BY ARI EZRA WALDMAN, 69 U. Miami L. Rev. 559 (2015).
Introduction: Most individuals think of the private world as a place distinct or separate from other people. Private spheres presume the existence of public spheres, but only as things from which to detach. I disagree. What follows is a reorientation of the way we think about privacy in the information-sharing context around sociological principles of interpersonal trust rather than rights-based doctrines of autonomy and choice. The argument is simple: privacy is not exclusively bound up with concepts of choice, autonomy, or seclusion; rather, privacy is a social fact—a constant in our lives—that is based on relationships of trust among individuals and between individuals and institutions. In short, we share when we trust; we retain privacy rights and interests in contexts of trust. Or, put another way, what makes expectations of privacy reasonable are expectations of trust.
Privacy scholarship is no stranger to social theory, but the relationship is still underdeveloped. Both lawyers and sociologists appear to have taken on the traditional assumption that the private world is distinct from the public world. In one of his major works, Erving Goffman lamented the “process of personal identification,” or how easy it is to amass personal information about any given individual and make public his social identity. He saw individuals as nodes at the center of several social networks that knew different things about those individuals, thus recognizing that some personal information can be withheld, or kept private, from the general public at the individual’s discretion. And Goffman is not alone. The sociologist Georg Simmel began his seminal article, The Sociology of Secrets and of Secret Societies, by stating that “[a]ll relationships of people to each other rest . . . upon the precondition that they know something about each other,” but recognizing that we rarely, if ever, know everything about another person. Our perceptions of others, based on what we know, what we think we know, and both true and misleading facets of personality, are true for us, even if they are manipulated by a delicate balance between secrets and disclosures: “Our fellow man,” Simmel wrote, “either may voluntarily reveal to us the truth about himself, or by dissimulation he may deceive us as to the truth.” He may, in other words, choose to keep certain things private and choose to make certain things public.
Public opinion polls suggest that when most people think of privacy and private things, they think of protection, being hidden, or separation. The popular view is that private things are walled off from others or limited to the very few. Some consider certain things and places, like a diary or a bathroom, private because of the very fact that they are not open for public consumption and separated from the public’s access. Privacy has come to be defined by walls or property lines, or the “loss of shared experience,” according to the social psychologists Robert Laufer and Maxine Wolfe.
The traditional view of privacy is similar, focusing less on spaces than on what it means to define a place or a thing as private. For many, privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy is his respite from the prying, conformist eyes of the rest of the world and his expectation that the things about himself that he wants to keep private will remain so. I will call this, generally, the “rights conceptions of privacy” to evoke the centrality of the individual, his inviolability, and the Lockean and Kantian origins of this idea.
Under this umbrella are two seemingly distinct strands. The first, which I will call negative, sees the private sphere as a place of freedom from something. It includes notions of privacy based on seclusion, separation, and private spaces, as well as conceptions based on the sanctity of private things, like discrediting secrets or intimate information. Common to these ways of thinking about privacy is an element of separation, suggesting that they provide freedom from the public eye. The second rights conception of privacy is positive. This view retains the assumption of separation, but uses it for a different purpose—namely, for the opportunity to grow, develop, and realize our full potential as free persons. It conceives of privacy as affirmatively for something, as necessary for full realization of the liberal, autonomous self.
But distinguishing between the public and private assumes, without evidence, the normative implications of the distinction: that privacy is always going to be something different, separate, or apart from the public. Nor is a public-private distinction either a theory of privacy or particularly helpful in applying a theory to answer questions of law and policy.
The rights conceptions of privacy, as Dan Solove argued in his article, Conceptualizing Privacy, suffer from several flaws. Professor Solove argues that they are at times too broad—potentially limitless and unworkable—or too narrow—failing to account for many things we would naturally consider private. I share some of these criticisms. I also argue that the rights conceptions of privacy are too simple. Economists like Alessandro Acquisti, legal scholars like Lior Strahilevitz, culture and media scholars like Helen Nissenbaum, and surveys con- ducted by the Pew Internet and American Life Project reveal that sharing and online social life are far more nuanced. Together, their work suggests that free choice is not the shibboleth of privacy in the information-sharing context. There is more to it. I argue that the missing piece is trust.
Trust is a “social fact” of cooperative behavior. It is a sociological institution that is manifested by reciprocal exchanges and assumptions about one’s interactional partner. In this Article, I employ a generally accepted definition of interpersonal trust from the sociological literature: trust is an expectation regarding the future actions and intentions of particular people or groups of people. It is, to use a phrase from the sociologists J. David Lewis and Andrew Weigert, a “functional necessity for society” because, among other things, it greases the wheels of effective sharing: you interact when you trust. In this Article, I argue that spheres of privacy mirror spheres of trust: when we trust, we share; when we do not trust, we do not share. We know this because our sense of when our privacy is invaded is similar to the sense of our trust being breached. Empirical research lends strong credibility to this hypothesis. When sharing occurs in contexts of trust, the law of privacy—whether through tort, constitutional, or statutory law—should protect that incident of sharing against subsequent misuse or wider disclosure. . . . Full Article.
Recommended Citation: Ari Ezra Waldman, Privacy as Trust: Sharing Personal Information in the Twenty-First Century, 69 U. Miami L. Rev. 559 (2015).