it safeguards the sanctity of the home and the confidentiality
Privacy: A Concept in Disarray 3
of communications from government intrusion. The Supreme Court
has concluded that the Fourth Amendment protects against government
searches whenever a person has a “reasonable expectation of privacy.”11
Additionally, the Supreme Court has held that the Constitution pre-
serves a “zone of privacy” encompassing decisions people make about
their sexual conduct, birth control, and health, as well as protects their
personal information against unwarranted disclosures by the govern-
ment.12 Many states explicitly protect privacy in their constitutions.13
Beyond the United States, the vast majority of nations protect pri-
vacy in their constitutions. For example, Brazil proclaims that “the pri-
vacy, private life, honor and image of people are inviolable”; South
Africa declares that “[e]veryone has the right to privacy”; and South
Korea announces that “the privacy of no citizen shall be infringed.”14
When privacy is not directly mentioned in constitutions, the courts of
many countries have recognized implicit constitutional rights to pri-
vacy, such as Canada, France, Germany, Japan, and India.15
In addition, thousands of laws protect privacy around the world.
Multinational privacy guidelines, directives, and frameworks have in-
fluenced the passage of privacy laws in a vast number of nations. In
1980, the Organization for Economic Cooperation and Development
(OECD) issued its Privacy Guidelines.16 In 1995, the European
Union’s Directive on Data Protection specified fundamental principles
for privacy protection in Europe.17 The Asia-Pacific Economic Coop-
eration (APEC), with over twenty member nations, set forth a Privacy
Framework in 2004.18 Numerous countries have enacted extensive pri-
vacy protections, such as Canada’s Personal Information Protection
and Electronic Documents Act of 2000, Japan’s Personal Information
Protection Law of 2003, Australia’s Privacy Act of 1988, and Ar-
gentina’s Law for the Protection of Personal Data of 2000, to name just
a few. In the United States, hundreds of laws at state and federal levels
protect privacy. Courts in most states recognize four torts to remedy
privacy wrongs.19 Since 1970, the U.S. Congress has passed several
dozen statutes to protect the privacy of government records, student
records, financial information, electronic communications, video
rental data, and drivers’ records, among other things.20
Furthermore, privacy is recognized as a fundamental human right.
According to the United Nations Universal Declaration of Human
Rights of 1948, “No one shall be subjected to arbitrary interference
4 Privacy: A Concept in Disarray
with his privacy, family, home or correspondence, nor to attacks upon
his honor and reputation.”21 The European Convention of Human
Rights of 1950 provides that “[e]veryone has the right to respect for his
private and family life, his home and his correspondence.”22 Thus there
appears to be worldwide consensus about the importance of privacy
and the need for its protection.
Beyond this outer layer of consensus, however, lurks an underworld
of confusion. What exactly is privacy? Why is it worth protecting?
How valuable is it? Legal protections of privacy depend upon a con-
ception of privacy that informs what matters are protected and the
nature and scope of the particular protections employed, but this un-
derlying conception of privacy is often poorly theorized and rarely
examined.
Technology and the Rising Concern over Privacy
Since antiquity, people in nearly all societies have debated issues of pri-
vacy, ranging from gossip to eavesdropping to surveillance. The devel-
opment of new technologies kept concern about privacy smoldering
for centuries, but the profound proliferation of new information tech-
nologies during the twentieth century—especially the rise of the
computer—made privacy erupt into a frontline issue around the world.
Starting in the 1960s, the topic of privacy received steadily increasing
attention.23 The discourse has ranged from popular writers to journal-
ists to experts in law, philosophy, psychology, sociology, literature, eco-
nomics, and countless other fields. In 1964, journalist Vance Packard
declared in his best-selling book The Naked Society that privacy was rap-
idly “evaporating.”24 That same year, in another best seller, The Privacy
Invaders, author Myron Brenton declared that “we stand on the
threshold of what might be called the Age of the Goldfish Bowl.” He
asked, “A couple of generations hence, will some automated society
look upon privacy with the same air of amused nostalgia we now re-
serve for, say, elaborate eighteenth-century drawing room manners?”25
In his 1967 book Privacy and Freedom, Professor Alan Westin noted “a
deep concern over the preservation of privacy under the new pressures
from surveillance technology.”26 Psychologist Bruno Bettelheim ob-
served in 1968, “Everywhere one turns these days it seems that the
right to privacy is constantly under assault.”27
Privacy: A Concept in Disarray 5
Today, the concern remains largely the same. Philosopher Thomas
Nagel notes that there has been “a disastrous erosion of the precious but
fragile conventions of personal privacy in the United States over the past
ten or twenty years.”28 Countless commentators have declared that pri-
vacy is “under siege” and “attack”; that it is in “peril,” “distress,” or
“danger”; that it is “eroding,” “evaporating,” “dying,” “shrinking,” “slip-
ping away,” “diminishing,” or “vanishing”; and that it is “lost” or
“dead.”29 Legions of books and articles have warned of the “destruction,”
“death,” or “end” of privacy.30 As Professor Deborah Nelson has put it,
“Privacy, it seems, is not simply dead. It is dying over and over again.”31
But not everyone is concerned. Some argue that despite what people
say, their actions demonstrate that they really do not want privacy at all.
Jonathan Franzen notes, “The panic about privacy has all the finger-
pointing and paranoia of a good old American scare, but it’s missing one
vital ingredient: a genuinely alarmed public. Americans care about pri-
vacy mainly in the abstract.”32 Although polls indicate that people care
deeply about privacy, people routinely give out their personal informa-
tion and willingly reveal intimate details about their lives on the In-
ternet. Law professor Eric Goldman points out that people’s “stated
privacy concerns diverge from what [they] do.”33 Canadian scholar
Calvin Gotlieb declares that “most people, when other interests are at
stake, do not care enough about privacy to value it.”34
Others contend that privacy can be socially detrimental. According
to law professor Richard Epstein, privacy is “a plea for the right to mis-
represent one’s self to the rest of the world.”35 Judge Richard Posner
views privacy as giving individuals “power to conceal information
about themselves that others might use to [the individuals’] disadvan-
tage.”36 Legal scholar Fred Cate declares that privacy is “an antisocial
construct . . . [that] conflicts with other important values within the so-
ciety, such as society’s interest in facilitating free expression, preventing
and punishing crime, protecting private property, and conducting gov-
ernment operations efficiently.”37
Thus privacy is a fundamental right, essential for freedom, democracy,
psychological well-being, individuality, and creativity. It is proclaimed
inviolable but decried as detrimental, antisocial, and even pathological.
Some claim that privacy is nearing extinction; others argue that the
threat to privacy is illusory.38 It seems as though everybody is talking
about “privacy,” but it is not clear exactly what they are talking about.
6 Privacy: A Concept in Disarray
The Concept of Privacy
Privacy violations involve a variety of types of harmful or problematic
activities. Consider the following examples of activities typically re-
ferred to as privacy violations:
• A newspaper reports the name of a rape victim.39
• Reporters deceitfully gain entry to a person’s home and secretly
photograph and record him.40
• New X-ray devices can see through people’s clothing, amounting to
what some call a “virtual strip-search.”41
• The government uses a thermal sensor device to detect heat
patterns in a person’s home.42
• A company markets a list of five million elderly incontinent
women.43
• Despite promising not to sell its members’ personal information to
others, a company does so anyway.44
Although these violations are clearly not the same, courts and policy-
makers frequently have a singular view of privacy in mind when they
assess whether an activity violates privacy. As a result, they either con-
flate distinct privacy problems despite significant differences or fail to
recognize a problem entirely. In short, privacy problems are frequently
misconstrued or inconsistently recognized in the law.
Merely being more contextual about privacy, however, will not be
sufficient to develop a fruitful understanding of privacy. In author
Jorge Luis Borges’s illuminating parable “Everything and Nothing,” a
gifted playwright creates breathtaking works of literature, populated
with an unforgettable legion of characters, one after the other imbued
with a unique, unforgettable personality. Despite his spectacular feats
of imagination, the playwright lives a life of despair. He can dream up a
multitude of characters—become them, think like them, understand
the depths of their souls—yet he himself has no core, no way to under-
stand himself, no way to define who he is. His gift of assuming so many
different personalities has left him with no identity of his own. At the
end of the parable, before he dies, the playwright communicates his de-
spair to God:
Privacy: A Concept in Disarray 7
“I who have been so many men in vain want to be one and my-
self.” The voice of the Lord answered from a whirlwind: “Neither
am I anyone; I have dreamt the world as you dreamt your work,
my Shakespeare, and among the forms in my dream are you, who
like myself are many and no one.”45
Privacy seems to encompass everything, and therefore it appears to be
nothing in itself. One commentator observed:
It is apparent that the word “privacy” has proven to be a powerful
rhetorical battle cry in a plethora of unrelated contexts. . . . Like
the emotive word “freedom,” “privacy” means so many different
things to so many different people that it has lost any precise legal
connotation that it might once have had.46
Legal scholar Lillian BeVier writes, “Privacy is a chameleon-like word,
used denotatively to designate a wide range of wildly disparate
interests—from confidentiality of personal information to reproduc-
tive autonomy—and connotatively to generate goodwill on behalf of
whatever interest is being asserted in its name.”47 Other commentators
have lamented that privacy is “protean” and suffers from “an embar-
rassment of meanings.”48 “Perhaps the most striking thing about the
right to privacy,” philosopher Judith Jarvis Thomson has observed, “is
that nobody seems to have any clear idea what it is.”49
Often, privacy problems are merely stated in knee-jerk form: “That
violates my privacy!” When we contemplate an invasion of privacy—
such as having our personal information gathered by companies in
databases—we instinctively recoil. Many discussions of privacy appeal
to people’s fears and anxieties. Commentators, however, often fail to
translate those instincts into a reasoned, well-articulated account of
why privacy problems are harmful. When people claim that privacy
should be protected, it is unclear precisely what they mean. This lack
of clarity creates difficulty when making policy or resolving a case be-
cause lawmakers and judges cannot easily articulate the privacy harm.
The interests on the other side—free speech, efficient consumer trans-
actions, and security—are often much more readily articulated. Courts
and policymakers frequently struggle in recognizing privacy interests,
and when this occurs, cases are dismissed or laws are not passed. The
8 Privacy: A Concept in Disarray
result is that privacy is not balanced against countervailing interests.
For example, in England, discontent over defining privacy led the
Younger Committee on Privacy to recommend in 1972 against recog-
nizing a right to privacy, as was proposed in legislation at the time. The
major difficulty in enacting a statutory protection of privacy, the com-
mittee’s report declared, is the “lack of any clear and generally agreed
definition of what privacy itself is.” Courts would struggle in dealing
with “so ill-defined and unstable a concept.”50 As a result, the legisla-
tion failed to pass.
Despite the wide-ranging body of law that addresses privacy issues
today, commentators often lament the law’s inability to adequately pro-
tect privacy.51 Moreover, abstract incantations of “privacy” are not nu-
anced enough to capture the problems involved. In the United States,
for example, the 9/11 Commission Report recommended that as govern-
ment agencies engage in greater information sharing with each other
and with businesses, they should “safeguard the privacy of individuals
about whom information is shared.”52 But what does safeguarding “pri-
vacy” mean? Without an understanding of what the privacy problems
are, privacy cannot be addressed in a meaningful way.
A New Theory of Privacy
There is a great need to understand privacy in a clear and comprehen-
sive manner. In this book, I set forth a new theory of privacy. I begin in
Chapter 2 by critiquing the existing attempts to conceptualize privacy
by a wide array of jurists, legal scholars, philosophers, psychologists,
and sociologists. In examining these theories of privacy, I survey the
criticisms of various scholars regarding each other’s conceptions of pri-
vacy and suggest a number of my own criticisms. Almost all the criti-
cisms boil down to claims that the theories are too narrow, too broad,
or too vague. More generally, many existing theories of privacy view it
as a unitary concept with a uniform value that is unvarying across
different situations. I contend that with a few exceptions, traditional
accounts of privacy seek to conceptualize it in terms of necessary and
sufficient conditions. In other words, most theorists attempt to define
privacy by isolating a common denominator in all instances of privacy.
I argue that the attempt to locate the “essential” or “core” characteris-
tics of privacy has led to failure.
Privacy: A Concept in Disarray 9
In Chapter 3, I develop an alternative approach to conceptualizing
privacy. There are four dimensions to my approach: (1) method, (2)
generality, (3) variability, and (4) focus. Regarding method, I suggest
abandoning the traditional way of conceptualizing privacy and instead
understanding it with Ludwig Wittgenstein’s notion of “family resem-
blances.” Wittgenstein suggests that certain concepts might not have a
single common characteristic; rather, they draw from a common pool
of similar elements.53 Privacy, therefore, consists of many different yet
related things.
In terms of generality, I argue that privacy should be conceptualized
from the bottom up rather than the top down, from particular contexts
rather than in the abstract. All conceptions must exist at some level of
generality, however, so my theory generalizes beyond the myriad of
specific contexts.
Regarding variability, a workable theory of privacy should account
for the differing attitudes toward privacy across many cultures. It
should recognize that notions about what information or matters are
private have evolved throughout history. A theory of privacy, however,
should avoid being too variable and contingent, or else it will not have
lasting or widespread usefulness.
Finally, an approach to conceptualizing privacy must have a focus. It
needs to unravel the complexities of privacy in a consistent manner;
otherwise it merely picks at privacy from many angles, becoming a dif-
fuse and discordant mess. Following philosopher John Dewey’s view
that philosophical inquiry should begin as a response to dealing with
life’s problems and difficulties, I argue that the focal point should be on
privacy problems.54 When we protect privacy, we protect against disrup-
tions to certain activities. A privacy invasion interferes with the in-
tegrity of certain activities and even destroys or inhibits some activities.
Instead of attempting to locate the common denominator of these ac-
tivities, we should conceptualize privacy by focusing on the specific
types of disruption.
Therefore, my approach to conceptualizing privacy understands it
pluralistically rather than as having a unitary common denominator. In
focusing on privacy problems, my approach seeks to be contextual
without being overly tied to specific contexts, flexible enough to ac-
commodate changing attitudes toward privacy, yet firm enough to re-
main stable and useful.
10 Privacy: A Concept in Disarray
In Chapter 4, I contend that the value of privacy must be deter-
mined on the basis of its importance to society, not in terms of indi-
vidual rights. Moreover, privacy does not have a universal value that
is the same across all contexts. The value of privacy in a particular
context depends upon the social importance of the activities that it
facilitates.
In Chapter 5, having laid out the general groundwork for what needs
to be done to develop a theory of privacy, I propose a taxonomy of
privacy—a framework for understanding privacy in a pluralistic and
contextual manner. The taxonomy is grounded in the different kinds of
activities that impinge upon privacy. I endeavor to shift the focus away
from the vague term “privacy” and toward the specific activities that
pose privacy problems. Additionally, the taxonomy is an attempt to
identify and understand the different kinds of socially recognized pri-
vacy violations, one that I hope will enable courts and policymakers to
better balance privacy against countervailing interests. Ultimately, the
purpose of this taxonomy is to aid the development of the body of law
that addresses privacy.
The taxonomy consists of four principal groups of activities: (1)
information collection, (2) information processing, (3) information dis-
semination, and (4) invasion. Each group encompasses a variety of ac-
tivities that can create privacy problems. The taxonomy is as follows:
1. Information collection
Surveillance
Interrogation
2. Information processing
Aggregation
Identification
Insecurity
Secondary use
Exclusion
3. Information dissemination
Breach of confidentiality
Disclosure
Exposure
Increased accessibility
Blackmail
Privacy: A Concept in Disarray 11
Appropriation
Distortion
4. Invasion
Intrusion
Decisional interference
In the chapter, I explain in depth each of these types of problems and
why they can be problematic.
In Chapter 6, I conclude by explaining the benefits of understanding
privacy with the taxonomic framework I have developed. It is my hope
that the theory of privacy set forth in this book will clear the fog of
confusion that often envelops the concept of privacy. A lucid, compre-
hensive, and concrete understanding of privacy will aid the creation of
law and policy to address privacy issues. Far too often, the effective res-
olution of privacy issues gets lost in navigating the conceptual
labyrinth of privacy. This book endeavors to guide us in understanding
this bewildering terrain.
Reproduced electronically by permission of the publisher from
UNDERSTANDING PRIVACY by Daniel J. Solove, pp. 1-11,
Cambridge, Mass.: Harvard University Press, Copyright © 2008 by the
President and Fellows of Harvard College.
For more information about the book, and for links to purchase the
book from various online bookstores, please visit the book’s website:
[Link]