wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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by civilized men.”360
It is particularly interesting that the Court invoked “the right to be
let alone,” which was W arren and Brandeis’s principle justifying the
privacy torts. The criminalization of the private possession of obscene
material, the Court’s reasoning suggests, necessitates governmental in
trusion into one’s home. T he Supreme Court noted that people have
“the right to be free from state inquiry into the contents of [their] li
brary.” Linking decisional interference with intrusion, it stressed that
“a State has no business telling a man, sitting alone in his own house,
what books he may read or what films he may watch.”361 Further cap
turing the relationship between the two categories, Robert Post con
tends that the intrusion tort protects “territories of the self,” which are
critical to remaining “an independent and autonomous person.”362
In Lawrence v. Texas, the Court further demonstrated the frequent
overlap between decisional interference and intrusion in striking down
a law that prohibited consensual homosexual sodomy. T he Court rea
soned that “adults may choose to enter upon this relationship in the
confines of their homes and their own private lives and still retain their
dignity as free persons.” The statute was unconstitutional because of
“its [unjustified] intrusion into the personal and private life of the indi
vidual.” Moreover, the C ourt stated:
Liberty protects the person from unwarranted government intru
sions into a dwelling or other private places. In our tradition the
State is not omnipresent in the home. And there are other spheres
of our lives and existence, outside the home, where the State
should not be a dominant presence. Freedom extends beyond spa
tial bounds.363
The Court thus linked decisional interference to intrusion.
Decisional interference also bears an indirect resemblance to black
mail in that laws restricting consensual private sexual behavior often
170
A T a
x
o
n
o
m y o f P
r i v a c y
give rise to blackmail. The Lawrence Court noted that in 1955, when
crafting the Model Penal Code, the American Law Institute recom
mended against criminalizing “consensual sexual relations conducted
in private” in part because “the statutes regulated private conduct not
harmful to others,” and because “the laws were arbitrarily enforced and
thus invited the danger of blackmail.”364 Indeed, as Angus McLaren re
counts, blackmail historically occurred in the shadow of laws that pun
ished consensual sexual activities in private.365
Privacy: A New Understanding
For quite a long time, the concept of privacy has been a source of cha
grin. Despite the profound importance and increasing prevalence of pri
vacy issues, efforts to conceptualize privacy have been plagued by a curse
of difficulties. Attempts to locate a common denominator for the mani
fold things that constitute privacy have proven unsatisfying. Concep
tions that attempt to locate the core or essence of privacy have been too
broad or too narrow. Despite many good insights, the philosophical
discourse about privacy has left a sense of emptiness and dissatisfaction.
Yet we need to conceptualize privacy because it affects the way we
craft legal solutions to particular problems. Even if we eschew attempts
to conceptualize privacy, we are relying in part on implicit understand
ings of privacy whenever we discuss it. Judges, legislators, policy
makers, and commentators all have some notion of privacy in mind
when they address privacy issues. T he way we conceptualize privacy is
of paramount importance for the information age because we are beset
with a number of complex privacy problems that cause great disruption
to numerous important activities of high social value.
Therefore, I have proposed a new way to conceptualize privacy.
Under my conception, we should understand privacy as a set of protec
tions against a plurality of distinct but related problems. These problems
are not related by a common denominator or core element. Instead,
each problem has elements in common with others, yet not necessarily
172
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i v
a
c
y : A N
e w U
n
d
e
r
s
t
a
n
d
i n
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the same element—they share family resemblances with each other.
W e label the whole cluster “privacy,” but this term is useful primarily
as a shorthand way of describing the cluster. Beyond that, it is more
fruitful to discuss and analyze each type of problem specifically.
I am not arguing that we must always avoid referring to privacy in
the abstract; sometimes it is more efficient to do so. Rather, such ab
stract references to privacy often fail to be useful when we need to con
ceptualize privacy to solve legal and policy' problems. By shifting the
focus to a plurality of related problems, we can better understand what
is at stake in particular situations. We can better recognize each situa
tion for what it is rather than conflating it with other situations.
I proposed a framework of four general types of privacy problems

by civilized men.”360

It is particularly interesting that the Court invoked “the right to be

let alone,” which was W arren and Brandeis’s principle justifying the

privacy torts. The criminalization of the private possession of obscene

material, the Court’s reasoning suggests, necessitates governmental in

trusion into one’s home. T he Supreme Court noted that people have

“the right to be free from state inquiry into the contents of [their] li

brary.” Linking decisional interference with intrusion, it stressed that

“a State has no business telling a man, sitting alone in his own house,

what books he may read or what films he may watch.”361 Further cap

turing the relationship between the two categories, Robert Post con

tends that the intrusion tort protects “territories of the self,” which are

critical to remaining “an independent and autonomous person.”362

In Lawrence v. Texas, the Court further demonstrated the frequent

overlap between decisional interference and intrusion in striking down

a law that prohibited consensual homosexual sodomy. T he Court rea

soned that “adults may choose to enter upon this relationship in the

confines of their homes and their own private lives and still retain their

dignity as free persons.” The statute was unconstitutional because of

“its [unjustified] intrusion into the personal and private life of the indi

vidual.” Moreover, the C ourt stated:

Liberty protects the person from unwarranted government intru

sions into a dwelling or other private places. In our tradition the

State is not omnipresent in the home. And there are other spheres

of our lives and existence, outside the home, where the State

should not be a dominant presence. Freedom extends beyond spa

tial bounds.363

The Court thus linked decisional interference to intrusion.

Decisional interference also bears an indirect resemblance to black

mail in that laws restricting consensual private sexual behavior often

170

A T a

x

o

n

o

m y o f P

r i v a c y

give rise to blackmail. The Lawrence Court noted that in 1955, when

crafting the Model Penal Code, the American Law Institute recom

mended against criminalizing “consensual sexual relations conducted

in private” in part because “the statutes regulated private conduct not

harmful to others,” and because “the laws were arbitrarily enforced and

thus invited the danger of blackmail.”364 Indeed, as Angus McLaren re

counts, blackmail historically occurred in the shadow of laws that pun

ished consensual sexual activities in private.365

Privacy: A New Understanding

For quite a long time, the concept of privacy has been a source of cha

grin. Despite the profound importance and increasing prevalence of pri

vacy issues, efforts to conceptualize privacy have been plagued by a curse

of difficulties. Attempts to locate a common denominator for the mani

fold things that constitute privacy have proven unsatisfying. Concep

tions that attempt to locate the core or essence of privacy have been too

broad or too narrow. Despite many good insights, the philosophical

discourse about privacy has left a sense of emptiness and dissatisfaction.

Yet we need to conceptualize privacy because it affects the way we

craft legal solutions to particular problems. Even if we eschew attempts

to conceptualize privacy, we are relying in part on implicit understand

ings of privacy whenever we discuss it. Judges, legislators, policy

makers, and commentators all have some notion of privacy in mind

when they address privacy issues. T he way we conceptualize privacy is

of paramount importance for the information age because we are beset

with a number of complex privacy problems that cause great disruption

to numerous important activities of high social value.

Therefore, I have proposed a new way to conceptualize privacy.

Under my conception, we should understand privacy as a set of protec

tions against a plurality of distinct but related problems. These problems

are not related by a common denominator or core element. Instead,

each problem has elements in common with others, yet not necessarily

172

P

r

i v

a

c

y : A N

e w U

n

d

e

r

s

t

a

n

d

i n

g

the same element—they share family resemblances with each other.

W e label the whole cluster “privacy,” but this term is useful primarily

as a shorthand way of describing the cluster. Beyond that, it is more

fruitful to discuss and analyze each type of problem specifically.

I am not arguing that we must always avoid referring to privacy in

the abstract; sometimes it is more efficient to do so. Rather, such ab

stract references to privacy often fail to be useful when we need to con

ceptualize privacy to solve legal and policy' problems. By shifting the

focus to a plurality of related problems, we can better understand what

is at stake in particular situations. We can better recognize each situa

tion for what it is rather than conflating it with other situations.

I proposed a framework of four general types of privacy problems