wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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serves, “T he development of protection for relational interests evi
dences a communitarian view of the role of tort law.. . . T he vision
being promoted is one of the responsible social interaction: a commit
m ent to the value of the permanency of relationships and to appro
priate treatm ent within those relationships.”10
American law recognizes relationship harms, although it does so in
consistently. In legal proceedings, evidentiary privileges restrict the
disclosure of communications between attorney and client, priest and
penitent, husband and wife, and psychotherapist and patient.11 Often
this information is highly relevant and probative. T he rationale for
protecting these relationships is the importance of fostering candid
Privacy: A New Undeiytanding
177
communication and preserving the relationships themselves. This jus
tification is rooted in society’s interests; it is not based solely on pre
venting individuals from suffering emotional distress.
Relationship harms are also implicated by information collection
and dissemination about the groups one associates with. In several
cases, the U.S. Supreme Court has held that the First Amendment re
stricts the interrogation of individuals about their membership in var
ious groups.12 T he Supreme Court has declared that there is a “vital re
lationship between freedom to associate and privacy in one’s
associations.” For members of dissident or unpopular groups, dis
closing their identities would subject them “to economic reprisal, loss
of employment, threat of physical coercion, and other manifestations
of public hostility.”15 Protection against these relationship harms stems
from the social value of preserving associations. As Alexis de Toc-
queville declared:
The most natural privilege of a man next to the right of acting for
himself, is that of combining his exertions with those of his fellow
creatures and of acting in common with them. T he right of asso
ciation therefore appears to be as almost inalienable in its nature
as the right of personal liberty. N o legislator can attack it without
impairing the foundations of society.14
Vulnerability Harms. Several of the problems discussed in the tax
onomy result in making people more vulnerable and less secure. Vul
nerability harms involve the creation of the risk that a person might be
harmed in the future. For example, the problem of insecurity results in
increasing people’s risk that a future harm will occur, such as being vic
timized by identity theft or fraud. Such risk-enhancing activities in
crease the chance that the individual will suffer physical, financial, rep
utational, or psychological harms.
In many ways, vulnerability harms are akin to environmental
harms.15 Vulnerability harms are often created not by singular egre
gious acts but by a gradual series of relatively m inor acts that add up
over time. In this way, some privacy problems resemble certain forms
of pollution. There is often no single wrongdoer; instead, this digital
pollution occurs through the combined activities of a multitude of in
stitutions, each with differing motives and aims.
178
P
r
i v a
c y : A N
e w U
n
d
e r
s t
a
n
d
i n
g
Many contemporary privacy problems are systemic in nature.
Information-processing problems frequently are the result of what I
call “architectures of vulnerability.”16 Architectures of vulnerability
consist of the designs or structures for the processing of personal infor
mation that make people vulnerable to a host of dangers. Information
economies often have structural flaws that create problems such as in
security. When inadequate security practices lead to personal data
leaks, they expose people to potential future harm. Architectures of
vulnerability result in people being worse off—they are akin to a dis
ease that weakens the immune system.
Chilling Effects. Some privacy problems create another kind of harm:
they inhibit people from engaging in certain activities. This land of
harm is often referred to as a “chilling effect.”1 Legal scholar Fred
erick Schauer defines it as follows: “A chilling effect occurs w hen indi
viduals seeking to engage in activity protected by the first amendment
are deterred from doing so by governmental regulation not specifically
directed at that protected activity.”18 Government monitoring of dissi
dent groups can make people less likely to attend political rallies or
criticize popular views. On a number of occasions, American courts
have recognized chilling effects as injuries. The chilling-effect doctrine
understands that First Amendment rights, such as free speech and free
association, can be inhibited indirectly, not just through direct legal re
strictions.19
The value of protecting against such chilling effects is not measured
simply in terms of the value to those particular individuals. Chilling ef
fects harm society because, among other things, they reduce the range
of viewpoints being expressed and limit the degree of freedom with
which to engage in political activity.
Power Imbalances. Many privacy problems result in power imbalances
that adversely affect social structure but do not result in direct harm to
specific individuals. The problem of exclusion, for example, often does
not cause psychological harm, but it puts people in a position of powr-
erlessness. Powrer imbalances can occur when a particular activity up
sets the balance of social or institutional powder in undesirable ways.
Sociologist Robert Merton notes, “ ‘Privacy’ is not merely a personal
predilection; it is an important functional requirement for the effective

serves, “T he development of protection for relational interests evi

dences a communitarian view of the role of tort law.. . . T he vision

being promoted is one of the responsible social interaction: a commit

m ent to the value of the permanency of relationships and to appro

priate treatm ent within those relationships.”10

American law recognizes relationship harms, although it does so in

consistently. In legal proceedings, evidentiary privileges restrict the

disclosure of communications between attorney and client, priest and

penitent, husband and wife, and psychotherapist and patient.11 Often

this information is highly relevant and probative. T he rationale for

protecting these relationships is the importance of fostering candid

Privacy: A New Undeiytanding

177

communication and preserving the relationships themselves. This jus

tification is rooted in society’s interests; it is not based solely on pre

venting individuals from suffering emotional distress.

Relationship harms are also implicated by information collection

and dissemination about the groups one associates with. In several

cases, the U.S. Supreme Court has held that the First Amendment re

stricts the interrogation of individuals about their membership in var

ious groups.12 T he Supreme Court has declared that there is a “vital re

lationship between freedom to associate and privacy in one’s

associations.” For members of dissident or unpopular groups, dis

closing their identities would subject them “to economic reprisal, loss

of employment, threat of physical coercion, and other manifestations

of public hostility.”15 Protection against these relationship harms stems

from the social value of preserving associations. As Alexis de Toc-

queville declared:

The most natural privilege of a man next to the right of acting for

himself, is that of combining his exertions with those of his fellow

creatures and of acting in common with them. T he right of asso

ciation therefore appears to be as almost inalienable in its nature

as the right of personal liberty. N o legislator can attack it without

impairing the foundations of society.14

Vulnerability Harms. Several of the problems discussed in the tax

onomy result in making people more vulnerable and less secure. Vul

nerability harms involve the creation of the risk that a person might be

harmed in the future. For example, the problem of insecurity results in

increasing people’s risk that a future harm will occur, such as being vic

timized by identity theft or fraud. Such risk-enhancing activities in

crease the chance that the individual will suffer physical, financial, rep

utational, or psychological harms.

In many ways, vulnerability harms are akin to environmental

harms.15 Vulnerability harms are often created not by singular egre

gious acts but by a gradual series of relatively m inor acts that add up

over time. In this way, some privacy problems resemble certain forms

of pollution. There is often no single wrongdoer; instead, this digital

pollution occurs through the combined activities of a multitude of in

stitutions, each with differing motives and aims.

178

P

r

i v a

c y : A N

e w U

n

d

e r

s t

a

n

d

i n

g

Many contemporary privacy problems are systemic in nature.

Information-processing problems frequently are the result of what I

call “architectures of vulnerability.”16 Architectures of vulnerability

consist of the designs or structures for the processing of personal infor

mation that make people vulnerable to a host of dangers. Information

economies often have structural flaws that create problems such as in

security. When inadequate security practices lead to personal data

leaks, they expose people to potential future harm. Architectures of

vulnerability result in people being worse off—they are akin to a dis

ease that weakens the immune system.

Chilling Effects. Some privacy problems create another kind of harm:

they inhibit people from engaging in certain activities. This land of

harm is often referred to as a “chilling effect.”1 Legal scholar Fred

erick Schauer defines it as follows: “A chilling effect occurs w hen indi

viduals seeking to engage in activity protected by the first amendment

are deterred from doing so by governmental regulation not specifically

directed at that protected activity.”18 Government monitoring of dissi

dent groups can make people less likely to attend political rallies or

criticize popular views. On a number of occasions, American courts

have recognized chilling effects as injuries. The chilling-effect doctrine

understands that First Amendment rights, such as free speech and free

association, can be inhibited indirectly, not just through direct legal re

strictions.19

The value of protecting against such chilling effects is not measured

simply in terms of the value to those particular individuals. Chilling ef

fects harm society because, among other things, they reduce the range

of viewpoints being expressed and limit the degree of freedom with

which to engage in political activity.

Power Imbalances. Many privacy problems result in power imbalances

that adversely affect social structure but do not result in direct harm to

specific individuals. The problem of exclusion, for example, often does

not cause psychological harm, but it puts people in a position of powr-

erlessness. Powrer imbalances can occur when a particular activity up

sets the balance of social or institutional powder in undesirable ways.

Sociologist Robert Merton notes, “ ‘Privacy’ is not merely a personal

predilection; it is an important functional requirement for the effective