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Cited by 1,388Law, Rights, and FreedomsDigitalization, Law, and RegulationPrivacy, Security, and Data Protection

The DOI matches its Crossref record; 2 of the 26 references it cites were found in a registry or an index; none of the 109 sources its claims cite is checked for support yet.

A Taxonomy of Privacy

Open access
Solove, Daniel J.·2006·University of Pennsylvania Law Review
DOI 10.2307/40041279
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Abstract

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests. In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms. A new taxonomy to understand privacy violations is thus sorely needed. This article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.

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Crossref · 10.2307/40041279

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  • Probably not a substantial claim. 193
  • It may state two separate claims as one. 93
  • The quote only partly states this claim. 1
235 of 235

  • The paper relies on this without support.

    Meaningful generalizations can be made about potentially harmful or problematic activities.

    “about which I believe meaningful generalizations can be made.”

  • The paper relies on this without support.

    The law can serve as a source for determining what privacy violations society recognizes.

    “I will frequently use the law as a source for determining what privacy violations society recognizes.”

  • The paper relies on this without support.

    The question of which matters and activities are private is too culturally variable and contextual to be the focus of the taxonomy.

    “Since the question of which matters and activities are private is too culturally variable and contextual, this taxonomy focuses on potentially harmful or problematic activities”

  • The paper relies on this without support.

    The taxonomy can be useful for the law even though it limits its focus to activities that harm or cause problems for private matters or activities.

    “Despite the fact that the taxonomy limits its focus to the activities that harm or cause problems for private matters or activities, I believe that the taxonomy serves as a useful way for the law to approach and comprehend privacy problems.”

  • The paper relies on this without support.

    Social control can be beneficial and every society must exercise a sizeable degree of social control.

    “since social control can be beneficial and every society must exercise a sizeable degree of social control.”

  • The paper relies on this without support.

    People expect certain limits on what is known about them and on what others will find out.

    “People expect certain limits on what is known about them and on what others will find out.”

  • The paper relies on this without support.

    People give out bits of information in different settings, only revealing a small part of themselves in each context.

    “People give out bits of information in different settings, only revealing a small part of themselves in each context.”

  • The paper relies on this without support.

    People selectively spread around small pieces of data throughout most of their daily activities, and they have the expectation that in each disclosure, they are revealing relatively little about themselves.

    “Indeed, people selectively spread around small pieces of data throughout most of their daily activities, and they have the expectation that in each disclosure, they are revealing relatively little about themselves.”

  • The paper relies on this without support.

    People have expectations about how the data they give out will be used.

    “Secondary uses thwart people's expectations about how the data they give out will be used.”

  • The paper relies on this without support.

    People often do not read or understand privacy policies.

    “But even with privacy policies stating that information might be used in secondary ways, people often do not read or understand these policies.”

  • The paper relies on this without support.

    In the Information Age, much of what we do is recorded by third parties.

    “In the Information Age, much of what we do is recorded by third parties.”

  • The paper relies on this without support.

    Personal information is increasingly used to make important decisions about our lives.

    “But in a world where personal information is increasingly used to make important decisions about our lives, powerlessness in this arena can be significantly troublesome.”
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  • Stanley is cited under two different reporter volumes

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    The paper cites the same Stanley decision at page 564 of both volume 394 and volume 395 of U.S. Reports. At least one reporter volume is wrong.

  • Two different acts are assigned the same public-law number

    Minor

    The paper assigns Pub. L. No. 90-351 to both the Federal Communications Act of 1934 and the Omnibus Crime Control and Safe Streets Act of 1968. Those distinct acts cannot both have that public-law number.

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  1. [1]1. L. REV. 1609, 1611 (1999) ("At present, however, no successful standards, legal or otherwise, exist for limiting the collection and utilization of personal data in cyberspace."). 181 SOLOVE, THE DIGITAL PERSON, supra note 40, at 1. 182 Clarke, Information Systems, supra note 169, at 20. 183
  2. [2]2. As Richard Sobel observes, "[i]dentity systems and documents have a long history of uses and abuses for social control and discrimination." Richard Sobel, The Degradation of Political Identity Under a National Identification System, 8 B.U. J. SCI. & TECH. L. 37, 48 (2002). Indeed, one of the primary reasons that governments created passports and identity cards was to restrict movement, alter patterns of migration, and control the movements of poor people and others viewed as undesirable. Marc Garcelon, Colonizing the Subject: The Gene- alogy and Legacy of the Soviet Internal Passport, in DOCUMENTING INDIVIDUAL IDENTITY 83, 86 (Jane Caplan & John Torpey eds., 2001). 184 Sobel, supra note 183, at 49. 185 Anonymous speech has a long history as an important mode of expression. Between 1789 and 1809, numerous Presidents and Congressmen published anonymous political writ- ings. SMITH, supra note 111, at 41. Ben Franklin used over forty pen names during his life. Id. at 43. Indeed, James Madison, Alexander Hamilton, and John Jay published the Federalist Papers using the pseudonym "Publius." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 n.6 (1995). The Anti-Federalists also used pseudonyms. Id. 186 As Gary Marx notes, anonymity can "facilitate the flow of information and commu- nication on public issues" and "encourage experimentation and risk taking without facing large consequences, risk of failure, or embarrassment since one's identity is protected." Gary 206
  3. [9]9. U.S.C. § 1030 (2000 & Supp. 2002). 212 See Daniel J. Solove, The New Vulnerability: Data Security and Personal Informa- tion, in SECURING PRIVACY IN THE INTERNET AGE 11-12 (Margaret Jane Radin et al. eds., forthcoming 2006), available at http://ssrn.com/abstract=583483 (arguing that the law fails to adequately guard sensitive information, and that a reconceptualization of the legal duties in- formation-keepers owe their customers is necessary). 213 See, e.g., Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2707(c) (2000) (setting a minimum $1000 fine per violation); Video Privacy Protection Act of 1988,
  4. [11]11. See Doe v. Chao, 540 U.S. 614, 616 (2004) (construing
  5. [12]12. U.S.C. § 552a(g)(4) (2000)). 214 536 U.S. 822, 826 (2002). 215 Id. at 827, 838. 224
  6. [22]22. U.S.C. § § 3401-3421 (2000)). 262 Id. at 438. 263 Id. at 438-39. 264 Id. at 442. 265 Id. at 443. 266 Id. at 442. 267 442 U.S. 735, 743 (1979). 268 SOLOVE, THE DIGITAL PERSON, supra note 40, at 201. 269 See id. at 202-09 (discussing the consequences of applying outdated privacy protec- tion schemes to modern times). 270 Id. at 201-02. 369
  7. [23]23. N.E. 442, 442 (N.Y. 1902). 370 Id. 371 Id. Roberson became so ill that she had to see a physician. Id. 372 Id. at 442-43. 373 Id. at 447-48 (applying Warren & Brandeis, supra note 21). 374 Editorial, The Right of Privacy, N.Y. TIMES, Aug. 23, 1902, at 8, reprinted in Denis O'Brien, The Right of Privacy, 2 COLUM. L. REV. 437, 438 (1902). 375 Comment, An Actionable Right to Privacy?: Roberson v. Rochester Folding Box Co., 12 YALE L.J. 35, 36 (1902). 376 O'Brien, supra note 374, at 437. 377 See, e.g., Irwin R. Kramer, The Birth of Privacy Law: A Century Since Warren and Brandeis, 39 CATH. U. L. REV. 703, 717 (1990) (noting that the statutes "made it both a tort and a misdemeanor . . . to use another's name, portrait, or picture for commercial purposes without the subject's consent"). 378
  8. [26]26. HARV. L. REV. 1892, 1894 (1981) (dating the first mention to a report written in 1499); see also Semayne's Case, 77 Eng. Rep. 194, 195 (
  9. [34]34. U.S. 113, 153 (1973).
  10. [40]40. Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978) ("There is another strand to the right to privacy properly called the right to confidentiality."). 457 Id. at 252. 458 Id. at 251; Warren & Brandeis, supra note 21, at 195. 459 Union Pacific, 141 U.S. at 251. 460 394 U.S. 557 (1969). 461 410 U.S. 113, 152 (1973). 462 405 U.S. 438, 453 (1972). 463 Stanley, 394 U.S. at 564. 464 Id. 465 Id. 466 277
  11. [41]41. U.S. 438 (1928). 467 Stanley, 395 U.S. at 564 (quoting Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting) (internal quotation marks omitted)). 468 See Warren & Brandeis, supra note 21, at 195. the Court's reasoning suggests, necessitates governmental intrusion into one's home. The Court noted that people have "the right to be free from state inquiry into the contents of [their] library." 469 Linking decisional inter- ference with intrusion, it stressed that "a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." 470 Further capturing the relationship between the two catego- ries, Robert Post contends that the intrusion tort protects "territories of the self," which are critical to remaining "an independent and autonomous per- son." 471 In Lawrence v. Texas, the Court further demonstrated the frequent over- lap between decisional interference and intrusion in striking down a law that prohibited consensual homosexual sodomy. 472 The Court reasoned that "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free per- sons." 473 The statute was unconstitutional because of "its [unjustified] in- trusion into the personal and private life of the individual." 474 Moreover, the Court stated: Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom ex- tends beyond spatial bounds. 475 The Court thus linked decisional interference to intrusion. Decisional interference also bears an indirect resemblance to blackmail, in that laws restricting consensual private sexual behavior often give rise to blackmail. The Lawrence Court noted that in 1955, when crafting the Model Penal Code, the American Law Institute recommended against criminalizing "consensual sexual relations conducted in private" 476 in part because "the statutes regulated private conduct not harmful to others," and because "the laws were arbitrarily enforced and thus invited the danger of blackmail." 477 Indeed, as Angus McLaren recounts, blackmail historically 469 Stanley, 395 U.S. at 565. 470 Id. 471 Post, supra note 44, at 973. 472 539 U.S. 558, 578 (2003). 473 Id. at 567. 474 Id. at 578. 475 Id. at 562. 476 Id. at 572 (quoting MODEL PENAL CODE § 213.2 cmt. 2 (1980)) 477 Id. (citing MODEL PENAL CODE § 207.5 cmt. at 277-78 (Tentative Draft No. 4, 1955)). For an interesting discussion of Lawrence and public versus private places, see Lior

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Metadata

Authors
Solove, D. J.
Affiliations
George Washington University (US)
Corresponding author
Solove, Daniel J.
ORCID
Solove, Daniel J.
Venue
University of Pennsylvania Law Review
Publisher
JSTOR
Published
2006-01-01
Volume
154
Issue
3
Pages
477
ISSN
0041-9907 (ISSN-L)
DOI
10.2307/40041279
OpenAlex
W1526916602
Cited by
1,388
References
26
Citations by year
2026: 85 · 2025: 97 · 2024: 79 · 2023: 96 · 2022: 94 · 2021: 100 · 2020: 93 · 2019: 84 · 2018: 95 · 2017: 80 · 2016: 87 · 2015: 69 · 2014: 77 · 2013: 63 · 2012: 59
FWCI
74.07
Type
journal article
Language
en
Open access
Licence
public-domain
Locations
  • University of Pennsylvania Law Review (publishedVersion)
  • eYLS (Yale Law School) (submittedVersion, public-domain)
  • Penn Carey Law Legal Scholarship Repository (University of Pennsylvania) (submittedVersion, public-domain)
  • SSRN Electronic Journal (submittedVersion)
Funders
George Washington University
Topics
  • Social Sciences › Law › Law, Rights, and Freedoms
  • Social Sciences › Law › Digitalization, Law, and Regulation
  • Social Sciences › Sociology and Political Science › Privacy, Security, and Data Protection
Keywords
privacy, privacy law, data privacy, Fourth Amendment, evidentiary privilege, privacy harms, privacy torts, constitutional right to privacy

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