by Daniel J. Solove. Cambridge: Harvard University Press, 2008. 272pp. Hardcover. $45.00/£29.95/€31.50 ISBN: 9780674027725.
Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu.
Daniel J. Solove, an associate professor at George Washington University Law School, readily admits at the outset of his latest excursion into privacy law that the topic has “had a hold on [him]” for over a decade because of its “immense complexity, philosophical richness, and contemporary relevance” (p.ix). Solove’s book exhibits both a solid and critical command of this complexity and philosophical richness, and it succeeds in making the theoretical contribution he sets out for himself – to produce a book that is by no means the final word so much as a new, contemporary, relevant and important chapter in an ongoing conversation.
The concept of privacy has come a long way since its introduction in Warren and Brandeis’ seminal 1890 article. Over more than a century, philosophers, legal and political theorists, and jurists have sought to understand its dimensions. And the proliferation of new information technology in the 20th century – most notably the pervasive presence of the computer – has made privacy an even more pressing issue. Privacy is now an issue of global concern – at least in modern industrialized nations, all of which can point to numerous statutes, constitutional rights, and judicial decisions aimed at protecting privacy.
And yet, Solove laments, currently privacy is “a concept in disarray,” a sweeping concept encompassing “(among other things) freedom of thought, control over one’s body, solitude in one’s home, control over personal information, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations” (p.1). Even worse, courts and other policy-makers frequently have “a singular view of privacy in mind when they assess whether an activity violates privacy” (p.6). The results are either conflation of distinct privacy problems despite significant differences, or failure to recognize a problem entirely. Solove sets himself the task of bringing clarity to privacy’s current conceptual muddle.
He begins with a chapter critiquing existing attempts to conceptualize privacy by a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. His survey of the literature in each of these areas tends to focus on one or two leading contributions, surveying the criticisms of various scholars regarding each other’s conceptions of privacy, and suggesting a number of his own criticisms. Almost all of Solove’s criticisms boil down to what might be called the Goldilocks complaint: the theories are either too narrow or too broad (or sometimes too vague). More generally, Solove notes, the most prominent existing theories of privacy view it as a unitary concept with a uniform value that is unvarying across different situations. Solove contends that [*912] “with few exceptions, traditional accounts of privacy seek to conceptualize it in terms of necessary and sufficient conditions.” That is to say, most theorists attempt to define privacy by isolating a common denominator in all instances of privacy (as theorists of almost anything tend to do). But Solove argues that “the attempt to locate ‘essential’ or ‘core’ characteristics of privacy has led to failure” (p.8). He is, however, reluctant to jettison the term “privacy” altogether, finding it useful shorthand, a way to talk collectively about a web of interconnected yet distinct things – in short, “an umbrella term that refers to a wide and disparate group of related things” (p.45).
Solove devotes the remainder of the book to the development of an alternative approach to conceptualizing privacy. He describes four dimensions that characterize his approach: (1) method, (2) generality, (3) variability, and (4) focus. His “method” involves discarding the traditional way of conceptualizing privacy and embracing Ludwig Wittgenstein’s notion of “family resemblances.” As Solove understands Wittgenstein, certain concepts might not have a single common characteristic but instead draw from a common pool of similar elements. “Privacy, therefore, consists of many different yet related things” (p.9).
“Generality” means that privacy should be conceptualized from the bottom up rather than the top down, from specific contexts rather than abstractly. At the same time, Solove seeks to achieve some level of generality beyond the huge variety of specific contexts. “The appropriate degree of generality depends upon the purposes the theory aims to serve. My theory of privacy aspires to aid the crafting of law and policy” (p.40).
“Variability” involves elements of comparative law and policy along with sensitivity to culture-bound values. Solove gives a variety of historical examples demonstrating how notions about what information or matters are private have evolved throughout history. At the same time, any privacy theory “should avoid being too variable and contingent, or else it will not have lasting or widespread usefulness”(p.9). Assessment of whether a particular practice is private must look not only at the past and present, but also to a society’s future aspirations. “Privacy is a condition we create, and as such, it is dynamic and changing” (p.65).
Finally, any approach to a theory of privacy must have “focus.” In this dimension, Solove evokes John Dewey’s idea that philosophical inquiry should begin as a response to dealing with the problems and difficulties of real, everyday life. Solove also finds useful the pragmatism of William James, resisting universals and embracing specific situations – “a focus away from the notion of a priori knowledge – the view that there are objective and universal truths that exist prior to, and independently of experience” (p.47). Pragmatism, Solove argues, involves a particular relationship between theory and practice – “a view that theory should emerge from practical problems and help guide us in addressing them” (p.75). Consequently, Solove focuses [*913] on privacy problems. Because privacy invasion interferes with the integrity of certain activities and may inhibit or destroy some activities, Solove focuses on the specific type of disruption instead of attempting to identify the common denominator of these activities.
Essentially, Solove tells us, his approach to conceptualizing privacy involves understanding it pluralistically rather than as having a unitary common denominator. His focus on privacy problems seeks to be “contextual without being overly tied to specific contexts, flexible enough to accommodate changing attitudes toward privacy, yet firm enough to remain stable and useful” (p.9).
Solove agrees that a theory of privacy should articulate “why privacy is good or how it will further the good life” (p.78). Again, there have been a variety of abstract approaches, but Solove argues that privacy’s value differs depending on the type of problem it protects against. Privacy problems impede certain activities, and the value of privacy emerges from the value of preserving these activities. Thus, privacy does not have a uniform value; its value must be worked out through a balancing of opposing interests – and here legislators and jurists become particularly important. Under this pragmatic approach, the value of privacy is understood in terms of its practical consequences. Privacy should be weighed against contrasting values, and it should win when it produces the best outcome for society.
Traditional approaches see privacy as a personal right peculiar to the individual whose privacy is invaded; communitarians offer the critique that privacy cannot be viewed in purely individual terms without due consideration for the common good. For Solove, the value of privacy should be determined on the basis of its contributions to society. There is no inevitable contradiction between protecting individual privacy and safeguarding society’s interests. In fact, Solove tells us, “the value of safeguarding people’s privacy should be justified by its social benefits. . . . In direct contrast to John Locke, John Dewey noted that the individual is inextricably bound up in society: ‘We cannot think of ourselves save as to some extent social beings’” (p.91). Thus, Solove affirms Dewey’s insight that individual rights need not be justified as the immutable possessions of individuals; instead they are instrumental as judged by the contribution they make to the community’s welfare. This does not mean “that people’s injured feelings, reputations, or embarrassment are irrelevant to the value of privacy. Understanding the social value of privacy, however, requires that we demonstrate the benefits to society of remedying certain harms to individuals” (p.92).
While earlier theorists have proclaimed a particular overarching value of privacy (e.g. protecting intimacy, autonomy, freedom, self-development), Solove stresses that none of these (and many other) ends is furthered by all types of privacy. Privacy “does not possess a unitary value. Because privacy consists of a plurality of protections against different types of problems, its value is plural as well. The value of privacy emerges from the activities it protects” (p.98).
Chapter 5 introduces Solove’s own taxonomy of privacy, the explication of which covers roughly the second half of [*914] the book. In brief, Solove proposes a framework of four general types of privacy problems with sixteen subgroups. First is “information collection,” which consists of problems that arise in the gathering of information about individuals. Solove sees two distinct forms: surveillance and interrogation. A second group of problems, characterized as “information processing,” involve difficulties arising from the storage, usage, and analysis of personal data. Solove singles out five types of information processing: aggregation, identification, insecurity, secondary use, and exclusion. Third, “information dissemination” involves the transfer and publicizing of personal data; there are seven forms of information dissemination: breach of confidentiality, disclosure, exposure, increased accessibility, blackmail, appropriation, and distortion. Fourth, he identifies interference with one’s personal life, labeled “invasion,” which can take two forms: intrusion and decisional interference.
It would be well beyond the scope of this review to explain each of these. Suffice it to say that Solove does an admirable job of explicating each, identifying similarities as well as essential differences between the subgroups associated with each, and often showing how narrow conceptions held by legislators or jurists fail to address in a nuanced way the problems each creates. In the process, Solove demonstrates his solid command of the relevant source materials, from philosophical treatises to judicial opinions to statutory and constitutional sources, both domestic and international. (Incidentally, while some theorists argue that there are distinct differences between American and European or other nations’ fundamental approaches to privacy, Solove stresses that far more significant is the degree to which many countries recognize the same set of privacy problems – even while addressing them in different ways.) There is no doubt that his decade-long obsession has given him a formidable expertise in the field.
An important point that he frequently reiterates is that each of these privacy problems creates harms, and sometimes the law comprehends these harms well, but at other times the law fixates on one harm to the exclusion of others or lacks the tools to address certain harms. Protecting privacy requires careful balancing, because neither privacy nor its countervailing interests are absolute values. But because of the conceptual confusion that Solove so ably dissects, courts and legislatures often fail to recognize privacy problems, and thus no balancing ever takes place. In his concluding chapter, Solove offers several examples, and one in particular might serve as the paradigmatic illustration of the subtlety and nuance that Solove brings to discussions of privacy, and that others with similar interests might emulate.
Many cases involve a combination of several different kinds of privacy problems, and analyzing the privacy issues involves understanding the distinctions between these different problems. Solove singles out PECK v. UNITED KINGDOM, a case decided by the European Court of Human Rights (ECHR). In Great Britain, where closed-circuit television (CCTV) surveillance is widespread (and generally welcomed), a man attempted suicide by slitting his wrists with a knife on a public [*915] street – all recorded by CCTV. The police were called and the man survived. But to the man’s dismay, some short time afterward a photograph of him carrying a knife appeared in a newspaper article. The newspaper article said this man was intercepted wielding the knife and that a potentially dangerous situation was eliminated as a result of CCTV. A television station also broadcast the footage without obscuring his face, so that the man could be identified by people who knew him. A BBC show, CRIME BEAT, also broadcast the footage. Despite a BBC agreement with the government to obscure faces in CCTV footage, it failed adequately to do so, and completely failed to protect his identity in trailers for the show (the injury produced by this lapse in standards arguably was one with which the Queen herself could sympathize). The man sued the government, but the High Court in England dismissed the case, agreeing with the government that there was no violation of privacy, because the plaintiff’s actions were already in the public domain and that revealing the footage simply involved distributing a public event to a wider audience (an approach and a result with which many American courts would likely agree).
The man took his case to the ECHR, which disagreed vigorously with the English court’s opinion. The court reasoned that even if surveillance of a person in public does not invade privacy, “the recording of the data and the systemic or permanent nature of the record” (at 15, as quoted by Solove, p.195) may create a privacy problem. While the man was in public, he was not there to participate in any public event, nor was he a public figure. A few passersby could observe his actions, but public broadcast of the footage involved far more widespread viewing of his actions. The court noted that the government could have asked for the man’s consent to release the video to the media or could have obscured his face in the video images. He was awarded damages for his distress from the violation.
Solove praises the court’s opinion for its recognition that not all privacy problems are the same. The man’s actions may not have been private in the sense that they were secret or concealed; instead, the privacy problems here involved a combination of identification, secondary use, disclosure, accessibility, and perhaps even distortion.
As Solove states in his first chapter, there is a “fog of confusion that often envelops the concept of privacy. A lucid, comprehensive, and concrete understanding of privacy will aid the creation of law and policy to address privacy issues” (p.11). Solove’s book is certainly a major contribution to that understanding. One can only hope that jurists and other policy-makers give it the careful consideration it richly deserves.
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193-220.
PECK v. UNITED KINGDOM,  ECHR 44 .
© Copyright 2008 by the author, Philip A. Dynia.