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July 2002
Conceptualizing PrivacyDaniel J. Solove
Recommended CitationDaniel J. Solove, Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002).Available at: http://scholarship.law.berkeley.edu/californialawreview/vol90/iss4/2
This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted forinclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please firstname.lastname@example.com. Conceptualizing Privacy
Daniel J. Solovet
TABLE OF CONTENTSIntroduction ................................................... 1088I. A Critique of the Conceptions of Privacy ....................................... 1093 A. Methods of Conceptualizing ..................................................... 1095 1. The Traditional Method ..................................................... 1095 2. Wittgensteinian Family Resemblances ............................. 1096 B. Conceptions of Privacy ............................................................. 1099 1. The Right to Be Let Alone ................................................. 1099 2. Limited Access to the Self ................................................. 1102 3. Secrecy ............................................................................... 1105 4. Control Over Personal Information .................................... 1109 5. Personhood ......................................................................... 1116 a. Individuality, Dignity, and Autonomy ......................... 1116 b. Antitotalitarianism ....................................................... 1119 6. Intimacy .............................................................................. 1121 C. Toward a New Approach to Conceptualizing Privacy .............. 1124II. Reconceptualizing Privacy: A Pragmatic Approach ...................... 1126 A. Privacy and Practices ................................................................ 1129 1. Social Practices .................................................................. 1129 2. Historical Development of Privacy Practices ..................... 1132 a. Family .......................................................................... 1132 b. Body ............................................................................. 1135 c. Home ............................................................................ 1137 3. Privacy and Technological and Social Change .................. 1141 B. The Value of Privacy ................................................................ 1143 C. Practical Applications ............................................................... 1146Conclusion ............................................................................................. 1154
Copyright 2002 California Law Review, Inc. California Law Review, Inc. (CLR) is a Californianonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Assistant Professor of Law, Seton Hall Law School. J.D., Yale Law School, 1997. Specialthanks to Michael Sullivan for his immensely helpful comments on several drafts of this Article. Iwould also like to thank Michelle Adams, Jim Freeman, Timothy Glynn, Rachel Godsil, Raymond Ku,Marc Poirier, Michael Risinger, Charles Sullivan, and Richard St. John for their very insightfulcomments on the manuscript. Additionally, I would like to thank Richard Weisberg and lack Balkin forilluminating discussions about the ideas in this Article.
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Conceptualizing Privacy
Daniel J. Solove
1. See, e.g., Ruth Gavison, Privacy and the Limits of Law, 89 YALE L.J. 421, 422 (1980)(lamenting the lack of a useful, distinct, and coherent concept of privacy). 2. ARTHUR R. MILLER, THE ASSAULT ON PRIVACY: COMPUTERS, DATA BANKS, AND DOSSIERS25(1971). 3. JULIE C. INNESS, PRIVACY, INTIMACY, AND ISOLATION 3 (1992).2002] CONCEPTUALIZING PRIVACY 1089
have been left so undefined in social theory .... ,,I William Beaney hasnoted that "even the most strenuous advocate of a right to privacy mustconfess that there are serious problems of defining the essence and scope of ' 6this right."5 Privacy has "a protean capacity to be all things to all lawyers,Tom Gerety has observed. According to Robert Post, "[p]rivacy is a valueso complex, so entangled in competing and contradictory dimensions, soengorged with various and distinct meanings, that I sometimes despairwhether it can be usefully addressed at all."7 Several theorists have sur-veyed the interests that the law protects under the rubric of privacy andhave concluded that they are distinct and unrelated.8 Judith Thompson haseven argued that privacy as a concept serves no useful function, for whatwe call privacy really amounts to a set of other more primary interests.9 The widespread discontent over conceptualizing privacy persists eventhough the concern over privacy has escalated into an essential issue forfreedom and democracy. To begin to solve some of the problems of pri-vacy, we must develop an approach to conceptualizing privacy to guidepolicymaldng and legal interpretation. Although the domain of law relatingto privacy has made significant strides in dealing with privacy problems, ithas thus far suffered numerous failures and difficulties in resolving them.Why does such a diverse body of law seem so outmatched and unsuited forthe privacy problems we are currently experiencing? In a world constantly
10. The "reasonable expectation of privacy" test currently employed by the Court to determinethe applicability of the Fourth Amendment to a particular situation was first articulated in JusticeHarlan's concurring opinion in Katz v. United States, 389 U.S. 347 (1967). A person must demonstratean "actual (subjective) expectation of privacy" and "the expectation [must] be one that society isprepared to recognize as 'reasonable."' Id. at 360-61 (Harlan, J., concurring). 11. RESTATEMENT (SECOND) OF TORTS 652D (1977). 12. Id. 652B. 13. 429 U.S. 589 (1977); see also Nixon v. Adm'r of Gen. Servs., 433 U.S. 425 (1977). 14. The constitutional right to information privacy is derived from the substantive due processright to privacy originating in Grisivold v. Connecticut, 381 U.S. 479 (1965), and it protects "theindividual interest in avoiding disclosure of personal matters." Whalen, 429 U.S. at 599-600. A numberof circuit courts have recognized the constitutional right to information privacy. See, e.g., Barry v. Cityof New York, 712 F.2d 1554, 1559 (2d Cir. 1983); United States v. Westinghouse Elec. Corp., 638F.2d 570, 577-80 (3d Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978). 15. See, e.g., Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (2002);Video Privacy Protection Act of 1988, 18 U.S.C. 2701 (2002); Driver's Privacy Protection Act of1994, 18 U.S.C. 2721-2725 (2002); Children's Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6503 (2002); Privacy Act of 1974, 18 U.S.C. 2510-2522, 2701-2709 (2002); ElectronicCommunications Privacy Act of 1986, 5 U.S.C. 552a (2002).2002] CONCEPTUALIZING PRIVACY
What is privacy? We all have some intuitive sense that there are cer-tain aspects of life that are "private" and view these aspects of life as re-lated to each other. But what does it mean when we say that these aspectsof life are "private"? This question is very important for making legal and policy decisions.Many recognize the importance of privacy for freedom, democracy, socialwelfare, individual well-being, and other ends. Many also assert it is worthprotecting at significant cost. Supreme Court Justice Louis Brandeis spokeof the profound importance of establishing and safeguarding a right to pri-vacy, describing such a right as "the most comprehensive of rights and theright most valued by civilized men."21 Society's commitment to privacy
20. See JOHN DEWEy, LOGIC, THE THEORY OF INQUIRY 106-10 (Jo Ann Boydston ed., 1988). 21. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).1094 CALIFORNIA LA W RE VIEW [Vol. 90:1087
A. Methods of Conceptualizing1. The TraditionalMethod When we conceptualize privacy, what are we attempting to do? Underwhat I will refer to as the "traditional method," conceptualizing privacy isunderstood as an attempt to articulate what separates privacy from otherthings, what makes it unique, and what identifies it in its various manifes-tations. Most attempts to conceptualize privacy thus far have followed thetraditional method of conceptualizing. The majority of theorists conceptu-alize privacy by defining it per genus et differentiam. In other words, theo-rists look for a common set of necessary and sufficient elements that singleout privacy as unique from other conceptions.2 2 A conception of privacy is different from the usage of the word"privacy." The usage of the word "privacy" constitutes the ways in whichwe employ the word in everyday life and the things we are referring towhen we speak of "privacy." The word "privacy" is currently used to de-scribe a myriad of different things: freedom of thought, control over per-sonal information, freedom from surveillance, protection of one'sreputation, protection from invasions into one's home, the ability to pre-vent disclosure of facts about oneself, and an almost endless series of otherthings. According to the traditional method of conceptualizing, a conceptionis a category, an abstract mental picture of what makes privacy distinctfrom other things and the criteria for what makes things fall within thecategory. People can use the word "privacy" improperly by referring tothings outside the category or by not referring to things within thecategory. The purpose of conceptualizing is to define the unique
22. See, e.g., INNESS, supra note 3, at 56 (noting that intimacy is the "common denominator" ofprivacy); MILLER, supranote 2, at 25 (stating that control is the "basic attribute" of privacy); DAVID M.O'BRIEN, PRIVACY, LAW, AND PUBLIC POLICY 16 (1979) (conceptualizing privacy as "fundamentallydenoting an existential condition of limited access"); Edward J. Bloustein, Privacy as an Aspect ofHuman Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. REV. 962, 963 (1964) (proposing a"general theory of individual privacy which will reconcile the divergent strands of legal development");Charles Fried, Privacy, 77 YALE W. 475, 475 (1968) (seeking to "isolate from restrictions andintrusions in general whatever is peculiar about invasions of privacy"); Gavison, supra note 1, at 423(developing a "distinct and coherent" conception of privacy); Gerety, supra note 6, at 263 ("Intimacy isthe chief restricting concept in the definition of privacy."); Richard B. Parker, A Definition ofPrivacy,27 RUTGERS L. REv. 275, 277 (1974) (seeking to articulate "some characteristic common to all or someof [a list of invasions of 'different personal interests']"); see also infra Part I.B.1096 CALIFORNIA LA W REVIEW [Vol. 90:1087
2. WittgensteinianFamily Resemblances I draw on some of the ideas of philosopher Ludwig Wittgenstein todemonstrate that the traditional method is not the only way to approach thetask of conceptualizing. Ludwig Wittgenstein (1889-1951) was an Austrianphilosopher who focused extensively on problems in language and logic. In
26. After publishing his highly influential Tractatus Logico-Philosophicusin 1921, Wittgensteindisappeared from the philosophical scene for over a decade. See LUDWIG NVITrGENSTIIN, TRACrATUSLOGIco-PILosoPHICUS (D.F. Pears & B.F. McGuiness trans., 1961). When he returned, he hadsubstantially altered his views, recognizing that he had made "grave mistakes" in Tractatus. SeeWiITTOENSTEIN, supra note 16, at vi. Because Wittgenstein's thinking changed dramatically during hiscareer, Tractatus is often referred to as "early" Wittgenstein, and PhilosophicalInvestigations,alongwith other works such as On Certainty,are referred to as "late" Wittgenstein. 27. WrrOENSTEIN, supra note 16, 91. 28. Id. 43 ("T]he meaning of a word is its use in the language."). 29. Wittgenstein uses the term "language-games" to describe the activities involving language.Id. 7. Wittgenstein uses "games" as a metaphor to describe language as an active endeavor such asplaying chess, tennis, or a card game. Wittgenstein thus sees language not as an abstract system of signsbut as a functioning aspect of our daily lives, as something we do, as a "form of life." Id. 19. Thereare a "multiplicity" of language-games, such as giving orders, describing appearances, reporting anevent, speculating, singing, telling ajoke, and so on. See id. 23. 30. Id. 65. 31. Id. 66. 32. Id. 33. Id. 34. Id.1098 CALIFORNIA LA W REVIEW [Vol. 90:1087
35. Id. 67. For more background into Wittgenstein's notion of family resemblances, see P.M.S.HACKER, INSIGHT AND ILLUSION: THEMES IN THE PHILOSOPHY OF WITrGENSTE1N 131-34 (1986);HANNA FEINCHEL PITKIN, WITrGENSTEN AND JUSTICE: ON THE SIGNIFICANCE OF LUDIGWiTTGENSTEIN FOR SOCIAL AND POLITICAL THOUGHT 63-65 (1972). 36. In his excellent recent book, Steven Winter develops a related view of conceptualization. Heargues: "On the standard view, categories are descriptive, definitional, and rigidly bounded. Theempirical evidence, in contrast, presents a picture of categorization as an imaginative and dynamicprocess that is flexible in application and elastic in scope." STEVEN L. WINTER, A CLEARING IN THEFoREsT: LAW, LIFE, AND MIND 69 (2001). Winter contends that categories are "radial"; they consist ofa "central model" or paradigm example and related extensions radiating outward. Id. at 71. Theserelated extensions, "though related to the central case in some fashion, nevertheless cannot be generatedby rule." Id. 37. WITTGENSTEIN, supra note 16, 68. 38. Wittgenstein uses the terms "blurred edges" and "indistinct picture." Id. 71. 39. See generally id. 69, 499; see also WINTER, supra note 36, at 100-01 (contending thatcategories are not static entities but are tools created for particular purposes). 40. WITTGENSTEIN, supra note 16, 69.2002] CONCEPTUALIZING PRIVACY 1099
variety of factors. The moral is: Look to the circumstances!"4 Shifting thefocus away from finding a common denominator may prove immenselyfruitful. The top-down approach of beginning with an overarching concep-tion of privacy designed to apply in all contexts often results in a concep-tion that does not fit well when applied to the multitude of situations andproblems involving privacy. In contrast to the view of the traditional method, where the quest for acommon denominator or essence leads to greater clarity, Wittgensteinshows us that such a quest can sometimes lead to confusion. I contend thatthis explains the problems currently experienced in the discourse. In the remainder of this Part, I will illustrate these rather abstract ideasby examining the various attempts to conceptualize privacy, and will dem-onstrate the difficulties of conceptions of privacy that seek to isolate itscore characteristics.
B. Conceptions of Privacy As I have discussed before, the philosophical discourse about privacyhas proposed numerous conceptions that attempt to capture the commondenominator of privacy. Wittgenstein demonstrates that not all conceptionshave a "core" or "essence." Is privacy such a conception? In this section, I explore the philosophical and legal discourse to as-sess the conceptions that attempt to isolate a common denominator of pri-vacy. Although I am critical of most conceptions of privacy, I do not intendto imply that the discourse is devoid of merit. In fact, many of the concep-tions capture profound insights about privacy. However, each of the con-ceptions has significant limitations if it is to serve as a conceptual accountof privacy in general. Beyond the specific critiques of each general cate-gory of conceptions, I aim to illustrate my overarching critique about thepredominant approach of the discourse toward conceptualizing privacy.42
44. See, e.g., Irwin P. Kramer, The Birth ofPrivacyLmv: A Century Since Warren andBrandeis,39 CATH. U. L. REV. 703, 704 (1990). Harry Kalven has even hailed it as the "most influential lawreview article of all." Harry Kalven, Jr., Privacy in Tort Lav--Were Warren and Brandeis Wrong?, 31LAW & CONTEMP. PRoBs. 326, 327 (1966). 45. See, e.g., Richard C. Turkington, Legacy of the Warren and Brandeis Article: The EmergingUnencumbered Constitutional Right to Informational Privacy, 10 N. ILL. U. L. REV. 479, 481-82(1990). Turkington observed: [Tihe article has acquired legendary status in the realm of legal scholarship. It is likely that The Right to Privacy has had as much impact on the development of law as any single publication in legal periodicals. It is certainly one of the most commented upon and cited articles in the history of our legal system.Id. 46. Warren & Brandeis, supra note 43, at 193. 47. THOMAS M. COOLEY, LAW OF TORTS (2d ed. 1888). Around the same time that Warren andBrandeis published their article, the Supreme Court referred to the right to be let alone in holding that acourt could not require a plaintiff in a civil case to submit to a surgical examination: "As well said byJudge Cooley: 'The right to one's person may be said to be a right of complete immunity; to be letalone."' Union Pac. Ry. Co. v. Botsford, 141 U.S. 250,251 (1891). 48. ROBERT ELLIS SMITH, BEN FRANKLIN'S WEB SITE: PRIVACY AND CURIOSITY FROMPLYMOUTH ROCK TO THE INTERNET 128 (2000). 49. Warren & Brandeis, supra note 43, at 205. 50. Id. at 200. 51. Id.at 196.2002] CONCEPTUALIZINGPRIVACY
the private sphere, but this phrase is vague, and the authors failed to elabo-rate. To the extent that being let alone refers to "noninterference by thestate," legal scholar Ruth Gavison argues, it often neglects to understandthat "the typical privacy claim is not a claim for noninterference by thestate at all. It is a claim for state interference in the form of legal protectionagainst other individuals."6 The right to be let alone views privacy as a type of immunity or seclu-sion. As many commentators lament, defining privacy as the right to be letalone is too broad.6' For example, legal scholar Anita Allen explains: "Ifprivacy simply meant 'being let alone,' any form of offensive or harmfulconduct directed toward another person could be characterized as a viola-tion of personal privacy. A punch in the nose would be a privacy invasionas much as a peep in the bedroom."6 2 According to philosopher FerdinandSchoeman, Warren and Brandeis "never define what privacy is."63 EdwardBloustein, a noted legal theorist of privacy, observed that instead of devel-oping a conception of privacy, Warren and Brandeis's article focusedmostly on the gaps in existing common-law torts.' To its credit, the article was far ahead of its time, and it containedflashes of insight into a more robust theory of privacy. And to be fair,Warren and Brandeis's aim was not to provide a comprehensive conceptionof privacy but instead to explore the roots of a right to privacy in thecommon law and explain how such a right could develop. The article wascertainly a profound beginning toward developing a conception of privacy.However, while the right to be let alone has often been invoked by judgesand commentators,65 it still remains a rather broad and vague conception ofprivacy.
67. E.L. Godkin, Libel and Its Legal Remedy, 12 J. Soc. Sci. 69, 80 (1880). 68. E.L. Godkin, The Rights of the Citizen, IV-To His Own Reputation, SCRIBNER'S MAGAZINE,July-Dec. 1890, at 65. For a discussion of this article's influence on Warren and Brandeis, see RICHARDC. TURKINGTON & ANITA L. ALLEN, PRIVACY LAW: CASES AND MATERIALS 40-41 (1999). 69. SISSELA BOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION 10-11 (1983). 70. Gross, supranote 6, at 35-36 (emphasis removed). 71. Ernest Van Den Haag, On Privacy, in Nomfos XIII: PRIVACY 149, 149 (J. Ronald Pennock &J.v. Chapman eds., 1971). 72. ALLEN, supra note 62, at 10. For an additional proponent of limited-access conceptions, seeEdward Shils, Privacy: Its Constitutionand Vicissitudes, 31 LAW & CONTEMIP. PROaS. 281,281 (1966)(Privacy "is constituted by the absence of interaction or communication or perception within contextsin which such interaction, communication, or perception is practicable .... ").1104 CALIFORNIA LA W REVIEW [Vol. 90:1087
to the self. Others view limited access as a state of existence. Arguing forthe latter view, O'Brien claims that privacy "may be understood asfindamentally denoting an existential condition of limited access to anindividual's life experiences and engagements."73 "Privacy is not identicalwith control over access to oneself, because not all privacy is chosen. Some 74privacy is accidental, compulsory, or even involuntary. For O'Brien, privacy boils down to the condition of being alone. Thissuffers from two problems. First, O'Brien neglects to incorporate into hisconception an approach toward understanding the content of the privatesphere. Second, O'Brien's conception omits any notion of the individual'spower to make certain choices about revealing aspects of herself to others.For example, O'Brien would claim that a person stranded on a desertedisland has complete privacy, but this is better described as a state of isola-tion. Privacy involves one's relationship to society; in a world without oth-ers, claiming that one has privacy does not make much sense. According tosociologist Barrington Moore, "the need for privacy is a socially createdneed. Without society there would be no need for privacy."75 Without a notion of what matters are private, limited-access concep-tions do not tell us the substantive matters for which access would impli-cate privacy. Certainly not all access to the self infringes upon privacy-only access to specific dimensions of the self or to particular matters andinformation. As a result, the theory provides no understanding of the de-gree of access necessary to constitute a privacy violation. How much con-trol we should have over access to the self? Proponents of the limited-access conception could respond that privacy is a continuum betweenabsolutely no access to the self and total access. If privacy is such a contin-uum, then the important question is where the lines should be drawn-thatis, what degree of access should we recognize as reasonable? This questioncan only be answered with an understanding of what matters are privateand the value of privacy. Like the right-to-be-let-alone conception, the lim-ited-access conception suffers from being too broad and too vague. In Privacy and the Limits of Law, legal theorist Ruth Gavison, in anattempt to address these shortcomings, develops the most compelling con-ception of privacy as limited access. Her aim is to define "a neutral conceptof privacy" that is "distinct and coherent" because "the reasons for whichwe claim privacy in different situations are similar."76 For Gavison, limitedaccess is the common denominator of privacy: "Our interest inprivacy... is related to our concern over our accessibility to others: theextent to which we are known to others, the extent to which others have
physical access to us, and the extent to which we are the subject of others'attention."" According to Gavison, privacy cannot be understood "as aclaim, a psychological state, or an area that should not be invaded... [or]as a form of control."78 Unlike many limited access theorists who neglectto elaborate on the value of privacy, Gavison argues that privacy as limitedaccess to the self is valuable in furthering liberty, autonomy, and free- 79dom. Further, Gavison explains what constitutes limited access, which con-sists of "three independent and irreducible elements: secrecy, anonymity,and solitude."8 However, the way that Gavison defines access restrictsprivacy to matters of withdrawal (solitude) and concealment (secrecy, ano-nymity). Excluded from this definition are invasions into one's private lifeby harassment and nuisance and the government's involvement in deci-sions regarding one's body, health, sexual conduct, and family life.8 Al-though Gavison contends that "the collection, storage, and computerizationof information "' 8 falls within her conception, these activities often do notreveal secrets, destroy anonymity, or thwart solitude. 83 Therefore, althoughGavison avoids the broadness and vagueness of most limited-access con-ceptions, her attempt to define what "access" entails winds up being toonarrow.
3. Secrecy One of the most common understandings of privacy is that it consti-tutes the secrecy of certain matters. Under this view, privacy is violated bythe public disclosure of previously concealed information. According toJudge Richard Posner: [T]he word 'privacy' seems to embrace at least two distinct interests. One is the interest in being left alone-the interest that is invaded by the unwanted telephone solicitation, the noisy sound truck, the music in elevators, being jostled in the street, or even an obscene theater billboard or shouted obscenity.... The other privacy interest, concealment of information, is invaded whenever private information is obtained against the wishes of the person to whom the information pertains. 4
77. Id. 78. Id. at 426. 79. See id.at 423. 80. Id.at 433. 81. Gavison openly recognizes that her theory excludes these things. See id at 436. 82. Id. 83. See Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for IformationPrivacy,53 STAN. L. REv. 1393, 1422 (2001) ("The problem with databases emerges fromsubjecting personal information to the bureaucratic process with little intelligent control or limitation,resulting in a lack of meaningful participation in decisions about our information."). 84. RICHARD A. POSNER, THE ECONOICS OF JUSTICE 272-73 (1981).1106 CALIFORNIA LA W REVIEW [Vol. 90:1087
93. See, e.g., United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980) (findingthat agency's request for medical records to investigate work-related health hazards justified a minimalintrusion into the privacy of employees' medical records; agency had to notify the workers and givethem a chance to opt out); Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990) (findingviolation of constitutional right to privacy by police disclosing that person had AIDS); Woods v. White,689 F. Supp. 874, 876 (W.D. Wis. 1988) (finding that a prisoner has a constitutional right to privacy inhis medical records); Carter v. Broadlawns Med. Ctr., 667 F. Supp. 1269 (S.D. Iowa 1987) (finding thathospital's allowing chaplains access to medical records violated constitutional privacy). 94. Paul P. v. Vemiero, 170 F.3d 396, 404 (3d Cir. 1998) (finding that a community notificationlaw for sex offenders (known as Megan's Law) does not violate constitutional privacy becausegovernment's interest in preventing sex offenses is compelling); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997) (finding that Washington State's version of Megan's Law does not violateconstitutional privacy because the "information collected and disseminated by the Washington statute isalready fully available to the public and is not constitutionally protected"); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (holding that there is no constitutional privacy right in criminal recordsbecause "arrest and conviction information are matters of public record"); Scheetz v. The MorningCall, Inc., 946 F.2d 202, 207 (3d Cir. 1991) (finding no right to privacy for disclosure of information inpolice reports). 95. William J. Stuntz, Privacy's Problem and the Law of CriminalProcedure,93 MICH. L. REv.1016, 1022 (1995). 96. Katz v. United States, 389 U.S. 347, 351 (1967). 97. 486 U.S. 35 (1988). 98. Id. at40. 99. 488 U.S. 445 (1989).1108 CALIFORNIA LA W REVIEW [Vol. 90:1087
100. See id. at 450-51; see also California v. Ciraolo, 476 U.S. 207 (1986) (holding that FourthAmendment did not apply to surveillance of property from airplane flying at 1000 feet); Dow Chem.Co. v. United States, 476 U.S. 227 (1986) (holding that Fourth Amendment did not apply to aerialsurveillance of property with high-tech camera which could enlarge objects so that objects half an inchin diameter could be seen). 101. See, e.g., Arnold Simmel, PrivacyIs Not an IsolatedFreedom, in NoMos XIII, supra note 71,at 71, 81. Simmel observed: We become what we are not only by establishing boundaries around ourselves but also by a periodic opening of these boundaries to nourishment, to learning, and to intimacy. But the opening of a boundary of the self may require a boundary farther out, a boundary around the group to which we are opening ourselves.Id. For a theoretical discussion of group privacy, see EDWARD J. BLOUSTEIN, INDIVIDUAL AND GROUPPRIVACY 123-86 (1978). 102. See Shils, supranote 72, at 305. 103. Kenneth L. Karst, "The Files": Legal Controls Over the Accuracy and Accessibility ofStoredPersonalData, 31 LAW & CONTEMP. PROBS. 342, 344 (1966). 104. AMITAI ETZIONI, THE LIMITS OF PRIVACY 196 (1999). 105. See Solove, supranote 83, at 1439.20021 CONCEPTUALIZINGPRIVACY 1109
the Court held that the release of FBI rap sheets (containing personal in-formation from law enforcement records about millions of people) was aninvasion of privacy within the privacy exemption of FOIA. Although theinformation in the rap sheet had previously been publicly disclosed, theCourt held that "there are few facts that are not at one time or anotherdivulged to another," and that there was an important distinction "betweenscattered disclosure of the bits of information contained in a rap sheet andrevelation of the rap sheet as a whole."'1 In other words, the Court recog-nized that the accessibility of information, not the mere secrecy of it, wasimportant to protecting privacy. However, the Court has failed to recognizethis insight in other contexts. Therefore, while most theorists would recognize the disclosure of cer-tain secrets to be a violation of privacy, many commonly recognized pri-vacy invasions do not involve the loss of secrecy. Secrecy as the commondenominator of privacy makes the conception of privacy too narrow.
106. JUDITH WAGNER DECEW, IN PURSUIT OF PRIVACY: LAW, ETHICS, AND THE RISE OFTECHNOLOGY 48 (1997). 107. INNESS, supra note 3, at 6. 108. Stanley I. Benn, Privacy, Freedom, and Respect for Persons,in Nomos XIII, supranote 71, at2. 109. 489 U.S. 749 (1989). 110. Id. at 763-64.1110 CALIFORNIA LAWREVIEW [Vol. 90:1087
not deem as private. For example, the fact that a person is a well-knownpolitician is identifiable to her, but is not private. Murphy's definition thusprovides no reasonable limitation in scope. In addition to failing to adequately define the scope of information,the conceptions of privacy as control over information fail to define what ismeant by "control" over information. Theorists provide little elaboration asto what control really entails, and it is often understood too narrowly or toobroadly. Frequently, control is understood as a form of ownership in in-formation. For example, Westin concludes that "personal information,thought of as the right of decision over one's private personality, should bedefined as a property right."' This notion is partially embodied in the tortof commercial appropriation, which protects people against others' usingtheir image or likeness for commercial gain.'24 The notion that individuals have a property right in information aboutthemselves can be traced to John Locke, who asserted that individuals haveproperty rights in their person and the fruits of their labor. According toLocke, privacy flows naturally from selfhood: "[E]very man has aproperty in his own person."'25 From this principle, Locke deduced thatproperty extends to the products of one's labor: "Whatsoever then heremoves out of the state that nature hath provided, and left it in, he hathmixed his labor with, and joined it to something that is his own, and 26thereby makes it his property."' Locke's conception of property as the fruit of labor and as an exten-sion of self have formed the backbone of intellectual property law, which,as James Boyle has observed, has developed around the notion of the"romantic author," the individual who mixes her unique personality withideas, who most displays originality and novelty in her creations.2 7 Unlikephysical property, intellectual property protects the expression of ideas,"original works of authorship fixed in any tangible medium ofexpression."' 28 The "romantic author" notion of intellectual propertyembodies Locke's idea that one gains a property right in something when itemanates from one's self. Personal information as property is justified by viewing it as an exten-sion of personality. As the authors of our own lives, we generate informa-tion as we develop our personalities. The growth of individualism spawned
the "belief that one's actions and their history 'belonged' to the self whichgenerated them and were to be shared only with those with whom onewished to share them."'2 9 "One's self-for other people-is one'sexpression of one's self," observes Madame Merle in Henry James'sPortraitof a Lady, "and one's house, one's furniture, one's garments, thebooks one 0reads, the company one keeps-these things are all 13expressive. Given the unique nature of information, the extension of these con-cepts to personal information does not come without some difficulties. In-formation can be easily transmitted, and once known by others, cannot beeradicated from their minds. Unlike physical objects, information can bepossessed simultaneously within the minds of millions. This is why intel-lectual property law protects particular tangible expressions of ideas ratherthan the underlying ideas themselves. The complexity of personal informa-tion is that it is both an expression of the self as well as a set of facts, a his-torical record of one's behavior. Further, there are problems with viewing personal information asequivalent to any other commodity. Personal information is often formedin relationships with others, with all parties to that relationship havingsome claim to that information. For example, individuals are not the lonecreators of their web-browsing information, for most of that information iscreated from the interaction between the user and websites.'3 ' Often, themarket value of information is not created exclusively by the labor of theindividual to whom it relates but in part by the third party that compiles theinformation.132 For example, the value of personal information for advertis-ers and marketers emerges in part from their consolidation and categoriza-tion of that information. An example of the difficulty in assigning ownership to information isillustrated by Haynes v. Alfred A. Knopf, Inc.'33 This case involvedNicholas Lemann's highly praised book about the social and political his-tory of African Americans who migrated from the South to northern cities.The book chronicled the life of Ruby Lee Daniels, who suffered greatlyfrom her former husband Luther Haynes's alcoholism, selfishness, and ir-responsible conduct. Haynes sued the author and the publisher under thepublic disclosure of private facts tort, claiming that he had long sinceturned his life around and that the disclosure of his past destroyed the newlife he had worked so hard to construct. Judge Posner, writing for thepanel, concluded that there could be no liability for invasion of privacy
because "[a] person does not have a legally protected right to a reputationbased on the concealment of the truth"' 3 4 and because the book narrated "a 35story not only of legitimate but of transcendent public interest."' Although it did not hinge on the shared nature of the information, thiscase illustrates that personal information rarely belongs to just one individ-ual; it is often formed in relationships with others. Ruby Daniels's storywas deeply interwoven with Haynes's story. Daniels had a right to speakabout her own past, to have her story told. This was her life story, not justLuther Haynes's. In sum, understanding control as ownership presents dif-ficulties in grappling with the unique shared nature of much private infor-mation. A claim of privacy is not the same as a claim of ownership. Not only does defining control prove difficult, control over informa-tion is too broad a conception. Gerety claims that Westin's definition "onits face includes all control over all information about oneself, one's group,one's institutions. Surely privacy should come, in law as in life, to muchless than this."'136 According to Inness, not all personal information is pri-vate; she contends that "it is the intimacy of this information that identifiesa loss of privacy."'3 7 Thus one possibility is that the control-over-information conception could be limited in scope by including only inti-mate information. Even if narrowed to include only intimate information, however, theconception is still too broad. According to DeCew, we often lose controlover information in ways that do not involve an invasion of our privacy.'38To illustrate this point, Daniel Farber invokes the example of the flasher. Aflasher is controlling the visual access to his body by allowing it, yetpreventing flashing is not a violation of the flasher's privacy; rather, flash-ing is seen as a violation of the privacy of others. " 9 David O'Brien also criticizes the conception of privacy as the controlof information for being too narrow. 14 Many privacy interests involve anindividual's "freedom to engage in private activities" rather than the dis-closure or nondisclosure of information.' 4' O'Brien correctly recognizesthat privacy is invaded not just by intrusions into information but also bynuisances such as noises, smells, and other noxious disruptions of one'speace of mind. 42 As DeCew points out, the conception of privacy as con-trol over information is too narrow because privacy is not reducible to
5. Personhood Another theory of privacy views it as a form of protecting person-hood. Building upon Warren and Brandeis's notion of "inviolatepersonality," Paul Freund coined the term "personhood" to refer 1 49 to "thoseattributes of an individual which are irreducible in his selfhood.' The theory of privacy as personhood differs from the theories dis-cussed earlier because it is constructed around a normative end of privacy,namely the protection of the integrity of the personality. This theory is notindependent of the other theories, and it often is used in conjunction withthe other theories to explain why privacy is important, what aspects of theself should be limited, or what information we should have control over.
a. Individuality,Dignity, andAutonomy What is personhood? What aspects of the self does privacy protect?According to Edward Bloustein, privacy protects individuality. 50 Privacyis a unified and coherent concept protecting against conduct that is"demeaning to individuality,"15 ' "an affront to personal dignity,"'52 or an"assault on human personality."' 53 Jeffrey Reiman also recognizes apersonhood component to privacy: "The right to privacy.., protects the 1 54individual's interest in becoming, being, and remaining a person." Philosopher Stanley Benn also develops a personhood conception ofprivacy, noting that privacy amounts to respect for individuals as choos-ers: "[R]espect for someone as a person, as a chooser, implie[s] respect forhim as one engaged on a kind of self-creative enterprise, which could bedisrupted, distorted, or frustrated even by so limited an intrusion aswatching.' 55 Drawing from Jean Paul Sartre's Being and Nothingness,Benn explains that being "an object of scrutiny, as the focus of another'sattention, brings one to a new consciousness of oneself, as something seenthrough another's eyes."' 56 The observed "becomes aware of himself as anobject, knowable, having a determinate character."' 57 According to Benn,
149. Paul Freund, AMERICAN LAW INSTITUTE, 52ND ANNUAL MEETING 42-43 (1975); see alsoCraven, supra note 65, at 702 n.15 (citing Freund's formulation of personhood). 150. Bloustein, supra note 22, at 971. Bloustein's article was in response to William Prosser's1960 article, Privacy, which examined over 300 privacy cases in the seventy years since Warren andBrandeis's 1890 article and concluded that "[t]he law of privacy comprises four distinct kinds ofinvasion of four different interests of the plaintiff, which are tied together by the common name, butotherwise have almost nothing in common." Prosser, supra note 8, at 107. 151. Bloustein, supranote 22, at 973. 152. Id. 153. Id. at 974. 154. Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, inPHILOSOPHICAL DIMENSIONS OFPRIVACY, supranote 6, at 300, 314. 155. Benn, supra note 108, at 26. 156. Id.at7. 157. Id.2002] CONCEPTUALIZING PRIVACY 1117
the result is that the observed person "is fixed as something-with limitedprobabilities rather than infinite, indeterminate possibilities." ' In otherwords, Benn contends that surveillance restricts an individual's range ofchoices and thus limits her freedom. Accordingly, privacy is about respectfor personhood, with personhood defined in terms of the individual's ca-pacity to choose. The Supreme Court has espoused a personhood theory of privacy inits substantive due process decisions such as Griswold v. Connecticut,'59Eisenstadt v. Baird,6 ' Roe v. Wade,'6' and others. As early as 1891, theCourt articulated this conception in Union Pacific Railway Co. v.Botsford.62 There, in holding that a court could not compel a plaintiff in acivil action to submit to a surgical examination, the Court declared thesanctity of "the right of every individual to the possession and control ofhis own person, free from all restraint or interference of others, unless byclear and unquestionable authority of law."'63 Later cases characterizedprivacy as an "interest in independence in making certain kinds ofimportant decisions."'' Specifically, these cases involved decisions relat-ing to marriage, procreation, contraception, family relationships, and childrearing. 6 In PlannedParenthoodv. Casey,'66 the Supreme Court providedits most elaborate explanation of what the "privacy" protected by the con-stitutional right to privacy encompasses: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. 167In other words, the Court has conceptualized the protection of privacy asthe state's noninterference in certain decisions that are essential to definingpersonhood.
158. Id. 159. 381 U.S. 479 (1965) (holding unconstitutional a statute criminalizing contraceptives formarried couples because it invaded the "zone of privacy" created by the "penumbras" of the First,Third, Fourth, Fifth, and Ninth Amendments). 160. 405 U.S. 438 (1972) (extending Griswold to the use of contraceptives by nonmarriedindividuals). 161. 410 U.S. 113 (1973) (finding that the constitutional right to privacy encompasses the decisionto procure an abortion). 162. 141 U.S. 250 (1891). 163. Id. at 251. 164. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). 165. See, e.g., Roe v. Wade, 410 U.S. 113, 152-53 (1973). 166. 505 U.S. 833 (1992). 167. Id. at 851.1118 CALIFORNIA LA W REVIEW [Vol. 90:1087
Some critics complain that personhood theories, and the Court's pri-vacy cases, are really about liberty and autonomy, not about privacy. InDemocracy's Discontent, Michael Sandel argues that the Court's privacycases conflate privacy and autonomy.'68 Louis Henkin contends thatGriswold, Roe, and Baird establish "not a right to freedom from officialintrusion, but to freedom from official regulation."' ' 9 But as DeCew count-ers, there is an "intuitive notion of privacy invoked in the constitutionalprivacy cases."' 7 She argues that there is no need to view privacy as totallyexclusive from autonomy and liberty, for conceptions can overlap.'71 Theories of privacy as personhood, however, fail to elucidate whatprivacy is because the theories often do not articulate an adequate defini-tion of personhood. Freund's notion of attributes irreducible in one's self-hood is far too vague, and merely substitutes "selfhood" for "personhood."Bloustein's discussion of personhood as "individuality" fails to define thescope or nature of individuality. Other commentators define personhood asa type of autonomy, 72 but as Jed Rubenfeld observes, "to call an individual'autonomous' is simply another way of saying that he is morally free, andto say that the right to privacy protects freedom adds little to our 73understanding of the doctrine."' Personhood theories are also too broad. Our personalities are notpurely private; indeed, there is much that is unique to the self that wereadily display and express in public. An artistic work is often an expres-sion of the deepest recesses of an artist's existence; yet art is rarely exclu-sively a private affair. Gavison, for example, criticizes Bloustein's dignityconception because "there are ways to offend dignity and personality thathave nothing to do with privacy.' 74 She elaborates: "Having to beg or sellone's body in order to survive are serious affronts to dignity, but do not 75appear to involve loss of privacy."' Further, theories of privacy as personhood tell us why we value pri-vacy (to protect individuality, dignity, and autonomy), but their usual focuson limiting state intervention in our decisions often gives too little attentionto the private sector. Merely restricting state interference is not always suf-ficient to protect privacy. Therefore, beyond an account of where the stateought to leave individuals alone, personhood theories frequently fail to ex-plain how personhood is to be protected. This is essentially what Gross and
O'Brien are claiming when they criticize Bloustein for telling us only why 176we value privacy rather than what privacy is.
b. Antitotalitarianism In his influential article, The Right of Privacy, Jed Rubenfeld has pro-vided a sophisticated account of the problems of the personhood theory ofprivacy.'7 7 According to Rubenfeld, "[tihe personhood thesis is this: whereour identity or self-definition is at stake, there the state may notinterfere." ' As Rubenfeld correctly observes, the law cannot protect allforms of self-definition, for some forms conflict with others, and very fewmeaningful acts of self-definition have no effects on others."7 "Personhoodcannot exclude 'intolerant' identities without abandoning itsvalue-neutrality as between identities." 8 This fact leads Rubenfeld to con-clude that personhood's "final defense" rests on a view of what is funda- 181mentally important to individual identity. However, Rubenfeld argues, "[b]y conceiving of the conduct that itpurports to protect as 'essential to the individual's identity,' personhoodinadvertently reintroduces into privacy analysis the very premise of theinvidious uses of state power it seeks to overcome."'8 2 When the state en-deavors to protect personhood, it must adopt and enforce its ownconception of individual identity, impinging upon the freedom of individu-als to define what is central to their identities for themselves. Rubenfeld offers an alternative conception, defining the right to pri-vacy as "the fundamental freedom not to have one's life too totallydetermined by a progressively more normalizing state."' 83 Rubenfeldclaims that privacy protects against a "creeping totalitarianism, an unarmedoccupation of individuals' lives."'8 4 Privacy "is to be invoked only wherethe government threatens to take over or occupy our lives-to exert itspower in some way over the totality of our lives." ' As Rubenfeld elabo-rates, "[t]he anti-totalitarian right to privacy.., prevents the state fromimposing on individuals a defined identity."' 86
6. Intimacy An increasingly popular theory understands privacy as a form of inti-macy. This theory appropriately recognizes that privacy is not just essentialto individual self-creation, but also to human relationships. As DanielFarber correctly notes, one virtue of privacy as intimacy is that it "expand[s] moral personhood beyond simple rational autonomy."' 90 Thetheory views privacy as consisting of some form of limited access or con-trol, and it locates the value of privacy in the development of personal rela-tionships. We form relationships with differing degrees of intimacy and self-revelation, and we value privacy so that we can maintain the desired levelsof intimacy for each of our varied relationships. For example, political sci-entist Robert Gerstein claims that "intimate relationships simply could notexist if we did not continue to insist on privacy for them."19 ' As JeffreyRosen observes: "In order to flourish, the intimate relationships on whichtrue knowledge of another person depends need space as well astime: sanctuaries from the gaze of the crowd in which slow mutualself-disclosure is possible."192 By focusing on the relationship-orientedvalue of privacy, the theory of privacy as intimacy attempts to define whataspects of life we should be able to restrict access to, or what informationwe should be able to control or keep secret. In Privacy, Intimacy, andIsolation, philosopher Julie Inness advancesan intimacy conception of privacy: [T]he content of privacy cannot be captured if we focus exclusively on either information, access, or intimate decisions because privacy involves all three areas.... I suggest that these apparently disparate areas are linked by the common denominator of intimacy-privacy's content covers intimate information, access, and decisions."193In contrast to many proponents of privacy as intimacy, Inness recognizesthe need to define intimacy. She notes that there are two ways to do so: bylooking at behavior or by looking at motivations. She rejects an empiricalexamination of particular instances of human behavior as inadequate todefine intimacy. This is because these behaviors "lack an intimate essence"and a theory that looks to behaviors could not account for the fact that in-timacy "is not static across time or culture."194 ' According to Inness,
access to our bodies does not define sexual intimacy. If this were the case, a doctor's examination of our genitals would be intimate. 2 4 Thus Reiman criticizes Fried and Rachels for focusing too heavily on the notion of con-trol and limited access rather than on the attributes of intimate relation- ships. Tom Gerety also bases his formulation of privacy on intimacy. Begin-ning with the criticism that existing theories of privacy are far too broadbecause they lack any meaningful limitation in scope, he goes on to claimthat "[i]ntimacy is the chief restricting concept in the definition ofprivacy."2 5 Intimacy is "the consciousness of the mind in its access to its own and other bodies and minds, insofar, at least, as these are generally orspecifically secluded from the access of the uninvited."2 6 In other words,his definition of intimacy is a form of limited access to the self. However,this definition fails for the same reasons the limited-access conceptionsfail: it does not adequately provide us with a scope and content to privacy.Gerety attempts to develop his definition of intimacy a bit further, discuss-ing it later in his essay in terms of its expressiveness of individual identityand autonomy. He thus claims that abortion is a private decision because itis "an intimate one, expressive of both [a woman's] identity and herautonomy. 207 But Gerety's intimacy theory of privacy, like the theories he critiques,is too broad. Gerety attempts to limit privacy with the terms "identity" and"autonomy," but these are very broad terms that could apply to almostevery action or decision an individual undertakes. While Gerety complainsabout overbroad conceptions of privacy that have no meaningful limitation,his conception suffers from the same defect. Without limitations in scope,the word "intimacy" is merely a different word for "privacy," and is cer-tainly not sufficient as a way to determine which matters are private. On the other hand, privacy-as-intimacy theories are too narrow be-cause they focus too exclusively on interpersonal relationships and the par-ticular feelings engendered by them. Although trust, love, and intimacy arefacilitated by privacy, these are not the sole ends of privacy. As DeCewpoints out, information about our finances is private yet not intimate.20 8Trust, love, and caring are not broad enough to comprise a conception ofprivacy; although privacy helps us achieve these ends, these ends do notcomprise a complete conception of privacy. As Farber notes, there aremany sexual relationships devoid of love, liking, or caring as there are
many acts expressive of love, liking, or caring (such as buying gifts) thatare not considered intimate.2" 9 Furthermore, privacy's value does not lie exclusively in the develop-ment of intimate human relationships. Intimacy captures the dimension ofthe private life that consists of close relationships with others; but it doesnot capture the dimension of private life that is devoted to the self alone.As Weinstein observes: [T]here is a wide range of instances where to speak of something as private is not to imply intimacy. Individuals not intimately related may nevertheless assert that their relation or activity is a private one in the sense that it is not the proper concern of the community or some institution, such as the state, a church, or a business 2 10 firm.For example, as political scientist Priscilla Regan notes, computer data-bases pose a significant threat to privacy but "do not primarilyaffect.., relationships of friendship, love, and trust. Instead, these threatscome from private and governmental organizations-the police, welfare 21agencies, credit agencies, banks, and employers." In sum, privacy-as-intimacy conceptions can be too broad if they donot adequately define the scope of "intimacy." Most often, however, suchconceptions are too narrow because they exclude many matters that do notinvolve loving and caring relationships.
to"2 14-- rights which she claims "are analogous to fights we have over our 215property. However, reductionists assume without sufficient justification thatprivacy derives from other more primary conceptions rather than viceversa. 21 6 They attempt to carve up the conceptual landscape as colonistsdivide conquered territory on a map. Although privacy overlaps with otherconceptions, it does seem to reveal certain dimensions of experience thatare not displayed in the same way by other conceptions. Wittgensteinspeaks of conceptions as ways of seeing things, 217 and a difference in per-spective and focus is not irrelevant. Other scholars also recognize that privacy cannot be consolidated intoa single conception, and instead they cluster together certain of the concep-tions.21 ' For example, Jerry Kang defines privacy as a union of three over-lapping clusters of ideas: (1) physical space---"the extent to which anindividual's territorial solitude is shielded from invasion by unwantedobjects or signals"; (2) choice--"an individual's ability to make certainsignificant decisions without interference"; (3) flow of personal informa-tion--"an individual's control over the processing-i.e., the acquisition,disclosure, and use-of personal information."219 According to DeCew, there are three overlapping "clusters of privacyclaims": informational privacy, accessibility privacy, and expressiveprivacy.220 Informational privacy involves "control over information aboutoneself. '221 Accessibility privacy is the limited-access concep-tion: "accessibility privacy focuses not merely on information orknowledge but more centrally on observations and physical proximity. 2 22Expressive privacy "protects a realm for expressing one's self-identity orpersonhood through speech or activity. 223 Thus, DeCew combines threetheories of privacy: (1) control over information; (2) limited access; and (3) personhood.
224. Although there are many interesting affinities in the thought of Wittgenstein and thepragmatists, there are many differences as well, and a complete account of the similarities anddifferences is beyond the scope of this Article. For some interesting examinations of the relationshipbetween pragmatic and Wittgensteinian thought, see HILARY PUTNAM, PRAGMATISM 27-56 (1995);RORTY, supranote 18, at 19-36; SHUSTERMAN, supra note 18, at 17-64. 225. Stanley Cavell, Excursus on Wittgenstein's Vision ofLanguage, in THE NEW WITTGENsTaIN35 (Alice Crary & Rupert Read eds., 2000). 226. Id. 227. WITTGENSTEIN, supra note 16, 67.2002] CONCEPTUALIZING PRIVACY 1127
fixed entities, and must be created from within concrete situations and con-stantly tested and shaped through an interaction with concrete situations. 45 Therefore, this Article advances an "approach" to understanding pri-vacy rather than a definition or formula for privacy. It is an approach be-cause it does not describe the sum and substance of privacy but providesguidance in identifying, analyzing, and ascribing value to a set of relateddimensions of practices. An approach to conceptualizing privacy shouldaid in solving problems, assessing costs and benefits, and structuring socialrelationships. My approach is from the bottom up rather than the top downbecause it conceptualizes privacy within particular contexts rather than inthe abstract.
A. PrivacyandPractices1. Social Practices With its emphasis on the concrete, the factual, and the experiencedsituations, pragmatism locates the starting point for theorizing in specificcontexts. Conceptualizing privacy is about understanding and attempting tosolve certain problems. I contend that privacy problems involve disruptionsto certain practices. By "practices," I am referring broadly to various ac-tivities, customs, norms, and traditions. Examples of practices include writ-ing letters, talking to one's psychotherapist, engaging in sexual intercourse,making certain decisions, and so on. Privacy is a dimension of these prac-tices, and under my approach, privacy should be understood as part ofthese practices rather than as a separate abstract conception. As Robert Postaptly notes, privacy "cannot be reduced to objective facts like spatialdistance or information or observability; it can only be understood byreference to norms of behavior."246'
245. See JoHN DEWEY, Essays on Pragmatism and Truth, in 4 THE MIDDLE W'/oRKS OF JOHNDEWEY 100 (Jo Ann Boydston ed., 1977). 246. Robert C. Post, The Social Foundationsof Privacy: Community and Self in the Common LawTort, 77 CALF. L. REv. 957, 969 (1989).1130 CALIFORNIA LA W REVIEW [Vol. 90:1087
247. See, e.g., DAVID H. FLAHERTY, PROTECTING PRIVACY IN SURVEILLANCE SOCIETIES 9 (1989)(explaining how surveillance can lead to conformity); Kang, supra note 131, at 1260 (describing howsurveillance can lead to self-censorship); Paul M. Schwartz, Privacy and Participation:PersonalInformation and Public Sector Regulation in the United States, 80 IOWA L. REV. 553, 560 (1995)(articulating how surveillance can inhibit free choice). For an extensive discussion of the effects ofsurveillance, see DAVID LYON, SURVEILLANCE SOCIETY: MONITORING EVERYDAY LIFE (2001); GaryT. Marx, Electric Eye in the Sky: Some Reflections on the New Surveillance and PopularCulture, inCOMPUTERS, SURVEILLANCE, AND PRIVACY 193 (David Lyon & Elia Zureik eds., 1996).2002] CONCEPTUALIZINGPRIVACY 1131
structure society in a particular way (by restricting the power of the gov-ernment or employers). Turning our focus from disruptions to the practices they disrupt, weoften refer to aspects of these practices as "private matters." In otherwords, we say that certain things, places, and affairs are "private." For along time, philosophers have discussed what has become known as thepublic and the private spheres.248 Boundaries between the public and pri-vate spheres create the conditions for developing or expressing various as-pects of selfhood, forming certain kinds of interpersonal relationships, aswell as engaging in certain forms of political activity. The notion of public and private spheres understands privacy by wayof a spatial metaphor. Often, theorists speak of privacy as a spatial realm, asort of bubble zone that surrounds a person. According to legal theoristMilton Konvitz, privacy "is the claim that there is a sphere of space thathas not been dedicated to public use or control."'24 9 According to ArnoldSimmel, a sociologist, we establish: [a] territory.., that is peculiarly our own. Its boundaries may be crossed by others only when we expressly invite them. Within these boundaries our own interests are sovereign, all initiative is ours, we are free to do our thing, insulated against outside influence and observation. This condition of insulation is what we call privacy.25 The Supreme Court has often spoken of "zones" of privacy, understanding 2 1lprivacy by way of the spatial metaphor. Although it is difficult to talk about privacy without invoking somenotion of space, the metaphor of space has significant limitations. As LloydWeinreb explains, reference to privacy as a "space" is metaphorical onlyand this metaphor is not very helpful because it "does not specify at all theshape or dimensions of the space or what it contains. 252 Privacy is notsimply a form of space. An important dimension of privacy is informa-tional control, which does not readily translate into spatial terms. Further,Katrin Byford aptly points out that this conception of privacy has difficultygrappling with the problems of privacy in cyberspace since cyberspace isnot a physical space: "A territorial view of privacy, which associates the
248. See, e.g., HANNAH ARENDT, THE HUmAN CONDITION (1958); JORoEN HABERMAS, THESTRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE (Thomas Burger trans., 1991); JOHN STUARTMILL, ON LIBERTY 11-13,75-77 (Norton ed. 1975). 249. Milton R. Konvitz, Privacy and the Law: A PhilosophicalPrelude,31 LAW & CONTEMP.PROBS. 272, 279-80 (1966); see also Jourard, supra note 88, at 318 ("In short, privacy is experienced as'room to grow in,' as freedom from interference, and as freedom to explore, to pursue experimentalprojects in science, art, work, play, and living."). 250. Simmel, supra note 101, at 71, 72. 251. See, e.g., Roev. Wade, 410 U.S. 113 (1973). 252. Lloyd L. Weinrib, The Right to Privacy, in THE RIOHT TO PRIVACY 25, 34 (Ellen FrankelPaul et al. eds., 2000).1132 CALIFORNIA LAW REVIEW [Vol. 90:1087
2. HistoricalDevelopment of PrivacyPractices It is reductive to carve the world of social practices into two spheres,public and private, and then attempt to determine what matters belong ineach sphere. First, the matters we consider private change over time. Whilesome form of dichotomy between public and private has been maintainedthroughout the history of Western civilization,254 the matters that have beenconsidered public and private have metamorphosed throughout history dueto changing attitudes, institutions, living conditions, and technology. Thematters we consider to be private are shaped by culture and history, andhave differed across cultures and historical epochs. Second, although certain matters have moved from being public tobeing private and vice versa, the change often has been more subtle than acomplete transformation from public to private. Particular matters havelong remained private but in different ways; they have been understood asprivate but because of different attributes; or they have been regarded asprivate for some people or groups but not for others. In other words, to saysimply that something is public or private is to make a rather general claim;what it means for something to be private is the central question. We con-sider our Social Security number, our sexual behavior, our diary, and ourhome private, but we do not consider them private in the same way. Anumber of aspects of life have commonly been viewed as private: thefamily, body, and home to name a few. To say simply that these things areprivate is imprecise because what it means for them to be private is differ-ent today than it was in the past. I will demonstrate my point by tracing abrief genealogy of the privacy of the family, body, and home.
a. Family The family, viewed as the heart of the private sphere, was not alwaysa sanctuary for privacy. Today, we often view the family as an institution
253. Katrin Schatz Byford, Privacy in Cyberspace: Constructing a Model of Privacyfor theElectronic CommunicationsEnvironment, 24 RUTGERS COMPUTER & TECH. L.J. 1, 40 (1998). 254. Georges Duby, Foreword to A HISTORY OF PRIVATE LIFE I: FROM PAGAN ROME TOBYZANTIUM, at viii (Paul Veyne ed. & Arthur Goldhammer trans., 1987).2002] CONCEPTUALIZING PRIVACY 1133
of intimacy, where a nuclear family lives together in the home, and has (orstrives toward) a loving relationship. Further, the family is seen as gener-ally enhancing individual self-realization. However, for much of Western history (and still today in some cul-tures), entry into marriage was not considered to be an individual autono-mous choice based on selfhood-enhancing criteria. For many, marriagesoccurred not out of love or free choice, but were primarily controlled byparents and governed by economic and strategic concerns. 5 Marriage wasnot an institution to develop the self through an intimate relationship withone's family, but a set of social responsibilities and impediments to indi-vidual self-development. In the world of the family, the individual was notfree but regulated by different forms of authority," 6 particularly forwomen, for whom marriage was often a life of submission. Indeed, thefamily was viewed as the locus of social control, a miniature monarchyruled by the patriarch.25 7 For the expanding bourgeois, family life was inex-tricably linked to professional life.25 8 The family was a business asset usedin public commerce, a network of connections and interdependent reputa-tions built upon conformity to social norms. 259 The family existed for"sociability rather than privacy. 260 Of course, I am making broad generalizations, as certainly numerousfamilies were not devoid of love, many marriages were initiated throughindividual choice, and many women were not completely subservient to themen in the household. My point is that in earlier times, certain attitudes andpractices regarding the nature of the family were more prevalent andwidely accepted than they are today. Beginning in the nineteenth century, the family increasingly becamemore conducive to the private life of the individual,26' gradually shiftingfrom an economic institution to a place of intimacy and self-fulfillment.262
263. Lawrence Stone, The Public and the Private in Stately Homes of England, 1500-1990, 58Soc. RES. 227, 233 (1991). 264. Perrot, Roles and Characters,supranote 262, at 181. 265. Hareven, supra note 260, at 257. 266. ALLEN, supra note 62, at 69; see generally HENRIK HARTOG, MAN AND WIFE INAMERICA: A HISTORY (2000). 267. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogativeand Privacy, 105 YALEL.J. 2117, 2122 (1996). 268. Seeid, at2118. 269. Seeid. at2152. 270. State v. Hussey, 44 N.C. 123, 126-27 (1852). 271. Siegel, supra note 267, at 2158. 272. The most prominent of these theorists is Catharine MacKinnon, who argues: For women the measure of the intimacy has been the measure of the oppression.... This is why feminism has seen the personal as the political. The private is public for those for whom the personal is political. In this sense, for women there is no private, either normatively or empirically. Feminism confronts the fact that women have no privacy to lose or to guarantee.CATHARINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 191 (1989). For an overview ofthe feminist critique of privacy, see PATRICIA BOLING, PRIVACY AND THE POLITICS OF INTIMATE LIFE(1996); DECEW, supranote 106, at 81-94. For a critique of MacKirmon, see ALLEN, supra note 62; RuthGavison, Feminism and the Public/PrivateDistinction,45 STAN. L. REV. 21 (1992).2002] CONCEPTUALIZINGPRIVACY 1135
That privacy of the family once meant the noninterference of the statein domestic affairs does not mean that this is inherently what privacy of thefamily means today. In contemporary American society, we accept greatergovernment intervention in spousal relationships as well as in child rearing.To argue that there is less privacy of the family today because of this de-velopment is too broad a claim. To the extent that family privacy consistsof attributes such as independence, freedom of thought, freedom from co-ercion, self-development, and pursuing activities of personal interest, gov-ernment intervention actually can enhance privacy.
b. Body The evolution of attitudes toward the body is also instructive. Forquite some time, theorists have viewed the body as at the core of privacy." 3As the Supreme Court declared: "No right is held more sacred, or is morecarefully guarded by the common law, than the right of every individual tothe possession and control of his own person."'74 The claim that the body is"private" is really a claim about certain practices regarding the body, suchas concealment of certain bodily parts, secrecy about certain diseases andphysical conditions, norms of touching and interpersonal contact, and indi-vidual control and dominion over decisions regarding one's body. AsRadhika Rao explains, the constitutional right to privacy is often character-ized by the notion of self-ownership of the body, the notion that a personbelongs to herself.2 5 These attributes were certainly not always associatedwith the body. Although we currently associate the body with concealment(we hide the nude body from others under layers of clothes), the nakedbody was far from private in ancient Greece and Rome.276 Richard Sennettobserves that in ancient Athens, the public display of the naked body"marked the presence of a strong rather than vulnerable person-and more,someone who was civilized." '77 Public nudity "affirmed one's dignity as acitizen." ' In the Middle Ages, it was not uncommon for people to bathe in
273. Gerety claims that any concept of privacy "must take the body as its first and most basicreference for control over personal identity." Gerety, supra note 6, at 266 & n. 119. 274. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250,251 (1891). 275. Radhika Rao, Property,Privacy, and the Human Body, 80 B.U. L. Rav. 359 (2000). Raocritiques the tendency to reduce one's control over one's body to a simple property right. "[P]rivacytheory entitled the body to protection as the physical embodiment of a person, the subject of a privacyinterest, whereas property theory reduces the body to a mere object of ownership." Id. at 445. 276. Peter Brown, Late Antiquity, in A ISTORY OF PRIVATE LIE I, supra note 254, at 245-46. 277. RIcHARD SENNETT, FLESH AND STONE: THE BODY AND THE CITY IN WESTERNCIVILIzATIoN 33 (1994). "Athenian democracy placed great emphasis on its citizens exposing theirthoughts to others, just as men exposed their bodies. These mutual acts of disclosure were meant todraw the knot between citizens ever tighter." Id. Public nudity was limited to men. Women did notdisplay their naked bodies in public. See id. at 34. 278. Id.; see also Marie A. Failinger, Five Modern Notions in Search of an Author: The IdeologyofIntimateSociety in ConstitutionalSpeech Law, 30 U. TOL. L. REV. 251 (1999).1136 CALIFORNIA LA WREVIEW [Vol. 90:1087
front of others,27 9 and bathing was often part of celebrations and socialcongregation. 8 0 Norms of interpersonal contact and nudity gradually shifted towardmore concealment and distancing from others. In the Renaissance, amongthe wealthy (and spreading to the middle class), people tried to distancethemselves from their body and other's bodies: "men and women becomemore secretive and modest about bodily functions; they ceased to sharebeds with strangers at home, at school, or in inns. They ceased to eat anddrink out of communal dishes and cups, which might contain traces ofsaliva of others. ' 28 ' After the sixteenth century, people became quiteguarded about their bodies and reserved about their touching of others. 82 Another contemporary association is between the body and conceal-ment of certain bodily functions such as urination, defecation, and copula-tion. In the seventeenth century, it was not anomalous for people to chatwith friends while sitting above a chamber pot.283 Before the late nineteenthcentury, poor families (close to half of the population of England) lived inone room and had to urinate, defecate, and copulate in view of others.2"4This practice varied depending upon the wealth of families and where theylived. Families in urban areas often did not have a privy in the rear of theirhomes. As Lawrence Stone observes, "Up to the end of the eighteenthcentury, close-stools and chamber pots had been scattered randomly aboutthe house in the public rooms, a system which afforded little or no 'privacy. We also currently associate the body with individual control and do-minion. Although many subscribe to John Stuart Mill's observation that theindividual is "sovereign" over her body,286 for a long time, people viewedtheir body (in particular, their blood) as belonging in part to the family andtheir ancestors.287 As attitudes toward the family changed and with newconceptions of individual identity, people began to view the body as theirown possession. 288
c. Home A final example best illustrates the points I am attempting tomake: the home, often viewed as the quintessential place of privacy. Tosay the home is a "private" place is imprecise, because although it has longbeen viewed as a private space, it was so in a different way than it is now. For a long time, the home has been regarded as one's "castle,"28' 9where the individual enjoyed a freedom from government intrusion. Asearly as 1886, in Boyd v. United States,"'0 the Court strictly protected "thesanctity of a man's home.""29 The Court's worship of the home has not wa-vered, and almost a century later, the Court reiterated its staunch protectionof the home: "In none is the zone of privacy more clearly defined thanwhen bounded by the unambiguous physical dimensions of an individual'shome.""9 2 This association has existed for a significant time and is embod-ied in the Third Amendment's prohibition of the quartering of troops inhomes during peacetime, 93 and the Fourth Amendment's prohibition ofunreasonable searches and seizures.294 As the Court declared: "The FourthAmendment, and the personal rights which it secures, have a long history.At the very core stands the right of a man to retreat into his own home andthere be free from unreasonable governmental intrusion.2 9 5 Although the home was long associated as being a haven from thegovernment, it still was not a place of solitude or individualself-development that it is today. Currently, the home is a place where thepublic is physically locked out. 296 According to Justice Douglas, "[t]hehome of course is the essence of privacy, in no way dedicated to publicuse, in no way extending an invitation to the public." 97 The home is under-stood as a place where individuals retreat to find peace of mind and to
289. See RICHARD F. HIXSON, PRIVACY IN A PUBLIC SOCIETY: HUmAN RIGHTS IN CONFLICT 13(1987). The maxim that the home is one's castle appeared as early as 1499. See Note, The Right toPrivacy in Nineteenth Century America, 94 HARv. L. REv. 1892, 1894 (1981). The first recorded casein which this notion was mentioned was Semayne's Case, 77 Eng. Rep. 194, 195 (K.B. 1604) ("[T]hehouse of every one is to him as his castle and fortress."). In the eighteenth century, William Blackstonedeclared that the law has "so particular and tender a regard to the immunity of a man's house that itstiles it his castle, and will never suffer it to be violated with impunity." 4 WILLIAM BLACKSTONE,COMMENTARIES ON THE LAws OF ENGLAND 223 (1769). The maxim that the home is one's castlebecame widely used in the United States during the nineteenth century. See id. at 1894 n.18. 290. 116 U.S. 616 (1886). 291. Id. at 630. 292. Payton v. New York, 445 U.S. 573, 589 (1980). 293. U.S. CONST. amend. III. 294. U.S. CONST. amend. IV. 295. Silverman v. United States, 365 U.S. 505, 511 (1961). 296. Minnesota v. Carter, 525 U.S. 83, 107 (1998) (Ginsburg, J., dissenting) ("Our decisionsindicate that people have a reasonable expectation of privacy in their homes in part because they havethe prerogative to exclude others."). 297. Bell v. Maryland, 378 U.S. 226,253 (1964) (Douglas, J., concurring).1138 CALIFORNIA LAW REVIEW [Vol. 90:1087
298. As William Pitt once remarked: "The poorest man may in his cottage bid defiance to theCrown. It may be frail-its roof may shake-the wind may enter-the rain may enter-but the King ofEngland cannot enter-all his force dares not cross the threshold of the rined tenement!" CHARLES J.SYKES, THE END OF PRIVACY 83 (1999). 299. Michelle Adams, Knowing Your Place: Theorizing Sexual Harassmentat Home, 40 Aiz. L.REv. 17, 23-24 (1998). 300. 394 U.S. 557 (1969). 301. Id. at 565. 302. Hareven, supra note 260, at 254. 303. Id. at 255. 304. Id. at 256. 305. Id. 306. Willaim H. Gass, Making Ourselves Comfortable,N.Y. TIMES, Aug. 3, 1986, 7 at I. 307. RYBCZYNSKI, supra note 279, at 25.2002] CONCEPTUALIZING PRIVACY 1139
more large families. 3" Dwelling places were noisy, built of creaky woodwith cracks and peepholes, equipped with no soundproofing to stop noisefrom echoing throughout the home.3 9 Beds were large, scarce, andcrammed with multiple people. 30 Not only would a couple sleep with theirchildren, but even guests would share the bed.3" Even among the Puritansof colonial New England, a couple would think nothing of sleeping in thesame bed with another adult.3 2 Before the development of specializedrooms, beds were placed in public areas and "family members slept behindcurtains while social activities including outsiders were going on in other 313parts of the same room. Beginning in the seventeenth century, homes began to be partitionedinto rooms, each assigned a distinct purpose and some even becoming per-sonalized according to their occupants.31 4 As specialized rooms becamemore prevalent, "bedrooms were no longer mixed up with public rooms,and began to be concentrated upstairs."3 5 Even with rooms, solitude wouldoften be disrupted because there were no corridors, and people would shuf-fle through rooms to move about the house.316 Although solitude within the home developed first among thewealthy,31 7 there were special impediments to making the home a place of
308. FLAHERTY, supra note 257, at 45. In eighteenth century New England, for example, familieswere twice as large on average as they are today, and a significant number of homes housed more thanone family. See id. at 47. 309. As one historian observes about living quarters in Renaissance Europe: "An apartmentbuilding was a public theater. Some held forth, others squabbled, but no one had any privacy. Maritaldisputes, illicit love affairs, noisy tenants, restless children-nothing could be concealed and everythingcould be heard." Arlette Farge, Community, State, and Family: Trajectoriesand Tensions: The Honorand Secrecy of Families, in A HISTORY OF PRIVATE LIFE III, supra note 261, at 575-76. In colonialNew England, most houses were built entirely of wood. Spying on others was easy, and sound carriedreadily throughout the house. See FLAHERTY, supranote 257, at 43-44. 310. See, e.g., RYBCZYNSKI, supranote 279, at 28. 311. FLAHERTY, supra note 257, at 76. Crowded beds were due to the scarcity of beds and theneed for warmth. See id. at 78. At inns, strangers would sometimes share the same bed. See Go-rrLaB,supranote 261, at 41. 312. Id. at 76. 313. Hareven, supranote 260, at 257. 314. RYBCZYNSKI, supra note 279, at 18; see also FLAHERTY, supra note 257, at 34 (describingcrowded one-room homes of sixteenth and seventeenth century England). Even in the sixteenthcentury, most homes lacked separate rooms. RYBCYNSKI, supra note 279, at 18. When rooms wereassigned purposes, the house became divided into distinct areas for women and men. See Hall, supranote 262, at 91. Houses in America followed this same pattern of development. FLAHERTY, supranote257, at 33-44. 315. Stone, supranote 263, at 237. 316. FLAHERTY, supra note 257, at 40; see also RYBCZYNSKI, supra note 279, at 41 ("There wereno corridors in these houses-each room was connected directly to its neighbor-and architects pridedthemselves on aligning all the doors enfilade, so that there was an unobstructed view from one end ofthe house to the other."). 317. Only the aristocracy could afford to purchase the space necessary to maintain privacy. "Thewealthy naturally increased the amount of private space available to them, but for the rest of thepopulation, the vast majority, the idea of privacy did not extend beyond the bedroom, and perhaps not1140 CALIFORNIA LA W REVIEW [Vol. 90:1087
beyond the bed curtains." Orest Ranum, Forms of Privatization: The Refuges of Intimacy, in AHISTORY OF PRIVATE LIFE III, supra note 261, at 225. The rise of the bourgeoisie made solitude morewidely available. See JOSEPH BENSMAN & ROBERT LILIENFELD, BETWEEN PUBLIC AND PRIVATE: THELOST BOUNDARIES OF THE SELF 31 (1979). 318. Stone, supranote 263, at 227. 319. Id.at 232-33; see also GOTTLIEB, supra note 261, at 39-40. 320. Stone, supranote 263, at 234. 321. Id.at 243; Georges Duby, Preface,in A HISTORY OF PRIVATE LIFE 1I,supra note 256, at xii. 322. GINI GRAHAM SCOTT, MIND YOUR OWN BUSINESS: THE BATTLE FOR PERSONAL PRIVACY32 (1995); FLAHERTY, supra note 257, at 40. 323. Roger Chartier, Figures of Modernity: The PracticalImpact of Writing, in A HISTORY OFPRIVATE LIFE Il, supra note 261, at 134. The study was a private place for the master of the houseonly; women had no comparable private room of their own. See Philippe Braunstein, TowardIntimacy: The Fourteenthand Fifteenth Centuries, in A HISTORY OF THE PRIVATE LIFE I, supra note256, at 538. The study became so private that it was used to store the master's secret letters ofextramarital affairs. See Ranum, supranote 317, at 226-27. 324. Shils, supra note 72, at 289. 325. Aris, supranote 282, at 1-2. 326. Hareven, supra note 260, at 259.2002] CONCEPTUALIZING PRIVACY 1141
Even though certain matters and activities were not private in the waywe understand them today, one could claim that we always desired them tobe so, that such desire stems from biological need, and that this explainswhy they became private when technology or other practices enabled thisto occur. Perhaps the interaction of biological desire and social practicescreates the desire for privacy in certain contexts. Further sociological studyis necessary to understand the origin of the desire for privacy in particularsituations. This question, however, should not detract our focus from prac-tices. Even if the privacy of certain matters stems in part from biologicaldesire, we control our desires through practices, and a mere desire forprivacy for a certain activity does not necessarily make such an activityprivate.
329. See Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979) ("[W]here an individual's subjectiveexpectations had been 'conditioned' by influences alien to well-recognized Fourth Amendmentfreedoms, those subjective expectations obviously could play no meaningful role in ascertaining whatthe scope of Fourth Amendment protection was."). 330. SMITH, supra note 48, at 23-25. 331. Id. at 50-51. For an extensive discussion of the privacy of letters in colonial America, seeFLAHERTY, supranote 257, at 115-27.2002] CONCEPTUALIZING PRIVACY 1143
protected only by a seal, should travel safety from one end of the world tothe other, without anyone whose hands it had passed through havingmeddled with it."332' Despite these realities, and people's expectation that
letters would not be confidential, the law evolved to provide strong protec-tion of the privacy of letters. Benjamin Franklin, who was in charge of the 333colonial mails, required his employees to swear an oath not to open mail.In the late eighteenth and early nineteenth centuries, Congress passed sev-eral laws prohibiting the improper opening of mail.334 And the SupremeCourt held in 1877 that despite the fact that people turned letters over tothe government for delivery in the postal system, sealed parcels were pro-tected from inspection by the Fourth Amendment. 335 This example illus-trates that privacy is not just found but constructed. By erecting a legalstructure to protect the privacy of letters, our society shaped the practicesof letter writing and using the postal system. It occurred because of the de-sire to make privacy an integral part of these practices rather than to pre-serve the status quo. Therefore, determining what the law should protect as private dependsupon a normative analysis, which requires us to examine the value of pri-vacy in particular contexts. To do this, we must focus on our practices-specifically, the nature of privacy in these practices, the role that privacyplays in these practices, and the ends that these practices further. Thus, thevalue of privacy is an important dimension of conceptualizing privacy, andI now turn to this issue.
the privacy practices of the home. One such purpose is one's ability in thehome to escape from the hustle and bustle of the everyday world. Often,conflicting values clash with our desire to protect this purpose, such as thefree speech rights of people to protest outside a person's home or to broad-cast into the home certain potentially offensive television and radio mes- 33 7sages. Given the value of a particular practice, we must ask to what extentprivacy is a dimension of that practice and, if so, how it impacts that prac-tice. If privacy impacts the practice in a negative way, then less privacywould be desirable. If privacy furthers a desirable practice (or is so consti-tutive of the practice that the practice would be impossible without it), thenprivacy should be recommended. The way we shape practices depends upon our vision of the good,which informs how we wish to structure power in society and how we wantto empower the self. The approach I advocate does not look to history tolocate certain matters that always have been private; rather it looks to his-tory to understand the development of certain practices and the manner inwhich power is exercised in society. Of course, the current practices of society have significant weight inwhat we should protect as private. We may think that privacy is an unde-sirable dimension of a certain practice or that a practice involving privacyis undesirable in its totality, but we must also recognize the costs of dis-rupting these practices. One such cost is that unsettling existing practicescan thwart people's ability to exercise control over their lives. Although wemight think that society would be better off if all medical information werepublic, the fact that most people take great pains to keep this informationsecret cannot be ignored. A law that runs counter to this practice couldcreate profound psychological distress as well as changes in behavior thatresult in restricting personal freedom. Of course, I am not suggesting thatwe must avoid interfering with existing practices; however, our policy de-cisions must account for the effects of such interference on people'spsychological well-being. Disruptions to certain practices affect otherpractices, and in many cases, affect the welfare, psyche, and freedom ofindividuals. How, then, is privacy to be valued? First, I contend that privacyshould be valued instrumentally. Second, in contrast to the discourse's
337. See Frisby v. Schultz, 487 U.S. 474 (1988) (finding constitutional an ordinance prohibitingpicketing on public streets in front of a specific residence because privacy interests are of the highestorder and people are captive audiences in their homes); FCC v. Pacifica Found., 438 U.S. 726 (1978)(holding that broadcast of George Carlin's seven dirty words on the radio could be restricted to certaintimes of the day because people who unwittingly heard the monologue were a captive audience untilthey had time to switch to a new station); Martin v. City of Struthers, 319 U.S. 141 (1943) (holding thatordinance prohibiting door-to-door solicitation to prevent annoyance and crime was unconstitutionalbecause less restrictive alternatives were available).2002] CONCEPTUALIZINGPRIVACY 1145
tendency to value privacy in a general and abstract way, I argue that pri-vacy must be valued contextually. My first contention concerns the general method of valuation. Accord-ing to many theorists, privacy has an intrinsic value, an inherently positivevalue.338 Ronald Dworkin, one of the principal proponents of intrinsicvalue, argues that certain things "are valuable in themselves and not justfor their utility or for the pleasure or satisfaction they bring us."33 9 Severalprivacy scholars who claim that privacy is valuable in itself locate thesource of the value in a form of respect that must be provided to all rationalbeings. According to Stanley Benn: "[R]espect for someone as a person, asa chooser, implie[s] respect for him as one engaged on a kind ofself-creative enterprise, which could be disrupted, distorted, or fiustratedeven by so limited an intrusion as watching. 340 "[P]rivacy is valuable,"Julie Inness claims, "because it acknowledges our respect for persons asautonomous beings with the capacity to love, care and like-in otherwords, persons with the potential to freely develop close relationships. ' '341 However, along with other scholars, 342 I contend that privacy has aninstrumental value-namely, that it is valued as a means for achieving cer-tain other ends that are valuable. As John Dewey observed, ends are notfixed, but are evolving targets, constantly subject to revision and change asthe individual strives toward them. 343 "Ends are foreseen consequenceswhich arise in the course of activity and which are employed to giveactivity added meaning and to direct its further course. ' 3 4 In contrast to many conceptions of privacy, which describe the valueof privacy in the abstract, I contend that there is no overarching value ofprivacy. For example, theories of privacy have viewed the value of privacyin terms of furthering a number of different ends. Fried claims that privacyfosters love and friendship. Bloustein argues that privacy protects dignityand individuality. Boling and Inness claim that privacy is necessary forintimate human relationships. According to Gavison, privacy is essentialfor autonomy and freedom. Indeed, there are a number of candidates forthe value of privacy, as privacy fosters self-creation, independence,
338. Byford, supra note 253, at 6 (contending that privacy has an "inherently positive value"). 339. RONALD DWORKIN, LIFE's DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA,AND INDIVIDUAL FREEDOM 69-70 (1993). 340. Benn, supra note 108, at 26. 341. INNESS, supranote 3, at 95. 342. See, e.g., WESTIN, supra note 4, at 39 ("[P]rivacy is neither a self-sufficient state nor an endin itself, even for the hermit and the recluse. It is basically an instrument for achieving individual goalsof self-realization."); Gavison, supra note 1, at 442 (arguing that "we cannot avoid a functionalanalysis" of the value of privacy). 343. JOHN DEWEY, Human Nature and Conduct, in 14 THE MIDDLE WORKS OF JOHN DEWEY 155(Jo Ann Boydston ed., 1988). 344. Id.1146 CALIFORNIA LA W REVIEW [Vol. 90:1087
C. PracticalApplications Why should scholars and judges adopt my approach to conceptualiz-ing privacy? To deal with the myriad of problems involving privacy, schol-ars and judges will have to adopt multiple conceptions of privacy, or elsethe old conceptions will lead them astray in finding solutions. The Court's1928 decision in Olmstead v. United States345 epitomizes the need forflexibility in conceptualizing privacy. The Court held that the wiretappingof a person's home telephone (done outside a person's house) did not runafoul of the Fourth Amendment because it did not involve a trespass insidea person's home.346 Justice Louis Brandeis vigorously dissented, chastisingthe Court for failing to adapt the Constitution to new problems: "[I]n theapplication of a Constitution, our contemplation cannot be only of what hasbeen, but of what may be.,, 347 The Olmstead Court had clung to theoutmoded view that the privacy protected by the Fourth Amendment wasmerely freedom from physical incursions. As a result, for nearly fortyyears, the Fourth Amendment failed to apply to wiretapping, one of themost significant threats to privacy in the twentieth century. 34' Finally, in1967, the Court swept away this view in Katz v. United States,349 holdingthat the Fourth Amendment did apply to wiretapping. These eventsunderscore the wisdom of Brandeis's observations in Olmstead-the land-scape of privacy is constantly changing, for it is shaped by the rapid paceof technological invention, and therefore, the law must maintain greatflexibility in conceptualizing privacy problems. This flexibility is impeded by the use of an overarching conception ofprivacy. Trying to solve all privacy problems with a uniform and
privacy which the law protects."355 ' For example, in Penwell v. TaftBroadcasting Co., the court dismissed a public disclosure action for thefilming and broadcast of the wrongful arrest of a married couple becausethe arrest was filmed in a place "left open to the public eye."356 '
355. Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. 1979). 356. Penwell v. Taft Broad. Co., 469 N.E.2d 1025, 1028 (Ohio App. 1984). 357. See supra Part II.A. 358. This conception of privacy would more appropriately account for the recent controversy overthe autopsy photographs of Dale Earnhardt, a famous race car driver who died while racing in 2001.Over thirty photographs were taken of Eamhardt's cadaver. Earnhardt's wife sought to keep theautopsy photographs of Eamhardt from the public. Under Florida's public records law, autopsyphotographs are public documents, and the owner of a website that specialized in posting gruesomeautopsy photographs (along with a number of newspapers and media entities) were interested inobtaining the photographs. In response, the Florida legislature passed a law restricting the disclosure ofautopsy photographs unless the party seeking disclosure obtained a court order by showing good causefor disclosure. A Florida court upheld the law, stating that the "publication of a person's autopsyphotographs constitutes a unique, serious, and extraordinarily intrusive invasion of the personal privacyof that person's surviving family members." Eamhardt v. Volusia County Office of the Med. Exam'r,No. 2001-30373-CICI, slip op. at 7 (7th Cir. July 9, 2001). The court further stated that "[tihere is a2002] CONCEPTUALIZINGPRIVACY 1149
substantial injury to families when strangers are permitted carte blanche to go through their loved ones'autopsy photographs. In a decent society that should be recognized perse." Id. at 9. 359. These techniques were among those employed by the Nazis during the Holocaust. 360. See, e.g., WILLIAM IAN MILLER, THE ANATOMY OF DISGUsT 147 (1997) ("Clearly defecationis degrading and contaminating. It is hedged in with rules about appropriateness as to place. And toviolate those rules is a cause for disgrace and shame."). 361. 255 N.E.2d 765 (N.Y. 1970). 362. See id. at 767. 363. Id. at 770. 364. Id. 365. Id. 366. Id. at 771.1150 CALIFORNIA LA W REVIEW [Vol. 90:1087
withdrawing."367' Thus, the court held that this issue depended "on thenature of the proof."368 Based on its example, however, surveillance in pub-lic would constitute an invasion of privacy only if it revealed certain factsor information commonly deemed "private" such as financial information. In a well-reasoned concurring opinion, Judge Brietel contended thatalthough the common-law privacy torts are "subdivided... into separateclassifications," these classifications are neither "frozen or exhausted." '69According to Brietel, "it is premature to hold that the attempted entrapmentof plaintiff in a public place by seemingly promiscuous ladies is noinvasion of any of the categories of the right to privacy."37 Further, Brietelreasoned, "while allegations treated singly may not constitute a cause ofaction, they may do so in combination, or serve to enhance other violationsof the right to privacy."37' As Brietel's concurrence correctly noted, the majority lost sight of theforest for the trees. The purpose of General Motors' plan was to employ itsconsiderable power in a campaign to disrupt Nader's personal affairs. Thecourt should have focused on the way in which the company's actionsaimed to disrupt Nader's life, and the paramount social importance ofavoiding such exercises of power designed to deter, harass, and discreditindividuals, especially ones who are attempting to raise important socialand political issues. General Motors focused its assault on personal aspectsof Nader's life: his friends, his sexual behavior, his conversations, and hisdaily activities. These are aspects of life we commonly consider to be pri-vate, and with regard to Nader, these aspects of his life were irrelevant tothe consumer advocacy issues he was raising against General Motors. Thedisruption involved in this case was not a loss of secrecy, as nothing in thiscase indicates that any of Nader's secrets were uncovered or disclosed.Much of the information gleaned by General Motors was not intimate.There was no evidence that General Motors discovered any embarrassingfacts or that Nader's reputation was harmed. Nor was there a loss of controlover information. Rather, the facts of this case suggest a different type ofdisruption, one that should be conceptualized from the bottom up by focus-ing on the situation at hand. General Motors' campaign of harassment, sur-veillance, and investigation created a form of systemic oppressiveness, anexercise of power that is profoundly suffocating and threatening to a per-son's private life. This type of power has a significant potential to renderpeople vulnerable and helpless, as if they are hunted prey or prisoners un-der constant guard.
367. Id. 368. Id. 369. Id. at 772 (Brietel, J., concurring). 370. Id. at 771. 371. Id.2002] CONCEPTUALIZINGPRIVACY
Instead of dissecting the situation and placing each invasion into preex-isting categories of privacy, the court should have assessed the whole situa-tion. By slicing off parts of the case and compartmentalizing them intocategories, the court impeded a jury's ability to consider the full situation.Certain disruptions, such as the one in Nader, are created cumulatively bythe aggregation of isolated acts which together can be oppressive. In short,rather than look for isolated privacy harms based on existing categories, thecourt should have focused on social practices and their disruption. Thisfocus would have enabled the court to better assess the nature and effectsof the power that General Motors exercised. Indeed, one of the most impor-tant reasons for protecting privacy is to prevent stifling exercises of poweremployed to destroy or injure individuals. A third application of the pragmatic approach to conceptualizing pri-vacy demonstrates the profound problems with clinging to a particular con-ception of privacy that is not well-suited for grappling with the privacyproblems of the Information Age. In a series of decisions, the Court, viewingprivacy as secrecy, held that there is no reasonable expectation of privacy forinformation known by or exposed to third parties. In United States v.Miller,372 the Court concluded that a person does not have a reasonable ex-pectation of privacy in her financial records kept by her bank.373 Analogiz-ing to a series of cases in which a person's friend betrays their secret or aperson divulges information to a police informant or undercover officer, 7 4the Court concluded that "the Fourth Amendment does not prohibit theobtaining of information revealed to a third party and conveyed by him toGovernment authorities."375 ' Similarly, in Smith v. Maryland,76 the Courtheld that there was no reasonable expectation of privacy in pen registers (alisting of the phone numbers a person dials) because they were turned overto third persons (phone companies).377 Since people "know that they mustconvey numerical information to the phone company" and that the phonecompany can and does record this information, people cannot "harbor anygeneral expectation that the numbers they dial will remain secret."378'
privacy created to solve other privacy problems, judges and legal scholarshave not yet been able to adequately grapple with the privacy problemscreated by the collection and use of personal information. For example, inU.S. West, Inc. v. FederalCommunications Commission,382 a telecommuni-cations carrier challenged on First Amendment grounds the privacyregulations of the Federal Communications Commission ("FCC"), whichrestricted the use and disclosure of customers' personal information unlessthe customers gave their consent. The court, which determined that theregulations involved a restriction on commercial speech, analyzed theregulations under the CentralHudson intermediate scrutiny test.383 In con-cluding that the regulations failed the Central Hudson test, the court rea-soned that the FCC's asserted state interest in protecting consumer privacywas not "substantial."38' 4 Noting that privacy was a very broad concept, the
379. See, e.g., Jaffee v. Redmond, 518 U.S. 1 (1996) (psychotherapist-patient privilege); UpjohnCo. v. United States, 449 U.S. 383 (1981) (attorney-client privilege); Hammonds v. Aetna Cas. & Sur.Co., 243 F. Supp. 793 (D. Ohio 1965) (finding third parties liable for inducing breach of patient-physician confidentiality). 380. See Daniel J. Solove, Access and Aggregation: Privacy, Public Records, and theConstitution,86 MINN. L. REv. (forthcoming 2002). 381. Solove, supra note 83, at 1398. 382. 182 F.3d 1224 (10th Cir. 1999). 383. Id. at 1233. 384. Id. at 1234-35.2002] CONCEPTUALIZINGPRIVACY 1153
court held that the FCC did not "specify the particular notion of privacyand the interest served."385' The court, however, harbored its own implicit