Visionary Pragmatism and the Value of Privacy in the Twenty-First Century

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Michigan Law Review, Vol. 108, p. 1170, 2010

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Danielle Keats Citron; Leslie Meltzer Henry
information privacy; cyberspace law
paper description
Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment. In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value of privacy protections. His pragmatic approach, which includes a taxonomy of privacy problems, succeeds because it is as dynamic as it is functional. It is poised to respond to existing privacy issues, yet nimble enough to tackle emerging problems. Without further guidance to policymakers about how to apply his framework, however, Solove’s proposal is susceptible to precisely the kind of non-pragmatic decision-making he eschews. It offers no safeguards, for example, to prevent decision makers from rendering judgments based on their overarching philosophies, preferences, or emotions, and it provides little advice to policymakers weighing competing privacy risks. In these respects, Solove’s approach would benefit from a more transparent decision-making process as well as rules of thumb intended to guide policymakers through some of privacy’s more complicated terrain. Solove provides an excellent aerial map of privacy, but to fulfill pragmatism’s promise, he needs to get closer to the ground.