Vol. 21 No. 9 (September, 2011)
PRIVACY IN CONTEXT: TECHNOLOGY, POLICY AND THE INTEGRITY OF SOCIAL LIFE, by Helen Nissenbaum. Stanford, CA: Stanford Law Books, 2010.304pp.Cloth $70. ISBN 9780804752367. Paper $24.95. ISBN: 9780804752374. E-Book $24.95. ISBN 9780804772891.
Reviewed by Lynne S. Viti,
Writing Program, Wellesley College AND Arts, Humanities and Social Sciences,
Franklin W. Olin College of Engineering. Email: lviti
[at]wellesley.edu.
In this treatise on privacy and
technology, Helen Nissenbaum combines privacy theory, legal case studies and
philosophical analysis to good effect. A distinguished philosopher and expert on
ethics and technology, Nissenbaum has previously delved into the ethics and
legality of facial recognition software and collaborated on the creation of
browser extensions to protect users against tracking and profiling on the
Internet. In this philosophical inquiry into the clash between privacy and
technology, she examines the threats posed to privacy by a range of
technological advancements over the past two decades, and proposes a systemic
approach to determining whether and when curtailing privacy through technology
should be deemed permissible and even salutary.
Nissenbaum first reviews a
plethora of new technologies, from the Internet and the multiple search engines
users rely on to navigate it, to radio frequency identification (RFID),
telephone caller ID, closed circuit tv in public spaces, facial recognition
devices, computer-assisted accumulation and storage of personal data, and mobile
telephones. She then turns to the difficult task of parsing the privacy issues
these technologies give rise to. In creating a heuristic to assess the benefits
and burdens of technology on individuals, she is careful to evaluate these
factors not merely in terms of established legal doctrines and traditional
philosophical notions of privacy, but also in light of what she terms contextual
integrity. In short, to
decide whether and in what particular context a technology offends our common
moral sense of privacy, she has developed a system to probe and dissect the many
social contexts in which a technology is put to use.
Drawing on philosophers from
Mill and Bentham to twentieth and twenty-first century commentators – including, inter
alia, Michael Foucault, Gerald Dworkin, Charles Fried, Anita Allen, and
Eugene Volokh – Nissenbaum arrives at what she asserts is a generally shared
concept of privacy in democratic societies. She acknowledges that any waiver of
what we consider private information must be wholly conscious, whenever we
permit technology to observe and gather data about our health, spending habits,
employment, and our most fervent beliefs. In the first of three main sections of
the book, Nissenbaum reviews the “democratization of database technologies”
(p.38), resulting from the decreasing cost of both hardware and software used to
track individuals and their habits and activities. She describes “massive and
deep databases” (p.36) and [*602] technology’s
enhanced ability to stockpile information about us, and then introduces the
vocabulary of information technology and digital media. In particular, she
focuses her introductory chapters on “omnibus service providers … a thriving
industry of information service providers who sell products and services …
online data vendors, information brokers, information services …” (p.45) She
notes that these entities differ from institutions that in the past gathered
information about us as an essential component of their raison d'etre –
hospitals, credit card companies, insurers, and educational institutions. She
points to the most egregious purveyors of private information: Acxion
Corporation, ChoicePoint, and First Advantage corporation (owned by
Lexis/Nexis), and paints a disturbing picture of “a spiraling feedback loop …
vast repositories of digitized records of personal information” (p.45)
generating an ever greater demand on the part of companies and governments for
the collection of such data.
Nissenbaum also considers the
effects on privacy effectuated by social networking sites like Facebook,
LinkedIn, and My Space, and the litigation these sites spawned in their early
days. This litigation was initiated primarily by job applicants ruled out of the
hiring process because of Facebook posts revealing drug use, workers fired for
posting negative comments about their employers, or individuals “tagged” in
photographs posted on Facebook and similar sites without permission. More
pernicious, Nissenbaum opines, are privacy invasions resulting from software’s
capacity to monitor and track, both on the World Wide Web and in the actual
world. Tracking systems via keystrokes on computers, swipe card entry systems,
RFID systems, and clickstream tracking system comprise an arsenal of these
privacy-invading tools. All these technologies, Nissenbaum notes, have given
rise to a new field of scholarly inquiry –
“’surveillance studies’” (p.63) – which focuses not only on monitoring and
tracking, but also on promoting “’fair information practices’” (p.63). This
inquiry extends well beyond critiquing the tracking of an individual’s Web usage
or viewing his EZ pass records, to the study of privacy issues raised by
journalists who disclose sensitive information, as recently seen in the Murdoch-News
of the World scandal in the U.K.
The essential question that
guides Nissenbaum’s inquiry is “…how do we tease apart the benefits [of
technology] from the threats, how do we evaluate them and craft sensible
policies?” (p.63) To answer this guiding question, she interrogates current
approaches to assessing threats to privacy, including popular opinions gleaned
through surveys, views of advocacy groups, and the views of worried or resigned
individuals who fear their privacy is fast disappearing. Nissenbaum rejects the
democratic approach, that is, letting stakeholders vote to determine which
technologies should be curtailed because they violate the majority’s sense that
privacy is sacrosanct. She emphasizes privacy’s “moral weight, its importance as
a value … worth taking seriously because it is among the rights, duties, or
values of any morally legitimate social and political system” (p.66).
Of particular interest is
Nissenbaum’s dissection of what she labels “the private-public dichotomy” in
privacy [*603] analysis.
She rejects this approach, taking her cue from Israeli scholar Ruth Gavison, who
argues for a “neutral conception – describing what privacy is without getting
into the question of whether it is something worth working towards and enjoying”
(p.68). Nissenbaum agrees with Gavison that it is necessary to define privacy in
neutral terms in order to build legal and moral conceptions upon it. Such an
approach “leaves open the possibility that in certain circumstances less privacy
might be better than more and that reductions in privacy need not constitute
violations or intrusions or incursions” (p.68).
Nissenbaum examines trade-offs
in harnessing new information technologies, “the force of countervailing
interests and values” that she believes current discussions of privacy largely
ignore (p.108). An obvious example of the struggle between privacy purists and
those who wish to use technology for information gathering, storage and
manipulation is the clash between privacy and security in the post 9/11 world.
Through her rich exploration of contextual privacy and the many ways in which
social context requires us to constantly revise our ideas of what ought to be
private and when an individual’s claim of privacy must yield to broader social
goals and concerns, Nissenbaum provides a nuanced, thoughtful discussion of the
issues and a rigorous way to calculate the benefits and burdens of a technology
that at first glance disturbs our expectations of privacy.
The most useful section for
those teaching courses on privacy law is Part III, “The Framework of Contextual
Integrity,” in which Nissenbaum reiterates her claim that “a right to privacy is
neither a right to secrecy nor a right to control, but a right to appropriate
flow of information” (p.127). This notion of “appropriateness” is the linchpin
of the contextual integrity approach, whereby the right to privacy only makes
sense if we accept it as “a right to contextual integrity” which “varies from
context to context” (p.129). Nissenbaum concludes that privacy is not culturally
relative, nor is it a universal value; rather, she maintains that an
individual’s expectations as to privacy are invariably tied to “the background
social situation” (p.129) By way of illustration, Nissenbaum applies the
heuristic of contextual integrity to two events in recent memory: the
Clinton-Lewinsky scandal, with a focus on Linda Tripp’s secret recording of her
telephone conversations with Monica Lewinsky, and the passage of the
Gramm-Leach-Bliley Act (1999), which governs the collection, disclosure and
protection of personal information. Turning to the contexts of education, health
care, psychoanalysis, voting, and employment law, she defends the contextual
integrity heuristic as “a more sensitive instrument" for flagging and evaluating
privacy breaches than a one-rule-fits-all measure.
Nissenbaum’s book is
provocative and thoughtfully organized. Her contextual integrity heuristic is a
useful mechanism for evaluating the ways in which technology limits, impinges
upon or altogether abridges privacy. By eschewing the public/private dichotomy
and probing the social context in which a technology functions, she addresses
these issues while remaining fully cognizant of their complexity. Explanatory
endnotes and an exhaustive [*604] list
of references provide ample fodder for those wishing to delve deeper into this
topic.
The book’s flaws are few. Although Nissenbaum assumes that the reader is thoroughly conversant with nineteenth and twentieth century philosophers, this may not be true for all students, especially undergraduates. Graduate students will benefit from reading Nissenbaum’s theories and practical approaches to parsing the ways in which technology challenges privacy. The first printing would have benefited from a more rigorous copy editing. Nissenbaum’s prose style at times is verbose, with unnecessarily complicated syntax. These are cavils, however. Either in part or in full, Privacy in Context belongs in the syllabus of any course on privacy law, ethics and technology, or philosophy of law.
© Copyright 2011 by the author, Lynne S. Viti.