wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
sanction or prohibition. This fact makes addressing privacy issues
complex. In many instances, there is no indisputable villain whose ac
tivities lack social value. Instead, many privacy problems emerge as a
result of efficacious activities, much as pollution is an outgrowth of in
dustrial production. W ith the taxonomy, I have attempted to demon
strate that these activities are not without cost; they have certain non
trivial effects on people’s lives and well-being.
Courts and policymakers often have great difficulty in arriving at a
coherent assessment of the various privacy problems they must address.
One common pitfall is viewing “privacy” as involving a particular kind
of problem to the exclusion of all others. As illustrated throughout this
book, courts generally find no privacy interest if information is in the
188
P
r
i v
a
c
y : A N
e w U
n
d
e
r
s
t
a
n
d
i n
g
public domain, if people are monitored in public, if information is
gathered in a public place, if no intimate or embarrassing details are re
vealed, or if no new data is collected about a person. If courts and leg
islatures focused instead on privacy problems, many of these distinctions
and determinative factors would m atter much less in the analysis.
Thus, in analyzing surveillance issues, courts currendy focus on
whether the surveillance occurs in public or in private, even though
problems and harms can emerge in all settings. Aggregation creates
problems even when all the data are already available in the public do
main. The same is true of increased accessibility. For disclosure, the se
crecy of the information becomes a central dispositive factor, but this
approach often misses the crux of the disclosure harm, which is not the
revelation of total secrets, but the spreading of information beyond ex
pected boundaries. In intrusion analyses, courts often fail to recognize
harm when people are intruded upon in public places, but the nature of
the harm is not limited solely to private places.
At other times, the privacy problem at issue is misconstrued. For
example, identification is often understood as a harm created by re
vealing one’s name, but the essence of the problem is being linked to a
stream of data, not only a name. Insecurity is often not adequately ad
dressed by the law because a materialized harm has not yet occurred.
But insecurity remains a problem even where there has been no actual
disclosure or leakage of embarrassing details. Appropriation is under
stood primarily as a harm to property interests, and its dignitary di
mensions are thus frequently ignored by courts. Further complicating
matters is the fact that privacy problems are inconsistently recognized
across different areas of the law. For example, tort law readily recog
nizes and redresses breach of confidentiality, but Fourth Amendment
law ignores it.
Courts and legislatures respond well to more traditional privacy
problems, such as intrusions that are physical in nature, disclosures of
deep secrets, or distortion. This is due, in part, to the fact that these
problems track traditional conceptions of privacy. In the secrecy para
digm, a privacy violation is understood as the uncovering of a person’s
hidden world. Physical intrusions are problems that even people in
ancient times could experience and understand. But some of the pri
vacy problems we face today are different in nature and do not track
traditional conceptions of privacy. T hey involve efforts to gain
Privacy: A New Understanding
189
knowledge about individuals without physically intruding on them
or even gathering data directly from them (aggregation), or problems
that emerge from the way that data is handled and maintained (insecu
rity), the way it is used (secondary use), and the inability of people to
participate in its processing (exclusion). M odem privacy problems
emerge not just from disclosing deep secrets, but from making obscure
information more accessible (increased accessibility) or from consistent
observation or eavesdropping (surveillance).
T he taxonomy lays down a framework to understand the range of
privacy problems, the similarities, differences, and relationships among
them, and what makes them problematic. T he taxonomy also seeks to
emphasize how privacy problems arise. Often, technology is involved
in various privacy problems because it facilitates the gathering, pro
cessing, and dissemination of information. Privacy problems, however,
are caused not by technology alone, but primarily through activities of
people, businesses, and governments. These activities disrupt other ac
tivities that we value and thus create a problem. T he way to address
privacy problems is to reconcile conflicts between activities. To demon
strate the importance of understanding the different types of privacy
problems, as well as the social value of privacy, I will provide a few
examples.
Drug Testing
In Board o f Education v. Earls, a school district in Tecumseh, Oklahoma,
required all middle- and high-school students to undergo drug testing
before participating in any extracurricular activity. Some of the stu
dents challenged the policy under the Fourth Amendment. T he U.S.
Supreme Court recognized that drug testing involves a search under
the Fourth Amendment. Because of “special needs beyond the normal
need for law enforcement,” the Court concluded that the Fourth

sanction or prohibition. This fact makes addressing privacy issues

complex. In many instances, there is no indisputable villain whose ac

tivities lack social value. Instead, many privacy problems emerge as a

result of efficacious activities, much as pollution is an outgrowth of in

dustrial production. W ith the taxonomy, I have attempted to demon

strate that these activities are not without cost; they have certain non

trivial effects on people’s lives and well-being.

Courts and policymakers often have great difficulty in arriving at a

coherent assessment of the various privacy problems they must address.

One common pitfall is viewing “privacy” as involving a particular kind

of problem to the exclusion of all others. As illustrated throughout this

book, courts generally find no privacy interest if information is in the

188

P

r

i v

a

c

y : A N

e w U

n

d

e

r

s

t

a

n

d

i n

g

public domain, if people are monitored in public, if information is

gathered in a public place, if no intimate or embarrassing details are re

vealed, or if no new data is collected about a person. If courts and leg

islatures focused instead on privacy problems, many of these distinctions

and determinative factors would m atter much less in the analysis.

Thus, in analyzing surveillance issues, courts currendy focus on

whether the surveillance occurs in public or in private, even though

problems and harms can emerge in all settings. Aggregation creates

problems even when all the data are already available in the public do

main. The same is true of increased accessibility. For disclosure, the se

crecy of the information becomes a central dispositive factor, but this

approach often misses the crux of the disclosure harm, which is not the

revelation of total secrets, but the spreading of information beyond ex

pected boundaries. In intrusion analyses, courts often fail to recognize

harm when people are intruded upon in public places, but the nature of

the harm is not limited solely to private places.

At other times, the privacy problem at issue is misconstrued. For

example, identification is often understood as a harm created by re

vealing one’s name, but the essence of the problem is being linked to a

stream of data, not only a name. Insecurity is often not adequately ad

dressed by the law because a materialized harm has not yet occurred.

But insecurity remains a problem even where there has been no actual

disclosure or leakage of embarrassing details. Appropriation is under

stood primarily as a harm to property interests, and its dignitary di

mensions are thus frequently ignored by courts. Further complicating

matters is the fact that privacy problems are inconsistently recognized

across different areas of the law. For example, tort law readily recog

nizes and redresses breach of confidentiality, but Fourth Amendment

law ignores it.

Courts and legislatures respond well to more traditional privacy

problems, such as intrusions that are physical in nature, disclosures of

deep secrets, or distortion. This is due, in part, to the fact that these

problems track traditional conceptions of privacy. In the secrecy para

digm, a privacy violation is understood as the uncovering of a person’s

hidden world. Physical intrusions are problems that even people in

ancient times could experience and understand. But some of the pri

vacy problems we face today are different in nature and do not track

traditional conceptions of privacy. T hey involve efforts to gain

Privacy: A New Understanding

189

knowledge about individuals without physically intruding on them

or even gathering data directly from them (aggregation), or problems

that emerge from the way that data is handled and maintained (insecu

rity), the way it is used (secondary use), and the inability of people to

participate in its processing (exclusion). M odem privacy problems

emerge not just from disclosing deep secrets, but from making obscure

information more accessible (increased accessibility) or from consistent

observation or eavesdropping (surveillance).

T he taxonomy lays down a framework to understand the range of

privacy problems, the similarities, differences, and relationships among

them, and what makes them problematic. T he taxonomy also seeks to

emphasize how privacy problems arise. Often, technology is involved

in various privacy problems because it facilitates the gathering, pro

cessing, and dissemination of information. Privacy problems, however,

are caused not by technology alone, but primarily through activities of

people, businesses, and governments. These activities disrupt other ac

tivities that we value and thus create a problem. T he way to address

privacy problems is to reconcile conflicts between activities. To demon

strate the importance of understanding the different types of privacy

problems, as well as the social value of privacy, I will provide a few

examples.

Drug Testing

In Board o f Education v. Earls, a school district in Tecumseh, Oklahoma,

required all middle- and high-school students to undergo drug testing

before participating in any extracurricular activity. Some of the stu

dents challenged the policy under the Fourth Amendment. T he U.S.

Supreme Court recognized that drug testing involves a search under

the Fourth Amendment. Because of “special needs beyond the normal

need for law enforcement,” the Court concluded that the Fourth