wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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bounds. This state of affairs can leave nearly all consumers in a power
less position. T he harms are not primarily injuries to particular
individuals—they involve structural harms.
Privacy and Cultural Difference
T he privacy problems in the taxonomy have been recognized, at least
partially, in nearly every industrialized information-age society. Cul
tural differences manifest themselves most in terms of ascribing
different values to privacy and countervailing interests. M y project fo
cuses primarily on understanding and distinguishing privacy problems
because this approach transcends cultural variation more than other
ways of understanding privacy. Once we move to ascribing values,
however, cultural differences begin to play a greater role.
In analyzing a privacy problem, we must first identify the problem,
assess its value and the value of any conflicting interests, and then seek a
reconciliation or determine which prevails in a balancing. T he balance
might come out differendy across various societies because of differ
ences in the values ascribed to privacy and its conflicting interests. De
spite contrasting balances, it is important to note that there is a signifi
cant degree of consensus about the kinds of problems involved. This is
the first step toward addressing privacy issues, but difficulties in concep
tualizing these problems often prematurely halt the balancing process
even before privacy and conflicting interests are placed on the scale.
It is often not fruitful to speak in broad generalities about whether a
particular country or society respects “privacy.” Speaking in terms of
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the more specific problems in the taxonomy will be much more
helpful. In any given society, certain aspects of life (for example, sex or
nudity) may be protected against exposure, but some cultures do not
protect them all. T he harm of exposure exists in many cultures, though
not to the same degree. In many primitive communal societies, people
live openly and tolerate much greater degrees of visibility than people
in modern industrialized societies. Nevertheless, these societies may
still recognize privacy violations. For example, the Mehinacu tribe,
which lives deep in the tropical rain forests of Brazil, appears to have
little privacy. Mehinacu families share houses that are arrayed around a
central common area. Gossip is rampant, and nearly everything is in an
open area. Nevertheless, the Mehinacu have enclaves of seclusion,
paths away from others where people can engage in clandestine affairs.
T he tribe has norms against gawking, reporting certain of each other’s
transgressions, interrogating people about intimate matters, and en
tering into another family’s space.31
Therefore, although the problems in the taxonomy are not universal,
they are widely recognized. Different societies protect against them dif
ferently, a reflection of different values ascribed both to privacy and to
the interests that conflict with it. It is certainly true that societies do not
experience some of the privacy problems with the same degree of inten
sity. For example, Professor Dan Rosen notes that people have less
seclusion in Japan than in many other industrialized societies because of
very crowded conditions. Japan’s exceptionally crammed subways, for
example, lead to extensive physical contact that is alien to people in
many other societies. This does not mean, however, that the Japanese
prefer less personal space or that they fail to recognize the harm of in
trusion. Even despite the extensive bodily contact, the Japanese find
certain conduct intrusive, such as groping or glaring.32 Living condi
tions and life experiences within different societies alter people’s toler
ance of a lack of interpersonal distance. O f course, these living condi
tions could also be the product of a different set of values and desires
with respect to privacy. But generally, across a wide array of societies,
people recognize the problems in the taxonomy as problematic to some
degree. We see evidence of this recognition in the laws, politics, litera
ture, and other cultural products that embody a society’s values.
Nevertheless, some commentators focus more on the differences
than the similarities and conclude that cultural attitudes toward privacy
Privacy: A New Understanding
185
are so divergent that little can be done to bridge the gaps. There is no
shared worldwide understanding of privacy, they argue, just a number
of localized notions. For example, Professor James W hitman argues
that American and European privacy law emerge from two very dis
tinct underlying conceptions of privacy: “[T]here are, on the two sides
of the Adantic, two different cultures of privacy, which are home to
different intuitive sensibilities, and which have produced two signifi
cantly different laws of privacy.” According to W hitman, “American
privacy law is a body caught in the gravitational orbit of liberty values,
while European law is caught in the orbit of dignity.” Europeans have a
deeper concern for honor and dignity, whereas Americans have prized
liberty in the form of freedom from government control. “Continental
jurists,” W hitman observes, “have always tried to understand ‘privacy’
as a species of personal honor.” W hitman concludes that W arren and
Brandeis tried to import “a continental-style of privacy into American
law,” and that this was an “unsuccessful continental transplant.” Be
cause of the difference between American and European conceptions,

bounds. This state of affairs can leave nearly all consumers in a power

less position. T he harms are not primarily injuries to particular

individuals—they involve structural harms.

Privacy and Cultural Difference

T he privacy problems in the taxonomy have been recognized, at least

partially, in nearly every industrialized information-age society. Cul

tural differences manifest themselves most in terms of ascribing

different values to privacy and countervailing interests. M y project fo

cuses primarily on understanding and distinguishing privacy problems

because this approach transcends cultural variation more than other

ways of understanding privacy. Once we move to ascribing values,

however, cultural differences begin to play a greater role.

In analyzing a privacy problem, we must first identify the problem,

assess its value and the value of any conflicting interests, and then seek a

reconciliation or determine which prevails in a balancing. T he balance

might come out differendy across various societies because of differ

ences in the values ascribed to privacy and its conflicting interests. De

spite contrasting balances, it is important to note that there is a signifi

cant degree of consensus about the kinds of problems involved. This is

the first step toward addressing privacy issues, but difficulties in concep

tualizing these problems often prematurely halt the balancing process

even before privacy and conflicting interests are placed on the scale.

It is often not fruitful to speak in broad generalities about whether a

particular country or society respects “privacy.” Speaking in terms of

184

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 more specific problems in the taxonomy will be much more

helpful. In any given society, certain aspects of life (for example, sex or

nudity) may be protected against exposure, but some cultures do not

protect them all. T he harm of exposure exists in many cultures, though

not to the same degree. In many primitive communal societies, people

live openly and tolerate much greater degrees of visibility than people

in modern industrialized societies. Nevertheless, these societies may

still recognize privacy violations. For example, the Mehinacu tribe,

which lives deep in the tropical rain forests of Brazil, appears to have

little privacy. Mehinacu families share houses that are arrayed around a

central common area. Gossip is rampant, and nearly everything is in an

open area. Nevertheless, the Mehinacu have enclaves of seclusion,

paths away from others where people can engage in clandestine affairs.

T he tribe has norms against gawking, reporting certain of each other’s

transgressions, interrogating people about intimate matters, and en

tering into another family’s space.31

Therefore, although the problems in the taxonomy are not universal,

they are widely recognized. Different societies protect against them dif

ferently, a reflection of different values ascribed both to privacy and to

the interests that conflict with it. It is certainly true that societies do not

experience some of the privacy problems with the same degree of inten

sity. For example, Professor Dan Rosen notes that people have less

seclusion in Japan than in many other industrialized societies because of

very crowded conditions. Japan’s exceptionally crammed subways, for

example, lead to extensive physical contact that is alien to people in

many other societies. This does not mean, however, that the Japanese

prefer less personal space or that they fail to recognize the harm of in

trusion. Even despite the extensive bodily contact, the Japanese find

certain conduct intrusive, such as groping or glaring.32 Living condi

tions and life experiences within different societies alter people’s toler

ance of a lack of interpersonal distance. O f course, these living condi

tions could also be the product of a different set of values and desires

with respect to privacy. But generally, across a wide array of societies,

people recognize the problems in the taxonomy as problematic to some

degree. We see evidence of this recognition in the laws, politics, litera

ture, and other cultural products that embody a society’s values.

Nevertheless, some commentators focus more on the differences

than the similarities and conclude that cultural attitudes toward privacy

Privacy: A New Understanding

185

are so divergent that little can be done to bridge the gaps. There is no

shared worldwide understanding of privacy, they argue, just a number

of localized notions. For example, Professor James W hitman argues

that American and European privacy law emerge from two very dis

tinct underlying conceptions of privacy: “[T]here are, on the two sides

of the Adantic, two different cultures of privacy, which are home to

different intuitive sensibilities, and which have produced two signifi

cantly different laws of privacy.” According to W hitman, “American

privacy law is a body caught in the gravitational orbit of liberty values,

while European law is caught in the orbit of dignity.” Europeans have a

deeper concern for honor and dignity, whereas Americans have prized

liberty in the form of freedom from government control. “Continental

jurists,” W hitman observes, “have always tried to understand ‘privacy’

as a species of personal honor.” W hitman concludes that W arren and

Brandeis tried to import “a continental-style of privacy into American

law,” and that this was an “unsuccessful continental transplant.” Be

cause of the difference between American and European conceptions,